Zavala v. Regents of University of California

125 Cal.App.3d 646 (1981) 178 Cal. Rptr. 185 ROBERT ZAVALA, Plaintiff and Appellant,

v.

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

Docket No. 63312. Court of Appeals of California, Second District, Division Four.

November 13, 1981. [647] COUNSEL

Thomas F. Mortimer for Plaintiff and Appellant.

Grunsky, Pybrum, Skemp & Ebey, Grunsky, Pybrum, Skemp, Ebey & Farran and Frederick H. Ebey for Defendants and Respondents.

OPINION

WOODS, J.

Plaintiff appeals from a judgment in favor of defendants following a jury trial on his action for personal injuries. The bifurcated trial was on the issue of liability only. The jury rendered a special verdict, finding that defendants were negligent and that plaintiff was guilty of wilful misconduct, and apportioned liability 80 percent to plaintiff and 20 percent to defendants. The trial court found that wilful misconduct on the part of the plaintiff barred recovery against the defendants, who were guilty of only ordinary negligence, and entered judgment in favor of defendants. We have concluded that, applying the doctrine of comparative negligence, the trial court should have allowed the matter to proceed to trial on the issue of damages and assessed to plaintiff 20 percent of any damages awarded.

Appellant also cites as error the instruction of the jury on the issue of wilful misconduct, contending that the evidence is insufficient to support a finding of wilful misconduct on the part of the plaintiff.

[648] I

The facts as reflected by the record, and not as distorted by the appellant's opening brief, are as follows: