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Harding v. Deiss6/27/2000
Mendoza, the District Court did not dismiss the defense of comparative negligence or charge the jury to completely disregard defense counsel's opening statements which alluded to the question of Candice's blame or fault before coming to the hospital. Rather, it issued jury instructions on such a defense.
We have concluded that the defense of comparative negligence was improper based on the facts of this case. Because Respondents argue that the comments at issue during their opening statement and during cross-examination of Appellant went to their comparative negligence defense, defense counsel's comments regarding Candice's "prior acts" denied Appellant a fair and impartial trial and the District Court abused its discretion in denying Appellant's motion for a mistrial.
Reversed.
WILLIAM E. HUNT, SR.
We Concur:
J. A. TURNAGE
JAMES C. NELSON
W. WILLIAM LEAPHART
JIM REGNIER
TERRY N. TRIEWEILER
Justice Karla M. Gray, specially concurring.
I join the Court's opinion in its entirety. With regard to issue 1, however, I write separately to briefly address an argument raised by the Respondents and noted by the Court.
We properly conclude in this case that comparative negligence as a defense does not apply where a patient's pre-treatment behavior merely furnishes the need for medical care or treatment which later becomes the subject of a malpractice claim. On that basis, we hold that the District Court abused its discretion in instructing the jury on comparative negligence.
The Respondents argue, in this regard, that the jury never reached the issue of Candice's negligence on her survivorship claim because the jury concluded that Defendants were not negligent in both the survivorship and wrongful death claims. Thus it is a moot issue on appeal.
They advance no authorities in support of their argument, however, as required by Rule 23(b), M.R.App.P., and it is not this Court's job to do the parties' work for them. For that reason, the Respondents are not entitled to have this Court address their argument on the merits.
KARLA M. GRAY
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