Filed 1/23/15




                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT


MOHAMAD HARB et al.,
                                                                  F066839
   Plaintiffs and Appellants,
                                                         (Super. Ct. No. CV265887)
   v.
                                                                 OPINION
CITY OF BAKERSFIELD et al.,

   Defendants and Respondents.


         APPEAL from judgment of the Superior Court of Kern County. Eric Bradshaw,
Judge.
         Law Offices of Young & Nichols, Steve W. Nichols, Thomas A. Brill; The
Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiffs and Appellants.
         Marderosian, Cercone & Cohen, Michael G. Marderosian and Heather S. Cohen
for Defendants and Respondents City of Bakersfield, Bakersfield Police Department and
Claudia Payne.
         Borton Petrini, James J. Braze; Jones & Dyer, Gregory F. Dyer and Scott H.
Cavanaugh for Defendants and Respondents Hall Ambulance Service, Inc., and Brian
Dumont.
                                         -ooOoo-
       Mohamad Harb, M.D. was driving home from his shift at Kern Medical Center’s
neonatal intensive care unit when he suffered a stroke and drove his car onto a sidewalk.
The police officer who arrived at the scene did not call an ambulance immediately
because she deduced from Dr. Harb’s vomiting, slurred speech and disorientation that he
was intoxicated and, after a struggle, placed him in handcuffs. The first ambulance that
arrived on the scene left without Dr. Harb. Later, a second ambulance took Dr. Harb to a
hospital where he received treatment and survived, but the brain damage he suffered
rendered him unable to care for himself.
       Harb and his wife sued the City of Bakersfield (City), the responding officer, the
ambulance company, and the paramedic who drove the first ambulance. They alleged the
defendants’ delay in getting Harb medical treatment made the consequences of his stroke
much worse. The case was tried to a jury, which returned a defense verdict. Plaintiffs
appealed, contending the jury instructions contained two errors.
       First, plaintiffs argue a police immunity instruction (an officer is not liable if
exercising due care) should not have been given because it used confusing language and,
moreover, was unnecessary in a negligence case. We agree. While the immunity
instruction was a correct statement of the law in the abstract, it was unnecessary because
plaintiffs were already required to prove the police officer acted negligently. Also, the
instruction’s use of the phrase “exercising due care” without defining it, and without
explaining how the due care standard related to the reasonable care standard in the
negligence instructions, created an ambiguity. Based on the record before us, there was a
reasonable likelihood the police immunity instruction misled the jurors because it is
unlikely the jurors would have understood there was no immunity for a police officer
who acted negligently.
       Second, plaintiffs contend the jury should not have been instructed on comparative
negligence because Harb’s alleged negligent failure to manage his high blood pressure

                                               2
occurred before the accident and the defendants’ interaction with him. Plaintiffs contend
any preaccident negligence by Harb was irrelevant because (1) a tortfeasor takes the
plaintiff as she finds him and (2) plaintiffs were not seeking to recover damages caused
by the stroke, only damages resulting from the delay in treatment caused by the
defendants. Whether a plaintiff’s preaccident negligence is a type of comparative fault
under California law appears to be a question of first impression. We conclude that,
where a plaintiff is seeking damages only for the aggravation or enhancement of an injury
or condition, California will follow the majority view that a plaintiff’s preaccident
conduct cannot constitute comparative negligence when that conduct merely triggers the
occasion for aid or medical attention. As a result, defendants who render aid or medical
attention cannot reduce their liability for the harm resulting from their tortious acts and
omissions by attributing fault to the plaintiff for causing the injury or condition in the
first place.
       Under the facts of this case, the jury should not have been instructed on
comparative negligence and defendants should not have been allowed to argue Harb’s
neglect of his high blood pressure was comparative negligence that rendered him
responsible for all of the harm suffered.
       We also conclude the errors in the instructions were prejudicial.
       Therefore, the judgment is reversed and the matter remanded for a new trial.
                                            FACTS
       On November 24, 2007, Harb completed a 12-hour shift at Kern Medical Center’s
neonatal intensive care unit. While driving home, Harb suffered a hemorrhagic stroke. A
defense expert described the event as “an intracerebral hemorrhage into the substance of
his brain.”1

1        The defense expert stated an intracerebral hemorrhage was not a blocked artery
(i.e., an infarction), but an exploded artery that sprays blood under high pressure into the

                                              3
       As a result of the hemorrhage, Harb drove his car over a curb and halfway onto the
sidewalk. The impact with the curb twisted the right front wheel, bent the tire rims and
caused the right front tire to go flat. A sales manager at a nearby used car dealership
phoned 911 and reported the accident.
       At 6:55 p.m., the 911 operators dispatched Bakersfield Police Officer Claudia
Payne to the scene, advising her of a noninjury collision that involved a “possible
driving-under-the-influence driver.” At 6:58 p.m., Officer Payne arrived at the scene by
herself. Near the time Officer Payne arrived, Harb vomited, but she did not see it. Two
other officers arrived about a minute later.
       Officer Payne first spoke with the sales manager who had made the 911 call. The
sales manager told her that Harb had exited the vehicle, urinated on the sidewalk,
returned to the vehicle and appeared to be attempting to leave. The sale manager had
spoken with Harb to delay him until the police arrived.
       Officer Payne then spoke with Harb, saw a wet spot on his medical scrubs directly
below his chin, noted he was disoriented and asked for his car keys. Harb refused her
request and attempted to place the key in the ignition. Officer Payne opened the driver’s
door and, holding Harb by the arm, brought him around the back of the car to the curb.
Officer Payne did not detect the odor of alcohol on Harb’s breath and did not notice any
redness or watering in his eyes.
       Officer Payne directed Harb to sit on the curb behind his car and then sat down
with him. A struggle developed when Officer Payne attempted to handcuff him. When
Officers Galland and Arms arrived at the scene, Officer Galland saw the struggle and he
and Officer Arms ran to assist Officer Payne in cuffing Harb’s hand behind his back. It


substance of the brain and creates a cavity or hole in the brain that results in permanent
and irreversible brain damage.


                                               4
took all three officers to get the handcuffs on Harb. Officer Galland testified that he was
not aware of Harb hitting his head during the struggle, but at some point noticed a small
bump on the right side of Harb’s head.
       At 7:10 p.m., Officer Payne called for an ambulance. Four minutes later, Brian
Dumont, a paramedic and employee of Hall Ambulance Service, Inc., arrived at the scene
in an ambulance with Darcy Smith, an emergency medical technician (EMT), and Lori
Thomas, a trainee.
       Paramedic Dumont checked Harb’s condition by testing his blood glucose and
taking his blood pressure. Harb’s blood glucose was within the normal range and his
blood pressure was slightly high, which Dumont did not consider unusual under the
circumstances. Dumont asked Harb questions and received responses that were
confused. Consequently, Dumont described Harb as having an “[a]ltered level of
consciousness.” Dumont also performed a Glasgow Coma Scale2 test and gave Harb a
score of 14 out of 15 possible points, deducting one point for Harb’s speech.
       Paramedic Dumont testified he saw the police conduct two alcohol breath tests on
Harb at the scene and both tests results were 0.00. After the first test, a male officer said,
“The machine must be wrong.” After the second test, one of the officers said that Harb
was probably on drugs.
       Exactly what happened after Paramedic Dumont completed his assessment of
Harb is the subject of conflicting testimony. The police officers testified that Paramedic
Dumont told them that “[t]here is nothing medically wrong with this guy” and then
packed up his gear, rolled the gurney back into the ambulance, closed the doors and left.

2      The Glasgow Coma Scale is used to grade degrees of brain impairment. (People
v. Delgado (2013) 213 Cal.App.4th 660, 664.) The patient’s ability to open and move his
eyes is rated on a scale of one to four, speech is rated on a scale of one to five, and motor
control is rated on a scale of one to six. The lowest aggregate score of three would mean
the person was totally comatose or dead. (Ibid.)


                                              5
       In contrast, Paramedic Dumont testified he told the officers that the ambulance
crew would be transporting Harb to Kern Medical Center, a male officer asked why, and
Dumont told him it was because Harb needed to go to the hospital. Dumont testified he
informed the officers that Harb was not drunk and he did not find anything to indicate
Harb was on drugs; he then told the officers that Harb needed to be transported right
away. Dumont testified that (1) Officer Payne told him that the police would transport
Harb, (2) he asked Officer Payne if she was taking Harb to jail or to the hospital to be
evaluated, and (3) Officer Payne told him that she would take Harb to the hospital.
       At 7:24 p.m., the first ambulance left the scene without Harb.
       At about 7:27 p.m., Detective Blaine Smith and Officer David Cox arrived at the
scene. They were assigned to DUI’s and Officer Payne had phoned Detective Smith to
ask for assistance. Detective Smith spoke with Harb, trying to assess his condition. After
doing his assessment, Detective Smith told the other officers, “He’s got some medical
issues going on, and we need to get him in an ambulance. He needs to go to the
hospital.”
       Around the time Detective Smith arrived, Meghan Coffey, a registered nurse from
Kern Medical Center who had worked with Harb that day, drove by the accident scene.
She saw a man sitting on the curb with his hands handcuffed behind his back, his right
shoe off, and vomit on his face and down his shirt. She recognized the man as Harb and
stopped her car. She told a police officer that Harb had been working at the hospital all
day and that she thought something was wrong. She spoke with Harb and asked the
police how he had gotten a gash on his forehead. A female officer told Nurse Coffey that
it had happened when they were putting him in handcuffs and he was trying to fight
them. Nurse Coffey told the officers that something was wrong with Harb, he needed to
get to a hospital and they should call an ambulance. At Nurse Coffey’s request, the
police removed Harb’s handcuffs.

                                             6
       At about 7:30 p.m., a registered nurse at the neonatal intensive care unit phoned
Harb’s cell phone to report on the blood oxygen level of a baby that was not doing well.
A male police officer answered Harb’s cell phone, informed the nurse that Harb was
there and acting strangely, and asked her if Harb could be drunk. The nurse told the
officer that Harb was on call and was not drunk. The nurse also told the officer that she
believed Harb had had a stroke a few years ago. The officer relayed that information to
the other officers.
       At 7:31 p.m., the police called for a second ambulance, which arrived in seven
minutes.
       Detective Smith, who had been told an ambulance had come and gone, was upset
when the second ambulance arrived because he thought they were the same ambulance
crew. He yelled at them, “Hey, you guys should have never left.” Someone told
Detective Smith it was not the same crew.
       Nurse Coffey testified that when the driver of the second ambulance asked why
the first unit left, Officer Payne said, “It’s on me. I sent them away. He’s going with us.”
Officer Payne testified that she said, “That’s on me.” But, she denied saying that she had
sent them away.
       Officer Galland testified that by the time the second ambulance arrived, Harb’s
condition looked worse because he was paler, the right side of his face was starting to
droop, and he was drooling a little. Harb had walked normally when he was walked back
from his car to the curb, but he was shuffling and dragging his right side when he was
taken to the second ambulance.
       At 7:44 p.m., the second ambulance left the scene to take Harb to the hospital.
       At 7:58 p.m., the ambulance arrived at Kern Medical Center and Harb was taken
to a trauma room. Harb was first seen by a physician at 8:04 p.m. The emergency room
doctor testified that Harb looked like somebody who was having an acute stroke. At 8:29

                                             7
p.m., Harb was checked in for his first CT scan, which showed an extensive bleed—that
is, a large amount of blood in the brain. After the CT scan, Harb’s condition deteriorated.
He stopped speaking English and tried to climb out of the gurney. The CT scan showed
bruising around the blood pooling in his brain. The bruising caused swelling, which
shifted the midline of the brain and compressed the brain. At around 9:00 p.m., Harb was
given Labetalol, a hypertension medication, intravenously. Further medication was given
and a second CT scan was taken around 10:30 p.m.
       At 10:50 p.m., almost four hours after the 911 call, Harb was taken into an
operating room for surgery.
       Harb survived the surgery and was moved to a convalescent facility. A certified
nurse assistant now provides care to Harb on a daily basis. The care includes bathing
him, dressing him, brushing his teeth, combing his hair, and pushing him around in a
wheelchair. Harb is able to feed himself, but if any food needs to be cut the certified
nurse assistant cuts it for him. He wears diapers and needs help to get from the
wheelchair to the commode.
                                    PROCEEDINGS
       In December 2008, plaintiffs filed a complaint against City, Hall Ambulance,
Officer Payne and Paramedic Dumont (collectively, defendants). In their fourth amended
complaint, the operative pleading, plaintiffs alleged that City, Officer Payne, Hall
Ambulance and Paramedic Dumont did not transport Harb to the hospital quickly enough
after his stroke.
       The jury trial began in November 2012. The emergency room doctor who treated
Harb testified that he had discussed with plaintiffs’ attorney the competing theories as to
whether the delay in getting Harb to the hospital affected the amount of brain damage
Harb suffered. The doctor stated his opinion was that the delay was adverse, but his
opinion would not be as valuable as the neurosurgeon’s.

                                             8
       A neurosurgeon retained by plaintiffs, Cary David Alberstone, M.D., testified that
if Harb had received blood pressure medication earlier, it would have stopped the
bleeding earlier, reduced the size of the hematoma,3 and reduced the ultimate
neurological deficits. He stated that if Harb had received the medication given at 9:00
p.m. before he deteriorated at 8:45 p.m., the degree of damage caused by the bleed would
have been lessened.
       In contrast, the neurosurgeon retained by City, Thomas Hoyt, M.D., testified that
the bleeding inside Harb’s brain stopped after two heartbeats because the blood vessel
clotted off and the back pressure from the blood clot slowed and stopped the bleeding.
He stated the blood clot addressed during Harb’s surgery occurred before defendants
were involved with Harb. Dr. Hoyt also testified that there were only two possible
outcomes for Harb at the time the hemorrhage occurred—death or the condition Harb
was in at the time of trial.
       On December 11, 2012, the jury was instructed on the law by the trial court and
heard closing arguments from counsel. Counsel representing City asserted Harb was
contributorily negligent based on the evidence about his failure to take blood pressure
medication. Counsel for City argued “Harb gambled with his own life.… He owns all of
the responsibility here as to what happened.” He also argued the “outcome was
determined at the time [Harb] suffered that stroke that night.”
       During their deliberations, the jury asked to hear the testimony of Paramedic
Dumont again and, as a result, the court reporter read that testimony to the jury. At
around 3:00 p.m. on December 12, 2012, the jury reached a verdict.




3     A collection of blood outside the blood vessels (i.e., the pool of blood inside
Harb’s brain).


                                             9
       The first question in the special verdict form asked whether Officer Payne and
City were negligent. The jury answered, “No.” The third question in the special verdict
form asked whether Paramedic Dumont and Hall Ambulance were grossly negligent.
The jury answered, “No.” In accordance with the instructions in the special verdict form,
the jury did not answer any other questions.
       On December 13, 2012, a judgment on special verdict was filed. It stated
plaintiffs would take nothing by way of their complaint against defendants.
       Plaintiffs filed a motion for new trial that asserted the trial court erred in allowing
defendants to pursue the theory that Harb’s own negligence was a cause of the stroke and
thus contributed to his injuries. Plaintiffs argued that any prestroke negligence by Harb
was irrelevant because plaintiffs were seeking damages only for the additional injuries
Harb suffered as a result of the delay in treatment, not for any injuries suffered in the
stroke itself. The motion also asserted the trial court erred in giving a jury instruction on
police immunity that tracked the text of Government Code section 820.4.4
       Plaintiffs supported their motion for new trial by submitting declarations from four
jurors. The trial court struck one declaration in its entirety and the paragraphs in the
other three declarations that described what “the jury collectively believed .…” The
court did not strike the paragraph in each of the three declarations that stated (1) the
jurors discussed the jury instruction stating a police officer is not liable for his act or
omission, exercising due care, in the execution or enforcement of any law and (2) “I
verbally agreed that this instruction did not permit us to find negligence on the part of
defendants [Officer] Payne and the City of Bakersfield.”




4    The text of the challenged jury instructions is set forth in part III.A. (police
immunity) and part IV.A. (contributory negligence), post.


                                               10
       In February 2013, the trial court issued a minute order denying plaintiffs’ motion
for new trial.
       Plaintiffs appealed from the judgment.
                                         DISCUSSION
I.     ADEQUACY OF APPELLATE RECORD
       A.        Contentions of the Parties
       Hall Ambulance contends this court should not address plaintiffs’ claims of
instructional error because plaintiffs failed to provide a complete set of jury instructions
in their appellants’ appendix.
       Similarly, City argues plaintiffs’ failure to include and present all of the jury
instructions to this court is fatal to their appeal.
       Plaintiffs contend the defendants have misrepresented the contents of the appellate
record, which contains a reporter’s transcript that includes (1) all of the instructions read
to the jury and (2) plaintiffs’ objections to the jury instructions given.
       B.        Scope of Reporter’s Transcript
       We have reviewed volume 21 of the reporter’s transcript and it includes all of the
jury instructions that the trial court read to the jury before counsel’s closing arguments.
The reporter’s transcript also includes the court’s instructions to the jury after counsel’s
closing arguments.
       Therefore, defendants’ claim that the record is incomplete because it does not
include all the instructions given to the jury is inaccurate. Furthermore, the claim that the
record is incomplete because it does not contain the instructions requested but not given
is unpersuasive because there has been no showing that the rejected instructions have any
bearing on the issues raised by plaintiffs. Consequently, we will consider the merits of
plaintiffs’ claims of instructional error. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 574
[appellant must provide an adequate record of lower court’s proceedings].)

                                                11
II.    APPELLATE REVIEW OF JURY INSTRUCTIONS
       A.     Independent Review
       Appellate courts apply a de novo standard of review when determining whether
the trial court’s jury instructions were proper because the propriety of a jury instruction is
a question of law. (Ford v. Polaris Industries, Inc. (2006) 139 Cal.App.4th 755, 766; 3
Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2014) ¶
14:254, p. 14-59.)
       B.     Prejudice Resulting from Instructional Error
       In addition to showing an instructional error occurred, an appellant must establish
the error was prejudicial. (Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th
601, 613.)
       Article VI, section 13 of the California Constitution provides: “No judgment shall
be set aside, or a new trial granted, in any cause, on the ground of misdirection of the jury
… unless, after an examination of the entire cause, including the evidence, the court shall
be of the opinion that the error complained of has resulted in a miscarriage of justice.”5
       The “‘miscarriage of justice’” phrase has been interpreted to prohibit a reversal
unless there is “a reasonable probability that in the absence of the error, a result more
favorable to the appealing party would have been reached.” (Soule v. General Motors
Corp. (1994) 8 Cal.4th 548, 574 (Soule).) Thus, when challenging the jury instructions
given in a civil case, the appellant must show it was “reasonably probable the jury would




5      Similarly, instructional error is addressed in Code of Civil Procedure section 475,
which states: “No judgment … shall be reversed … by reason of any … instruction, …
unless it shall appear from the record that such … instruction … was prejudicial, and also
that by reason of such … instruction, … the said party complaining or appealing
sustained and suffered substantial injury, and that a different result would have been
probable if such … instruction … had not occurred or existed.”


                                             12
have returned a more favorable verdict.” (Holmes v. Petrovich Development Co., LLC
(2011) 191 Cal.App.4th 1047, 1073.)
       In the context of assessing prejudice from instructional error, the constitutional
requirement for “an examination of the entire cause” (Cal. Const., art. VI, § 13) has been
interpreted to mean courts should consider, insofar as relevant, (1) the degree of conflict
in the evidence on the critical issues; (2) whether the winning side’s argument to the jury
may have contributed to the instruction’s misleading effect; (3) whether the jury
requested rereading of the erroneous instruction or related evidence; (4) the closeness of
the jury’s verdict; and (5) the effect of other instructions in remedying the error. (Soule,
supra, 8 Cal.4th at pp. 570-571.) In other words, the assessment “requires evaluation of
several factors, including the evidence, counsel’s arguments, the effect of other
instructions, and any indication by the jury itself that it was misled.” (Id. at p. 574.)
III.   POLICE IMMUNITY INSTRUCTION
       A.     Contents of the Instruction
       The trial court read special jury instruction No. 5 to the jury after an instruction
about the authority of public safety officials to manage the scene of an emergency. The
special instruction stated: “A police officer is not liable for his act or omission,
exercising due care, in the execution or enforcement of any law.”
       The instruction was based on Government Code section 820.4, which provides:
“A public employee is not liable for his act or omission, exercising due care, in the
execution or enforcement of any law. Nothing in this section exonerates a public
employee from liability for false arrest or false imprisonment.”
       Counsel for plaintiffs objected to the instruction on the ground the instruction did
not apply to a negligence cause of action, which was the theory of liability pursued
against City and Officer Payne.



                                              13
       B.     Theory of Instructional Error
              1.     Contentions

       Plaintiffs contend there was no reason for the jury to be given an instruction
regarding Government Code section 820.4 because if the jury found Officer Payne was
not negligent, the statute would be irrelevant because she would have no liability.
Conversely, if the jury found Officer Payne was negligent, then the statute would be
irrelevant because she could not have qualified for its protections. Plaintiffs also argue:

              “The instruction’s awkward wording compounded the problem.
       Even when a statute applies to the facts of a case, its literal text should only
       be used in an instruction if its meaning would be obvious to laypeople.
       (People v. Thomas (1945) 25 Cal.2d 880, 895-896.) That can hardly be
       said of [Government Code s]ection 820.4.

               “The statute is phrased in the negative; i.e., it describes when
       officers may not be held liable. This means that the instruction directed a
       defense verdict—unless the jurors independently recognized that it
       described an immunity with no effect in negligence lawsuits. That is not a
       reasonable demand to make of laypeople. ‘The jury can hardly be aware
       that [t]his instruction, formally declared by the court as the law applicable
       to the case, is irrelevant.’ (People v. Albertson (1944) 23 Cal.2d 550, 588
       (Traynor, J., concurring).)”
       In effect, plaintiffs contend the police immunity instruction was both superfluous
and ambiguous.
              2.     Rules of Law Defining Errors in Instructions

       There are many types of instructional errors recognized by California courts.
Instructions that misstate the substantive law, the rules of evidence, or the duties of the
judge and jury are a major source of reversal in instructional error cases. (7 Witkin, Cal.
Procedure (5th ed. 2008) Trial, § 305 [errors in content].)
       In addition, “it is improper to give an instruction which lacks support in the
evidence, even if the instruction correctly states the law. [Citation.]” (LeMons v. Regents
of University of California (1978) 21 Cal.3d 869, 875.) In other words, “[a]n instruction

                                              14
correct in the abstract, may not be given where it is not supported by the evidence or is
likely to mislead the jury. [Citation.]” (Joyce v. Simi Valley Unified School Dist. (2003)
110 Cal.App.4th 292, 303.)
       The concern about misleading the jury also applies to ambiguously worded jury
instructions. When a jury instruction is challenged on the ground it is ambiguous, the test
is whether there is a reasonable likelihood that the jury misunderstood and misapplied the
instruction. (Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1500.)
                3.   Correct, but Redundant

       Initially, there is no question that, in the abstract, the police immunity instruction
correctly stated the law because its wording tracked the language in the first sentence of
Government Code section 820.4.
       Furthermore, there is no doubt the instruction was redundant to the jury instruction
stating plaintiffs were required to prove Officer Payne was negligent. Government Code
section 820.4 refers to a public employee “exercising due care.” The California Supreme
Court interpreted the statute as declaring “immunity for public employees for their non-
negligent acts ‘in the execution or enforcement of any law’ .…” (Sullivan v. County of
Los Angeles (1974) 12 Cal.3d 710, 717, italics added.) In other words, “exercising due
care” for purposes of Government Code section 820.4 refers to acts and omissions by a
public employee that are not negligent.
       Therefore, the police immunity instruction was redundant to the negligence
instructions.
       C.       Ambiguous and Misleading
                1.   Contentions

       The main point of contention between the parties is whether the police immunity
instruction was ambiguous in a way that was reasonably likely to cause the jury to
misunderstand and misapply the instruction.

                                              15
       City argues the term “due care” in the immunity instruction and the term
“reasonable care” in the instruction defining negligence are interchangeable and did not,
in any way, create an ambiguity or set forth a different standard. City refers to cases in
which the terms “due care” and “reasonable care” were used to mean the same thing and
asserts the juror declarations do not show the jurors were confused by the terms or felt
that “due care” was a lesser standard.
       Plaintiffs argue that it is questionable whether the jurors, as persons without legal
training, would understand the awkwardly phrased special instruction meant a police
officer was required to exercise due care to obtain the immunity. Even if the jurors
discerned that meaning, plaintiffs argue the instruction did not define “due care” and,
therefore, required the jurors to infer that “due care” was the equivalent of “reasonable
care.” Plaintiffs assert that the jurors were unlikely to infer the standards were the same
and, thus, redundant. Instead, plaintiffs assert the jurors were more likely to infer that
Officer Payne was protected by a different standard when she was enforcing the law.
               2.    Analysis of Ambiguity

       We conclude the police immunity instruction was ambiguous because it did not
clearly indicate when the immunity applied and when it did not apply.
       First, the jury instructions did not define the phrase “exercising due care” and, as a
result, required the jury to determine for itself what “due care” meant and whether the
police immunity instruction was redundant to the negligence instructions.
       Second, the cases cited by City that treat “due care” and the equivalent of
“reasonable care” do not hold that laypersons who act as jurors recognize the two
standards of care are the same. The fact that courts and lawyers regard the terms as
interchangeable does not establish that jurors would interpret the terms in the same
manner, particularly when that interpretation would render one of the instructions
superfluous.

                                             16
       Therefore, we conclude that the police immunity instruction, viewed as a whole
with the other instructions, was ambiguous—that is, susceptible to more than one
reasonable interpretation. (See Minkler v. Safeco Ins. Co. of America (2010) 49 Cal.4th
315, 321 [terms are ambiguous if they are susceptible to more than one reasonable
interpretation].)
                 3.   Likelihood the Instruction Was Misunderstood

       Not every ambiguity in a civil jury instruction constitutes reversible error. Here,
reversible error occurred only if the ambiguity created a reasonable likelihood the jury
misunderstood and misapplied the police immunity instruction. (Collins v. Navistar, Inc.,
supra, 214 Cal.App.4th at p. 1500.) We conclude it did.
       Initially, we note that the jury would have interpreted the ambiguity correctly only
if it realized the police immunity instruction was redundant to the negligence instructions.
This seems unlikely because the jury was instructed that “[a]ll the instructions are
important because together they state the law that you will use in this case. You must
consider all the instructions together.”6 (Italics added.) (See People v. Albertson, supra,
23 Cal.2d at p. 588 (conc. opn. of Traynor, J.) [“jury can hardly be aware that this
instruction, formally declared by the court as the law applicable to the case, is
irrelevant”].)
       We recognize the jury was told that (1) some instructions might not apply due to
the findings of fact the jury made and (2) “[i]f I repeat any ideas or rules of law during
my instructions, that does not mean those ideas or rules are more important than the
others.” Being informed of the possibility of repetitious instructions would not have
aided the jury in determining whether a variation in language restated an earlier legal


6      The jury also was told that it was the court’s “duty to instruct you on the law that
applies to this case” and it “must follow the law exactly as I give it to you.”


                                             17
standard or set forth a different rule of law. Thus, we conclude, in total, the other
instructions were more likely to have caused the jury to believe the ambiguity in the
police immunity instruction set forth a standard different from reasonable care.
       Another factor relevant to evaluating the likelihood of misunderstanding is the
effect of closing argument on the ambiguity. (See Soule, supra, 8 Cal.4th at p. 570
[respondent’s argument to jury might contribute to misleading effect of instruction].)
Here, City’s defense counsel emphasized the police immunity instruction by quoting it
during closing argument to the jury. He did not explain the meaning of “due care” or
inform the jury that negligent police officers were not protected by the immunity.
Instead, shortly after quoting the instruction, defense counsel stated:

       “I am confronted by this question: If Claudia Payne was out to harm Dr.
       Harb, why would she call for the ambulance in the first place and create
       some record that an ambulance was there?”
       This argument and the phrase “was out to harm Dr. Harb” suggested to the jury
that Officer Payne was immune from liability so long as she did not act with the intent to
harm Harb. Thus, counsel’s argument implied that Officer Payne exercised “due care” so
long as she did not intentionally attempt to injure Harb. Therefore, we conclude the
closing argument of City’s defense counsel is a factor that increased, rather than reduced,
the probability the jury misunderstood the ambiguity in the police immunity instruction
and the scope of the immunity provided by Government Code section 820.4.
       Other factors that bear on the probability the jury misunderstood and misapplied
an ambiguous instruction are whether the jury requested rereading of the erroneous
instruction or related evidence. (See Soule, supra, 8 Cal.4th at p. 570.) Here, the jury did
not need to ask to have an instruction reread because the jury was given a copy of the
instructions when it went to the jury room to deliberate. The jury did request to hear the
testimony of Paramedic Dumont again. His testimony was relevant to the issues of


                                             18
Officer Payne’s negligence and his own gross negligence.7 Many different inferences
can be drawn from the jury’s request to hear the testimony of Dumont again. Ultimately,
we do not believe the jury’s request indicates, one way or the other, whether the jury
misunderstood and misapplied the ambiguous police immunity instruction.
       Another factor relevant to the probability the jury misapplied an ambiguous
instruction is the closeness of the evidence on the critical issue, which in this case is
Officer Payne’s negligence.8 Here, City’s expert witness on police practices testified that
if the deposition testimony of Paramedic Dumont was true—that is, he told Officer Payne
that she needed to transport Harb because he was having a stroke—then the actions of
Officer Payne would not have been up to the standards of a well-trained police officer.
Also, plaintiffs’ expert testified that Officer Payne’s actions were below standards. In
short, the conflicting versions about what happened before the first ambulance left the
scene presented a hotly contested issue bearing directly on the question of Officer
Payne’s negligence. In short, the evidence was not so one-sided that there was little
chance of the ambiguous instruction being misapplied.
       Other evidence relevant to whether the jury misapplied the ambiguous instruction
is set forth in the portions of the juror declarations that were not stricken by the trial court
when ruling on the motion for new trial.


7      Health and Safety Code section 1799.106 provides that in order to encourage the
provision of emergency medical services, a firefighter, police officer, nurse, paramedic or
EMT “who renders emergency medical services at the scene of an emergency ... shall
only be liable in civil damages for acts or omissions performed in a grossly negligent
manner or acts or omissions not performed in good faith.” This provision does not apply
to Officer Payne because she was not rendering medical services.
8      Our analysis of the impact of the ambiguity in the instruction would be much
different if the decisive issue had been causation—that is, if the jury had found Officer
Payne was negligent, but then found her negligence was not a substantial factor in
causing harm to Harb.


                                              19
       “Evidence of jurors’ internal thought processes is inadmissible to impeach a
verdict. [Citations.] Only evidence as to objectively ascertainable statements, conduct,
conditions, or events is admissible to impeach a verdict. [Citations.] Juror declarations
are admissible to the extent that they describe overt acts constituting jury misconduct, but
they are inadmissible to the extent that they describe the effect of any event on a juror’s
subjective reasoning process. [Citation.] Accordingly, juror declarations are
inadmissible to the extent that they purport to describe the jurors’ understanding of the
instructions or how they arrived at their verdict. [Citations.]” (Bell v. Bayerische
Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1124-1125, fn.
omitted.) The foregoing principles are derived from Evidence Code section 1150,9 which
became effective on January 1, 1967 (Stats. 1965, ch. 299, § 2), and People v. Hutchinson
(1969) 71 Cal.2d 342, the first California Supreme Court decision to discuss the new
statute.
       Here, the parties do not challenge the trial court’s ruling regarding the contents of
the juror’s declarations. Furthermore, our review of that ruling leads us to conclude the
trial court correctly applied the foregoing rules of law when it struck portions of the juror
declarations and did not strike the paragraph in each of the three declarations that stated
(1) the jurors discussed the police immunity instruction and (2) “I verbally agreed that
this instruction did not permit us to find negligence on the part of defendants [Officer]
Payne and the City of Bakersfield.”


9      Subdivision (a) of Evidence Code section 1150 provides: “Upon an inquiry as to
the validity of a verdict, any otherwise admissible evidence may be received as to
statements made, or conduct, conditions, or events occurring, either within or without the
jury room, of such a character as is likely to have influenced the verdict improperly. No
evidence is admissible to show the effect of such statement, conduct, condition, or event
upon a juror either in influencing him to assent to or dissent from the verdict or
concerning the mental processes by which it was determined.”


                                             20
       These declarations by three jurors indicate that the police immunity instruction
was discussed in a way that did not treat the instruction as redundant to the negligence
instructions. Thus, the declarations support the position that the jurors did not understand
the police immunity instruction and misapplied it.
       Based on our review of these relevant factors, we conclude there was a reasonable
likelihood that the jury misunderstood and misapplied the ambiguous police immunity
instruction. Therefore, plaintiffs have demonstrated the error was prejudicial and a new
trial is warranted as to City and Officer Payne.
IV.    COMPARATIVE NEGLIGENCE INSTRUCTION
       A.     Contents of the Instruction
       The trial court gave the following jury instruction (using CACI No. 405) regarding
Harb’s comparative negligence:

       “The defendants claims that plaintiff Mohamad Harb’s own negligence
       contributed to his harm. To succeed on this claim, the defendants must
       prove both of the following: [¶] 1. That plaintiff Mohamad Harb was
       negligent; and [¶] 2. That plaintiff’s Mohamad Harb’s negligence was a
       substantial factor in causing his harm.

       “If the defendants prove the above, Mohamad Harb’s damages are reduced
       by your determination of the percentage of plaintiff Mohamad Harb’s
       responsibility. I will calculate the actual reduction.”
       Counsel for plaintiffs objected to the instruction on the ground that defendants
should not be allowed to argue that Harb’s stroke was due to his negligence.
       B.     Claim of Instructional Error
              1.     Contentions

       Plaintiffs contend they did not sue defendants for causing Harb’s stroke, but only
for the additional harm defendants caused by delaying his treatment. Based on this
approach to recoverable damages, plaintiffs contend it was error for the trial court to
instruct on comparative negligence and allow defendants to refer to Harb’s negligence

                                             21
before the stroke and automobile accident. In plaintiffs’ view, California law forbids first
responders from blaming the victims for placing themselves in peril.
       Plaintiffs, in effect, ask this court to adopt the following rule of law: First
responders to the scene of an accident (such as police officers, paramedics and EMT’s)
cannot reduce their liability by asserting it was the accident victim’s own fault for
requiring care in the first place, provided that the victim’s claim is limited to injuries
caused by the first responders’ tortious acts or omissions. In other words, plaintiffs
contend any negligence by a victim before the police or paramedics arrive on the scene is
irrelevant because tortfeasors take the victim as they find him.
       In response, City relies on general principles of comparative fault and contends the
evidence of Harb’s failure to control his blood pressure was properly admitted and the
contributory negligence instruction was proper. City argues Harb’s outcome was
predetermined before the accident when the severe hemorrhage occurred and “certainly
prior to any of the defendants having any contact with Dr. Harb.”10
              2.      Current Status of California Law

       First, the California Supreme Court has not addressed whether an accident
victim’s preaccident negligence qualifies as comparative negligence that first responders
can assert to reduce their liability for damages caused by their tortious acts or omissions.
       Second, the parties have not cited, nor have we located, any decision by the
California Court of Appeal that decides or even mentions this issue.
       Third, the first responders’ situation could be viewed as analogous to the position
of health care professionals who treat patients for injuries or conditions that were caused
by the patient’s negligence. However, the parties have not cited, and we have not


10    This argument goes to causation, not to the apportionment of responsibility
between two or more persons whose conduct was a substantial factor in causing the harm.


                                              22
located, any decision by a California appellate court that addresses whether pretreatment
negligence by a patient can be asserted as comparative negligence by a health care
professional in a medical malpractice action.11
       Fourth, California is among those jurisdictions that have adopted the familiar
principle of tort law that a “tortfeasor takes the plaintiff as he finds him.” (Bowen v.
Board of Retirement (1986) 42 Cal.3d 572, 580; 3 Croskey, Cal. Practice Guide:
Insurance Litigation (The Rutter Group 2013) ¶ 13:90, pp. 13-24.2 to 13-25.) This basic
principle will serve as part of the foundation for the rule of law adopted in this opinion.
(See pt. IV.D, post.)
       C.     Overview of Other Jurisdictions
       Many other jurisdictions have addressed whether health care professionals sued
for medical malpractice can assert a patient’s pretreatment negligence is comparative or
contributory negligence. (See Comment, Defense of Patient’s Contribution to Fault in
Medical Malpractice Actions (1992) 25 Creighton L.Rev. 665; Annot., Contributory
Negligence, Comparative Negligence, or Assumption of Risk, Other than Failing to
Reveal Medical History or Follow Instructions, as Defense in Action Against Physician
or Surgeon for Medical Malpractice (2003) 108 A.L.R.5th 385.) The courts generally


11     California courts have addressed contributory negligence that is contemporaneous
with the medical treatment. (Puffinbarger v. Day (1962) 207 Cal.App.2d 540 [in
wrongful death action, a jury instruction on parent’s contributory negligence was
appropriate where mother did not follow doctor’s instructions regarding care of
daughter]; Dodds v. Stellar (1946) 77 Cal.App.2d 411 [whether plaintiff with finger
burned by X-rays used due diligence in deciding not to undergo amputation of finger
when first suggested by doctor was a question for the jury; finding for plaintiff upheld].)
In addition, in Barton v. Owen (1977) 71 Cal.App.3d 484, the court concluded instructing
the jury on the patient’s contributory negligence was error because there was no evidence
to support the claim that the patient’s allegedly negligent activities were a proximate
cause of his brain abscess. The contributory negligence alleged in these cases involved
matters arising after the medical treatment had begun.


                                             23
agree that a patient’s conduct prior to seeking medical attention should not be considered
in assessing damages. (Comment, supra, 25 Creighton L.Rev. at p. 687.) In contrast,
most courts have held that the concept of contributory negligence can be applied to a
patient’s conduct that is concurrent or contemporaneous with the physician’s negligence.
(Ibid.; see fn. 11, ante.)
       The cases discussed below are from jurisdictions that are similar to California in
that they apply a comparative fault system (either pure or modified) rather than treating
contributory negligence as a complete bar to recovery.
               1.      Oregon—2010

       In Son v. Ashland Community Healthcare Services (2010) 239 Or.App. 495 [244
P.3d 835] (Son), the mother of a 16-year-old girl filed a wrongful death action against
two physicians who treated her daughter for a drug overdose. The physicians asserted
various affirmative defenses, including that the daughter was at fault for (1) consuming a
variety of substances that led to her hospitalization and (2) not providing accurate
information to defendants about what substances she consumed, the quantity taken and
the time she consumed each. (Id. at p. 838.) The trial court struck the defense of the
daughter’s comparative fault for taking the pills and allowed the defense about inaccurate
information to go to the jury. (Id. at pp. 838-839.) The jury determined each doctor was
30 percent at fault, the daughter was 25 percent at fault, and her father was 15 percent at
fault. (Id. at p. 839.) After the trial court entered judgment, each side appealed. The
mother claimed the jury should not have been allowed to consider the comparative fault
of the daughter and her father. The doctors claimed the trial court improperly struck their
defense that the daughter was comparatively at fault for consuming the substances that
led to her medical condition and ultimately her death. (Id. at p. 839.)
       As to the question whether the daughter’s consumption of substances could be
considered by the jury in its allocation of fault, the court concluded that the consumption

                                             24
of drugs was not the type of conduct that could support a comparative fault defense.
(Son, supra, 244 P.3d at p. 842.) The court explained its conclusion by stating, “the focus
in a medical malpractice case is on the injury caused by the negligent treatment, not the
original injury that created the need for treatment.” (Id. at p. 843.) The court stated its
“conclusion is in line with the majority of other jurisdictions that have dealt with this
issue.” (Ibid.) Under the majority rule, contributory or comparative negligence is not
available as a defense when the patient’s conduct provides the occasion for medical
attention. (Id. at pp. 843-844.) Thus, the court distinguished between a patient’s
pretreatment conduct and conduct that occurs concurrently with the provision of medical
services.12 (Id. at p. 844.) Applying this distinction, the court concluded the trial court
correctly struck the comparative negligence defense related to the daughter’s
consumption of the substances that led to her hospitalization.
              2.      Tennessee—2004

       In Mercer v. Vanderbilt University, Inc. (Tenn. 2004) 134 S.W.3d 121, the patient
had been seriously injured in a single-car accident. His blood-alcohol level at the time of
the accident was approximately 0.20 percent. (Id. at p. 125.) The patient’s conservator
brought a medical malpractice action against the hospital, a nurse and a respiratory
therapist, alleging their negligent treatment of the patient resulted in his cardiac arrest,
which caused severe and permanent brain damage. (Id. at p. 126.) The plaintiff alleged
the therapist attached the patient’s ventilator to a half-full oxygen tank that ran out during
his CT scans and the therapist and nurse failed to monitor his condition properly during
the procedure. (Ibid.) The jury apportioned the fault 70-30 between the hospital and the
patient and a judgment for approximately $5.2 million was entered in favor of the


12     An example of a patient’s negligence that occurs concurrently with medical
treatment is the patient’s failure to provide accurate information to health care providers.


                                              25
plaintiff. (Id. at p. 127.) The court of appeals reversed and remanded for a new trial.
The Tennessee Supreme Court reversed and reinstated the jury’s verdict in the amount of
$7,366,000, with no reduction for the jury’s assessment of fault to the patient. (Id. at p.
135.)
        The court noted that “most jurisdictions have held that a patient’s negligence that
provides only the occasion for medical treatment may not be compared to that of a
negligent physician. [Citations.]” (Mercer v. Vanderbilt University, Inc., supra, 134
S.W.3d at p. 128.) The court determined these cases were convincing and agreed with
the position that patients who may have negligently injured themselves are nevertheless
entitled to subsequent nonnegligent medical treatment and to an undiminished recovery if
the subsequent medical treatment is negligent. (Id. at p. 130.) Consequently, the court
overruled its decision in Gray v. Ford (Tenn. 1996) 914 S.W.2d 464 and stated:

        “In the present case, [the patient’s] negligence merely provided the
        occasion for the medical care, attention, and treatment that gave rise to this
        medical malpractice action. We therefore hold that the principles of
        comparative fault do not apply so as to allow fault to be assessed to [the
        patient]. We recognize that [the patient’s] medical treatment was
        complicated by his alcohol withdrawal and that evidence concerning his
        alcohol consumption was clearly relevant to his treatment and to
        Vanderbilt’s theory of causation. We hold, however, that [the patient’s]
        antecedent negligence should not have been considered by the jury in
        assessing fault.” (Mercer v. Vanderbilt University, Inc., supra, 134 S.W.3d
        at p. 130.)
               3.     West Virginia—2001

        In Rowe v. Sisters of Pallottine Missionary Society (2001) 211 W.Va. 16 [560
S.E.2d 491] (Rowe), the plaintiff crashed his motorcycle while participating in a
motocross event and injured his left leg. An emergency room physician treated and
discharged the plaintiff, but complications involving a lacerated artery developed. (Id. at
pp. 494-495.) Subsequent extensive surgery saved the leg, but the plaintiff was
hospitalized for 35 days and his use of the leg was significantly impaired. (Id. at p. 495.)
                                              26
        The plaintiff sued the doctor and hospital for negligence. (Rowe, supra, 560
S.E.2d at p. 495.) The doctor settled and the case proceeded to trial against the hospital
alone. (Ibid.) The jury returned a verdict against the hospital for $880,186. (Id. at p.
496.)
        On appeal, the hospital argued the jury should have been instructed on principles
of comparative negligence, including the negligence of the plaintiff in crashing his
motorcycle. (Rowe, supra, 560 S.E.2d at p. 496.) The West Virginia Supreme Court
stated that a “majority of courts hold that a health care provider cannot compare the
plaintiff’s negligence conduct that triggered the need for treatment with the health care
provider’s later negligence in treating the plaintiff.” (Id. at p. 497.) The court stated the
reason for this rule was simple and obvious—patients who may have negligently injured
themselves are entitled to subsequent nonnegligent medical care and to an undiminished
recovery if reasonable medical treatment is not afforded. (Ibid.) The court adopted the
majority approach and concluded the trial court did not err in refusing to give the
comparative negligence instruction requested by the hospital. (Ibid.)
              4.     Montana—2000

        In Harding v. Deiss (2000) 300 Mont. 312 [3 P.3d 1286] (Harding), a mother sued
two physicians who treated her daughter before she died. The trial court instructed the
jury on contributory negligence and allowed the physicians to argue to the jury that
decedent’s conduct before she was taken to the emergency room caused her death. (Id. at
p. 1287.) The Montana Supreme Court reversed the judgment in favor of the physicians,
concluding that the defense of contributory negligence was improper under the facts
presented. (Id. at p. 1291.)
        In Harding, the decedent went horseback riding despite the fact she had asthma,
was allergic to horses and had a long history of breathing difficulties. (Harding, supra, 3
P.3d at. p. 1287.) During the ride, she began to have trouble breathing and eventually

                                              27
collapsed. (Ibid.) She was taken by ambulance to a hospital’s emergency room where
she was treated by one of the defendants. (Ibid.) The next day, she was transferred to a
different hospital and was treated by the other defendant. (Ibid.)
       The court began analyzing whether it was appropriate to instruct the jury on
contributory negligence by stating it was necessary to clarify the sequence of events in
relation to the interwoven doctrines of contributory or comparative negligence, proximate
cause, and avoidable consequences. (Harding, supra, 3 P.3d at p. 1288.) To accomplish
this clarification, the court identified three temporal settings: (1) the pretreatment period,
(2) the period during which the alleged malpractice occurred, and (3) the period after the
alleged malpractice. (Id. at p. 1289; see Stein, Toward a Theory of Medical Malpractice
(2012) 97 Iowa L.Rev. 1201, 1223-1224 [practitioner’s ability to invoke comparative
negligence defense is limited by the “timeline rule” which identifies three periods].)
Next, the court discussed cases concluding the pretreatment health habits of a patient or
other negligent acts that precede the physician’s medical treatment cannot be considered
as evidence of fault. (Harding, supra, at. p. 1289.) The Montana Supreme Court agreed
with those cases and concluded “that comparative negligence as a defense does not apply
where a patient’s pre-treatment behavior merely furnishes the need for care or treatment
which later becomes the subject of a malpractice claim. The patient’s conduct before
seeking medical treatment is merely a factor the physician should consider in treating the
patient.” (Id. at p. 1289.) The court regarded the patient’s pretreatment health habits as
being relevant only to the issue of proximate causation.13 (Id. at p. 1289.) Because the


13     To reiterate this point, a patient’s health habits, actions or omissions that occur
before treatment are not relevant to an analysis of fault, but these factors are relevant to
an analysis of the causation issue. (Stein, Toward a Theory of Medical Malpractice,
supra, 97 Iowa L.Rev. at p. 1224.) For example, “a plaintiff who negligently breaks his
arm and receives negligent treatment from a doctor that necessitates amputation of that
arm, can recover only damages attributable to the amputation, but cannot recover for any

                                              28
decedent’s horseback riding was pretreatment conduct, the court concluded instructing
the jury on comparative negligence was an abuse of discretion. (Ibid.)
              5.     Colorado—1993

       In Spence v. Aspen Skiing Co. (D.Colo. 1993) 820 F.Supp. 542, the plaintiff
became dizzy while skiing at a facility owned by the Aspen Skiing Company. (Id. at p.
543.) The member of the company’s ski patrol who answered the called was an EMT.
He gave the plaintiff an intravenous (IV) solution. Subsequently, the plaintiff
experienced redness, swelling and other symptoms in the arm receiving the IV. Surgery
was required and the plaintiff lost some use of her arm. The plaintiff sued the ski
company, alleging its employee, the EMT, was negligent in inserting the IV and tending
to it after insertion. The ski company asserted the plaintiff’s failure to properly treat her
hypoglycemia constituted negligence that contributed to any damage she sustained. The
jury completed a special verdict and found (1) the plaintiff sustained total damages of
$38,500 and (2) 95 percent of the damage was chargeable to the plaintiff and 5 percent
was chargeable to the ski company. (Id. at p. 542.)
       The plaintiff filed a motion for new trial, asserting the district court should not
have instructed the jury that it could consider the plaintiff’s comparative negligence.
(Spence v. Aspen Skiing Co., supra, 820 F.Supp. 542.) The district court concluded (1)
the language in Colorado’s comparative negligence statute was inconclusive on the issue,
(2) no Colorado state court decision addressed the issue, and (3) it was persuaded by
cases from other jurisdictions that held the patient’s negligence could not be asserted as a
defense where the patient’s conduct provided the occasion for medical attention, care or
treatment. (Id. at pp. 543-544.) The court stated: “It would be inconsistent with the


damages related to the broken arm.” (Son, supra, 244 P.3d at p. 843, italics added to
words denoting causation.)


                                              29
reasonable and normal expectations of both parties for the court to excuse or reduce the
provider’s liability simply because it was the patient’s own fault that she required care in
the first place.” (Id. at p. 544.) Consequently, the district court entered a judgment in
favor of the plaintiff for the full amount of the damages found by the jury. (Id. at p. 545.)
              6.     Florida—1975 & 1981
       In Matthews v. Williford (Fla.App. 1975) 318 So.2d 480 (Matthews), the plaintiff
filed a wrongful death action against a doctor, alleging medical negligence. (Id. at p.
481.) The trial court refused to instruct the jury on the patient’s comparative negligence
and the jury returned a verdict for the plaintiff. (Ibid.) The doctor appealed, contending
the trial court erred in refusing to give the comparative negligence instruction.
       The patient-decedent was admitted to the hospital for chest pains and shortness of
breath, but was not placed in the coronary care unit. (Matthews, supra, 318 So.2d at p.
482.) Early the next morning, he died from a massive heart attack. (Ibid.) Ten years
earlier, the patient had a heart attack and was advised that he should not smoke and
should not become overweight. (Ibid.) The plaintiff’s expert testified that if the patient
had been properly diagnosed and placed in a coronary care unit, the damage to his heart
would have been less and he would not have died. (Ibid.) Consistent with this testimony,
the plaintiff did not claim damages for the heart attack itself, but for the losses from the
period the patient would have lived if he had survived the heart attack. (Id. at p. 483.)
The court concluded that any conduct on the part of the patient contributing to the heart
attack was not a proximate cause of the damages sought, stating:

               “In short, conduct prior to an injury or death is not legally significant
       in an action for damages like this, unless it is a legal or proximate cause of
       the injury or death—as opposed to a cause of the remote conditions or
       occasion for the later negligence. So it is with conduct of a patient which
       may have contributed to his illness or medical condition, which furnishes
       the occasion for medical treatment. That conduct simply is not available as
       a defense to malpractice which causes a distinct subsequent injury—here,
       the ultimate injury, wrongful death.” (Id. at p. 483.)
                                              30
       The same approach was applied in Whitehead v. Linkous (Fla.App. 1981) 404
So.2d 377, a case where the patient apparently attempted suicide by consuming Valium,
Darvocet and large amounts of beer. He was brought by ambulance to a hospital’s
emergency room and died. The appellate court followed the Matthews decision, held the
trial court erred in giving a comparative negligence instruction, and reversed the jury’s
finding that the patient was 67 percent negligent. (Id. at p. 379.)14

14      Courts in other comparative fault jurisdictions have reached the same result.
Those cases include, but are not limited to, DeMoss v. Hamilton (Iowa 2002) 644 N.W.2d
302 (error to give comparative fault instruction where patient’s failure to lose weight and
stop smoking contributed to the heart attack for which medical treatment was sought);
Huffman v. Thomas (1999) 26 Kan.App.2d 685 [994 P.2d 1072] (medical provider’s
liability is not reduced simply because it was the patient’s own fault that he or she
required medical care); Harvey ex rel. Harvey v. Mid-Coast Hospital (D.Me. 1999) 36
F.Supp.2d 32 (comparative fault does not apply in a medical malpractice action where
plaintiff attempted suicide and hospital subsequently negligently administered treatment);
Fritts v. McKinne (Okla.App. 1996) 934 P.2d 371 (Fritts) (physician may not avoid
liability for negligent treatment by asserting the patient’s injuries were caused by the
patient’s own negligence in operating vehicle while drunk); Lambert v. Shearer (1992)
84 Ohio App.3d 266 [616 N.E.2d 965] (under Ohio law a patient’s negligence can
diminish recovery under principles of comparative negligence, but the patient’s
negligence must be contemporaneous with the physician’s malpractice; patient’s 30 years
of smoking was not relevant to claim doctor failed to diagnose and treat his lung cancer);
and Martin v. Reed (1991) 200 Ga.App. 775 [409 S.E.2d 874] (Martin) (trial court erred
in refusing plaintiff’s jury instruction that stated jury should not consider the cause of the
automobile wreck because it had no legal connection to whether the doctor’s subsequent
actions at the hospital constituted malpractice).
       Similarly, decisions from jurisdictions where the all-or-nothing rule of
contributory negligence was in effect have concluded that a patient’s pretreatment
negligence does not constitute contributory negligence. (Cavens v. Zaberdac (Ind. 2006)
849 N.E.2d 526 [in wrongful death action, trial court correctly refused emergency room
physician’s request to assert the defense of contributory negligence based on evidence of
the patients’ excessive use of asthma medication and her delay in seeking treatment at the
emergency room]; Jensen v. Archbishop Bergan Mercy Hospital (1990) 236 Neb. 1 [459
N.W.2d 178] [patient’s failure to heed doctor’s advice to lose weight may have caused
pulmonary embolism, but was irrelevant to claim that doctor later negligently treated the
condition]; Eiss v. Lillis (1987) 233 Va. 545 [357 S.E.2d 539] [proposition that treating

                                             31
              7.     Secondary Authorities

       The foregoing cases set forth the majority view that pretreatment negligence by
the patient does not warrant a jury instruction on contributory or comparative negligence.
This view is supported by comment m to section 7 of the Restatement Third of Torts:
Apportionment of Liability, which states: “[I]n a case involving negligent rendition of a
service, including medical services, a factfinder does not consider any plaintiff’s conduct
that created the condition the service was employed to remedy.”
       The majority view is expressed in a California practice guide that addresses
malpractice actions: “Negligence, in fact, may often explain why the patient, to begin
with, needed and sought out the physician’s assistance. The health care professional, in
this instance, takes the patient as he finds him. Other than in very rare cases, the only
legitimate application of the doctrine of contributory fault is when it takes place
concurrently with or after the delivery of the practitioner’s care and treatment.”
(McDonald, 1 Cal. Medical Malpractice Law & Practice (2014) § 10:13.)
       D.     Conclusion Regarding California Law
       Based on the reasoning set forth in the cases from other jurisdictions, the
secondary authorities, and California’s adoption of the basic principle of tort law that a
“tortfeasor takes the plaintiff as he finds him” (Bowen v. Board of Retirement, supra, 42
Cal.3d at p. 580), we conclude the majority rule should be applied in California.15

physician should not be liable for malpractice if the plaintiff’s negligence led to the
hospitalization is obviously wrong]; Sendejar v. Alice Physicians & Surgeons Hospital,
Inc. (Tex.App. 1977) 555 S.W.2d 879 [in a malpractice action regarding treatment of
back injury, patient’s negligent driving should not have been submitted to jury under the
defense of contributory negligence].)
15     Defendants have chosen to ignore the cases from other jurisdictions and their
appellate briefing has not acknowledged the majority rule or directly addressed the
reasoning behind it. As a result, they have not presented a convincing argument why this
court should reject the majority rule.


                                             32
Therefore, the issue of a plaintiff’s comparative fault should not be presented to the jury
when the plaintiff’s allegedly negligent conduct occurred before the first responders
arrived at the scene of the accident.
       Applying this rule of law to the facts of this case, we conclude the jury should not
have been instructed on Harb’s negligence using CACI No. 405 and defense counsel
should not have been allowed to argue to the jury that Harb’s failure to control his blood
pressure was negligence that contributed to the injuries for which plaintiffs sought
damages.
       E.     Prejudice
       Defendants contend there was no prejudice from the erroneous jury instruction on
comparative negligence because the jury never reached question No. 5 in the special
verdict form that asked, “Was the plaintiff Mohamed Harb contributorily negligent?”
              1.     Prejudice from Giving a Comparative Negligence Instruction

       Initially, we note it is common for appellate courts to conclude an erroneous
instruction was harmless where the jury does not reach the question addressed by the
erroneous instruction. (E.g., Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 273
[jury found motorist was not negligent and did not reach question of the plaintiff-
bicyclist’s negligence in causing collision]; Vahey v. Sacia (1981) 126 Cal.App.3d 171,
179 [erroneous refusal to give instruction regarding damages was not prejudicial because
jury found defendant was not liable and did not reach damages]; Thompson v. Keckler
(1964) 228 Cal.App.2d 199, 214 [purportedly erroneous instructions regarding damages
were not prejudicial because jury never reached question of damages].) Nevertheless, the
conclusion of no prejudice is not automatic because California courts are required to
conduct “an examination of the entire cause.” (Cal. Const., art. VI, § 13.) Under this
constitutional directive, courts must determine the question of prejudice based on the
facts and circumstances of the particular case.

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       Courts in other jurisdictions have found prejudice from the erroneous giving of a
comparative negligence instruction in cases where the jury did not reach that issue.
       For example, in Harding, supra, 3 P.3d 1286, the court rejected the defendant
doctor’s argument that the erroneous instructions on the deceased patient’s negligence
were a moot issue because the jury found for the defendants without reaching the issue of
the patient’s negligence. Instead, the court concluded that the defendants’ statements
during opening argument and points raised during cross-examination denied the plaintiff
a fair and impartial trial. (Id. at p. 1291.)
       In Fritts, supra, 934 P.2d 371, an Oklahoma appellate court concluded that (1) the
submission of the decedent’s comparative negligence to the jury was error and (2) there
was a strong probability the erroneous instruction mislead the jurors and affected the
outcome. (Id. at p. 375.) In Fritts, the comparative negligence concerned the decedent’s
negligence in crashing his pickup. (Id. at p. 372.) The trial court admitted evidence
regarding the decedent’s drinking at the time of the accident and evidence of his chronic
substance abuse. (Id. at p. 375.) The appellate court concluded this evidence was
irrelevant and extremely inflammatory on the issue of liability. (Id. at p. 376.) The
judgment was reversed and the case remanded for a new trial.
       In Martin, supra, 409 S.E.2d 874, the plaintiff lost control of his vehicle and
collided with a guardrail. After receiving medical treatment, he became paralyzed. The
plaintiff sued the medical care providers, claiming his paralysis was the proximate result
of their negligent diagnosis and treatment. The trial court refused to give a proposed
instruction directing the jury not to consider the cause of the automobile wreck in
deciding whether the defendants were liable for medical malpractice. (Id. at p. 876.) The
appellate court determined this refusal was error. (Id. at p. 877.) In addition, the court
concluded, without analysis, that the instructional error was not harmless and remanded
for a new trial. (Ibid.)

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       In Tobia v. Cooper Hospital University Medical Center (1994) 136 N.J. 335 [643
A.2d 1], the defendants in a medical malpractice action argued an incorrect jury
instruction on the patient’s comparative negligence had been rendered moot by the jury’s
finding the defendants had not been negligent. (Id. at p. 5.) The New Jersey Supreme
Court concluded the erroneous instruction may have affected the verdict by improperly
focusing the jury’s attention on the patient’s conduct. (Ibid.) As a result, the court
reversed the judgment and remanded for a new trial. (Id. at p. 6.)
       In contrast to the results in the foregoing cases, the Iowa Supreme Court
concluded a trial court’s error in giving a comparative fault instruction resulted in no
prejudice because, in accordance with the verdict form, the jury found no causal fault on
the doctor’s part and answered none of the verdict form’s questions about the deceased
patient’s comparative fault. (DeMoss v. Hamilton, supra, 644 N.W.2d at p. 307.)
              2.     California’s Approach to Contributory Negligence

       For historical context, we note that when the all-or-nothing rules of contributory
negligence were the law of California, the following principles regarding reversible (i.e.,
prejudicial) error were applied:

       “If there is evidence of contributory negligence, even though it is slight as
       compared to the negligence of the defendant, a refusal to give an instruction
       on contributory negligence is error and such error is obviously prejudicial.
       [Citation.] However, giving an instruction on contributory negligence
       where there is no evidence to support it is reversible error. (Burks v.
       Blackman (1959) 52 Cal.2d 715 [344 P.2d 301].)” (Simmons v. Wexler
       (1979) 94 Cal.App.3d 1007, 1012 [trial court did not err in refusing to give
       contributory negligence instruction because there was no showing of
       contributory negligence by motorcyclist].)
       If this latter principle were extended to California’s current comparative fault
scheme, it would mean that giving an instruction on comparative negligence where there
is no evidence to support it is reversible error. We do not think such a bright-line rule
regarding prejudice is appropriate in current times. Instead, we will analyze the facts and

                                             35
circumstances of this case to determine whether prejudice resulted from the erroneous
comparative negligence instruction.16 (See Vine v. Bear Valley Ski Co. (2004) 118
Cal.App.4th 577, 601 [prejudicial effect of instruction error requires evaluation of “(1)
the state of the evidence; (2) the effect of other instructions; (3) the effect of counsel’s
arguments; and (4) any indications by the jury itself that it was misled”].)
              3.      Analysis of Facts of this Case

       Plaintiffs’ motion in limine No. 1 sought to exclude evidence that (1) Harb’s blood
pressure was high, (2) he failed to take medication to control his high blood pressure, and
(3) if he had taken that medication, the incident would not have happened. The trial court
denied the motion and allowed the presentation of the evidence upon which the
comparative negligence defense was based.
       During opening statements to the jury, City’s defense counsel referred to Harb’s
medical history and told the jury it would hear testimony from a doctor that Harb did not
follow that doctor’s instructions about taking important medications. Defense counsel
told the jury Harb’s failure to take the medication was important because the evidence
would show that a major cause of a hemorrhagic stroke is hypertension, exactly the
condition that the medications prescribed were intended to treat. Later in his opening
statement, defense counsel again referred to the issue of Harb’s failure to take medication
for hypertension and read a portion of the deposition of Harb’s personal physician to the
jury about the medication and Harb’s failure to take it.


16      This conclusion and the facts presented in Romo v. Southern Pac. Transportation
Co. (1977) 71 Cal.App.3d 909, leads us to reject defendants’ argument that Romo
establishes a rule of law that giving an instruction on a plaintiff’s comparative negligence
cannot constitute reversible error when the jury never reaches the issue. In Romo, the
plaintiff claimed an error arose from the verdict forms submitted to the jury, not the
instructions, which the court determined “fully and fairly presented the comparative
negligence rule.” (Id. at p. 921.)


                                              36
       Thus, the opening statements introduced the jury to defendants’ argument
regarding who was to blame and their position that Harb’s failure to take medication for
his hypertension was important.
       During the trial, defendants examined Harb’s personal physician, his wife and Dr.
Alberstone about Harb’s hypertension, a 2004 stroke and his subsequent failure to take
the medication prescribed for his hypertension.
       Parvez Memon, M.D., first saw Harb as a patient in June 2004 when Harb was
admitted to the hospital with stroke-like symptoms. The defense attorneys’ cross-
examination of Dr. Memon focused on Harb’s medical history, his 2004 stroke that was
diagnosed as a lacunar infarct, the medications subsequently prescribed, and whether
Harb took those medications. The defense attorneys’ cross-examination of Mrs. Harb
also addressed his 2004 stroke, medical history and whether Harb was taking his
medications. Finally, City’s defense counsel’s cross-examination of Dr. Alberstone
elicited his opinion that if Harb had followed his doctor’s advice and taken his blood
pressure medication, it would have reduced the risk of having the hemorrhage and the
extent of the hemorrhage.
       During his closing arguments, City’s defense counsel told the jury that “Harb
gambled with his own life.… He owns all of the responsibility here as to what
happened.… [¶] … [¶] He chose that path.” To support this position, defense counsel
referred to Dr. Alberstone’s testimony that if Harb had taken his blood pressure
medication it would have reduced the risk of having a hemorrhage and the extent of the
hemorrhage. Defense counsel told the jury that Harb failed in his responsibility to his
family, as its sole income earner, to take care of his health.
       The opening statements, the state of the evidence, the nature of the erroneous
instruction, and the closing arguments of counsel convince us that there is “a reasonable
probability that in the absence of the error, a result more favorable to the appealing party

                                              37
would have been reached.” (Soule, supra, 8 Cal.4th at p. 574.) In short, allowing the
issue of Harb’s comparative negligence in failing to take his blood pressure medication
may have affected the findings that the defendants were not at fault by improperly
focusing the jury’s attention on the patient’s conduct. (See Tobia v. Cooper Hospital
University Medical Center, supra, 643 A.2d at p. 5.)
       Therefore, plaintiffs have established the instructional errors were prejudicial and
a new trial is warranted as to all of the defendants.
                                      DISPOSITION
       The judgment is reversed and the matter remanded to the superior court for a new
trial. Appellants shall recover their costs on appeal.


                                                         ___________________________
                                                         Franson, J.


WE CONCUR:

_____________________
Gomes, Acting P.J.

_____________________
Detjen, J.




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