Li v. Yellow Cab Co.

Decision Date31 March 1975
Citation119 Cal.Rptr. 858,13 Cal.3d 804,532 P.2d 1226,78 A.L.R.3d 393
CourtCalifornia Supreme Court
Parties, 532 P.2d 1226, 78 A.L.R.3d 393 Nga LI, Plaintiff and Appellant, v. YELLOW CAB COMPANY OF CALIFORNIA et al., Defendants and Respondents. L.A. 30277

Hall, Moore & Norkin and Joseph E. Hall, Los Angeles, for plaintiff and appellant.

Mestad & Sanborn, John B. Mestad, Los Angeles, Robert E. Cartwright, San Francisco, Edward I. Pollock, Los Angeles, William H. Lally, Sacramento, Stephen I. Zetterberg, Claremont, Robert G. Beloud, Upland, David B. Baum, San Francisco, and Leonard Sacks, Pico Rivera, as amici curiae for plaintiff and appellant.

Hagenbaugh & Murphy, Los Angeles, Herbert F. Blanck, Encino, and William D. Stewart, Los Angeles, for defendants and respondents.

Ives, Kirwan & Dibble, Martin J. Kirwan, Los Angeles, Robert A. Seligson, Gilbert, Kelly, Crowley & Jennett, Roger E. Kelly, Ellis J. Horvitz and Arthur E. Schwimmer, Los Angeles, as amici curiae for defendants and respondents.

SULLIVAN, Justice.

In this case we address the grave and recurrent question whether we should judicially declare no longer applicable in California courts the doctrine of contributory negligence, which bars all recovery when the plaintiff's negligent conduct has contributed as a legal cause in any degree to the harm suffered by him, and hold that it must give way to a system of comparative negligence, which assesses liability in direct proportion to fault. As we explain in detail Infra, we conclude that we should. In the course of reaching our ultimate decision we conclude that: (1) The doctrine of comparative negligence is preferable to the 'all-or-nothing' doctrine of contributory negligence from the point of view of logic, practical experience, and fundamental justice; (2) judicial action in this area is not precluded by the presence of section 1714 of the Civil Code, which has been said to 'codify' the 'all-or-nothing' rule and to render it immune from attack in the courts except on constitutional grounds; (3) given the possibility of judicial action, certain practical difficulties attendant upon the adoption of comparative negligence should not dissuade us from charting a new course--leaving the resolution of some of these problems to future judicial or legislative action; (4) the doctrine of comparative negligence should be applied in this state in its so-called 'pure' form under which the assessment of liability in proportion to fault proceeds in spite of the fact that the plaintiff is equally at fault as or more at fault than the defendant; and finally (5) this new rule should be given a limited retrospective application.

The accident here in question occurred near the intersection of Alvarado Street and Third Street in Los Angeles. At this intersection Third Street runs in a generally east-west direction along the crest of a hill, and Alvarado Street, running generally north and south, rises gently to the crest from either direction. At appoximately 9 p.m. on November 21, 1968, plaintiff Nga Li was proceeding northbound on Alvarado in her 1967 Oldsmobile. She was in the inside lane, and about 70 feet before she reached the Third Street intersection she stopped and then began a left turn across the three southbound lanes of Alvarado, intending to enter the driveway of a service station. At this time defendant Robert Phillips, an employee of defendant Yellow Cab Company, was driving a company-owned taxicab southbound in the middle lane on Alvarado. He came over the crest of the hill, passed through the intersection, and collided with the right rear portion of plaintiff's automobile, resulting in personal injuries to plaintiff as well as considerable damage to the automobile.

The court, sitting without a jury, found as facts that defendant Phillips was traveling at approximately 30 miles per hour when he entered the intersection, that such speed was unsafe at that time and place, and that the traffic light controlling southbound traffic at the intersection was yellow when defendant Phillips drove into the intersection. It also found, however, that plaintiff's left turn across the southbound lanes of Alvarado 'was made at a time when a vehicle was approaching from the opposite direction so close as to constitute an immediate hazard.' The dispositive conclusion of law was as follows: 'That the driving of NGA LI was negligent, that such negligence was a proximate cause of the collision, and that she is barred from recovery by reason of such contributory negligence.' Judgment for defendants was entered accordingly.


'Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm.' (Rest.2d Torts, § 463.) Thus the American Law Institute, in its second restatement of the law, describes the kind of conduct on the part of one seeking recovery for damage caused by negligence which renders him subject to the doctrine of contributory negligence. What the effect of such conduct will be is left to a further section, which states the doctrine in its clearest essence: 'Except where the defendant has the last clear chance, the plaintiff's contributory negligence Bars recovery against a defendant whose negligent conduct would otherwise make him liable to the plaintiff for the harm sustained by him.' (Rest.2d Torts, § 467.) (Italics added.)

This rule, rooted in the long-standing principle that one should not recover from another for damages brought upon oneself (see Baltimore & P.R. Co. v. Jones (1877) 95 U.S. 439, 442, 24 L.Ed. 506; Buckley v. Chadwick (1955) 45 Cal.2d 183, 192, 288 P.2d 12, 289 P.2d 242), has been the law of this state from its beginning. (See Innis v. The Steamer Senator (1851) 1 Cal. 459, 460--461; Griswold v. Sharpe (1852) 2 Cal. 17, 23--24; Richmond v. Sacramento Valley Railroad Company (1861) 18 Cal. 351, 356--358; Gay v. Winter (1867) 34 Cal. 153, 162--163; Needham v. S.F. & S.J.R. Co. (1869) 37 Cal. 409, 417--423.) Although criticized almost from the outset for the harshness of its operation, it has weathered numerous attacks, in both the legislative 1 and the judicial 2 arenas, seeking its amelioration or repudiation. We have undertaken a thorough reexamination of the matter, giving particular attention to the common law and statutory sources of the subject doctrine in this state. As we have indicated, this reexamination leads us to the conclusion that the 'all-or-nothing' rule of contributory negligence can be and ought to be superseded by a rule which assesses liability in proportion to fault.

It is unnecessary for us to catalogue the enormous amount of critical comment that has been directed over the years against the 'all-or-nothing' approach of the doctrine of contributory negligence. The essence of that criticism has been constant and clear: the doctrine is inequitable in its operation because it fails to distribute responsibility in proportion to fault. 3 Against this have been raised several arguments in justification, but none have proved even remotely adequate to the task. 4 The basic objection to the doctrine--grounded in the primal concept that in a system in which liability is based on fault, the extent of fault should govern the extent of liability--remains irresistible to reason and all intelligent notions of fairness.

Furthermore, practical experience with the application by juries of the doctrine of contributory negligence has added its weight to analyses of its inherent shortcomings: 'Every trial lawyer is well aware that juries often do in fact allow recovery in cases of contributory negligence, and that the compromise in the jury room does result in some diminution of the damages because of the plaintiff's fault. But the process is at best a haphazard and most unsatisfactory one.' (Prosser, Comparative Negligence, Supra, p. 4; fn. omitted.) (See also Prosser, Torts, Supra, § 67, pp. 436--437; Comments of Malone and Wade in Comments on Maki v. Frelk--Comparative v. Contributory Negligence: Should the Court or Legislature Decide? (1968) 21 Vand.L.Rev. 889, at pp. 934, 943; Ulman, A Judge Takes the Stand (1933) pp. 30--34; cf. Comment of Kalven, 21 Vand.L.Rev. 889, 901--904.) It is manifest that this state of affairs, viewed from the standpoint of the health and vitality of the legal process, can only detract from public confidence in the ability of law and legal institutions to assign liability on a just and consistent basis. (See Keeton, Creative Continuity in the Law of Torts (1962) 75 Harv.L.Rev. 463, 505; Comment of Keeton in Comments on Maki v. Frelk, Supra, 21 Vand.L.Rev. 889, at p. 916 5; Note (1974) 21 U.C.L.A.L.Rev. 1566, 1596--1597.)

It is in view of these theoretical and practical considerations that to this date 25 states, 6 have abrogated the 'all or nothing' rule of contributory negligence and have enacted in its place general apportionment Statutes calculated in one manner or another to assess liability in proportion to fault. In 1973 these states were joined by Florida, which effected the same result by Judicial decision. (Hoffman v. Jones (Fla. 1973) 280 So.2d 431.) We are likewise persuaded that logic, practical experience, and fundamental justice counsel against the retention of the doctrine rendering contributory negligence a complete bar to recovery--and that it should be replaced in this state by a system under which liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault. 6a

The foregoing conclusion, however, clearly takes us only part of the way. It is strenuously and ably urged by defendants and two of the amici curiae that whatever our views on the relative merits of contributory and comparative negligence, we are precluded from making those views the...

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