Negligent Traffic Director

One who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. Restatement of Torts, § 323.

In September, a man was bicycling when a dump truck pulled along side him, but did not completely pass. The two rode like that for “an uncomfortable amount of time.” Ahead, the dump truck driver saw a driver who had been driving the opposite direction and was stopped, waiting to turn left. Cars were lining up behind the driver wanting to turn left and were beginning to pass him on his right.

The dump truck stopped and motioned for the driver to make his turn, which he did, and collided with the bicyclist who had not stopped along with the dump truck. The bicyclist sued both drivers for his injuries.

At the District Court, the Judge ruled that the dump truck driver was “no more responsible for the bicyclist than he was for any of the hundreds of other drivers on the road,” and that there is “no authority for the bicyclist’s proposition that a driver who courteously yields his right-of-way to a left-turning driver is responsible for determining if all other lanes of traffic are clear of pedestrians or bicycles or whatever may be there.” The bicyclist appealed this decision to the Supreme Court.

The Supreme Court re-iterated its adoption of the restatement of torts section quoted above. By making the decision to act, the dump truck driver assumed the responsibility of making sure that his action was reasonably prudent. The Court ruled that it was reasonably foreseeable harm could come to those traveling behind the dump truck from the driver’s decision to waive for the driver turning left to turn.

In deciding to direct traffic, the dump truck driver assumed the responsibility of directing traffic safely. The jury should be allowed to decide whether the truck driver breached that duty and whether that breach caused the bycyclist’s injuries and damages.

Default Judgment as a Discovery Sanction

Richardson, who was 84 years old at the time of her accident, fell in the locker room while taking a water aerobics class on a College campus. She suffered severe injury to her hip which required surgical reconstruction and months of rehabilitation. She filed suit against the state seeking recovery for her medical expenses as well as pain and suffering.

Richardson sent her first discovery requests to the State seeking information related to her case. Following the State’s response, she sent a second set of discovery requests which included an interrogatory and a request for production seeking information regarding other slip and fall accidents at the same facility. The State refused to answer all ten interrogatories in this second set of requests, claiming that the information was irrelevant, that the requests were not reasonably calculated to lead to the discovery of admissible evidence, and that the requests were vague and ambiguous. Additionally, the State offered no legally recognizable response to four of Richardson’s six requests for production. They simply responded, “Not applicable.”

Richardson sent a letter to the State, requesting an adequate response but the State failed to answer. Richardson then filed a Motion to Compel Discovery. The State responded to the motion by saying that the word “area” as used in “the area of Plaintiff’s fall” was too vague and ambiguous to answer. Initially, the State continued to contest Richardson’s requests for information about other falls, but during oral argument on the Motion to Compel finally agreed to provide that information. The District Court granted Richardson’s Motion to Compel, but did not grant her sanctions.

Following the Court order, Richardson reserved her discovery requests, with a few minor changes. Although the State provided answers to most of them, it continued to refuse to answer the questions regarding other falls in the facility. Finally, over seven months after Richardson’s initial request, over two months after discovery had closed, and more eleven days before trial – Richardson received a response to her originally submitted interrogatory and request for production regarding other falls at the facility.

There were brief descriptions of eight other falls resulting in injuries, and seven incident reports. However, the incident reports were of such a poor quality that legible copies had to be requested from the State which consumed more time before trial. Finally, a four day jury trial was held where the jury found eight to four that the State was not negligent.

Noting the Supreme Court “strictly adheres to the policy that dilatory discovery actions shall not be dealt with leniently,” the Court looked at appropriate sanctions. It noted that it had previously held that some discovery abuses warranted the imposition of a default judgment on the issue of liability and determined that it was appropriate in this case as well. The Court observed that “[t]he State’s concealment of the evidence of other falls prevented Richardson from assessing the merits of the State’s proffered defenses and building her case-in-chief. Additionally the belated disclosure preventing Richardson from conducting meaningful follow-up discovery in time for trial.”

Ultimately, the Supreme Court ruled that “the State’s pattern of willful and bad faith conduct outweighs the general preference for trial on the merits. Simply put, the State demonstrated clear disregard for a resolution on the merits when it improperly concealed important evidence by asserting frivolous objections, and subsequently sought to gain strategic advantage thereby.” On the basis, they entered a default judgment against the State on the issue of liability, and remanded for further proceedings to determine liability.

Contributory Negligence

Under § 27-1-702, contributory negligence does not bar recovery in an action for negligence resulting in death or injury to person or property if the contributory negligence was not greater than the negligence of the person or the combined negligence of all persons against whom recovery is sought. This means that a plaintiff could be found partially negligent but he could still recover damages from his suit.

For example, imagine that Fred is bicycling down the road when he is struck by Ben who is driving on the same road. Even if the jury finds that Fred was negligent in his bike riding because he was wearing headphones while riding, he can still recover damages in a suit against Ben so long as the jury finds that Ben’s negligence was greater than Fred’s. To put a number on it, so long as Fred was only 49% negligent, Ben’s negligence is greater than Fred’s and Fred can still prevail.

However, “any damages allowed must be diminished in the proportion to the percentage of negligence attributable to the person recovering.” This means that while Fred can recover damages in his suit against Ben, those damages must be reduced by whatever percentage negligent Fred was. So, in the earlier example where Fred was 49% negligent, any damages that were awarded to Fred in his suit would be reduced by 49%. He can still recover 51% of whatever is awarded to him, the percentage that Ben was responsible for.

If the jury finds that Fred’s negligence is equal to or greater than Ben’s negligence, then Fred will be unable to collect any damages under the rule. In a case with multiple defendants, the combined negligence of all the defendants is compared with that of the plaintiff to make the same determination.