Silveira v. Imperial Irrigation District

California Court of Appeal Oct 23, 1978 No. Docket Nos. 14965, 14964Published

Before: Brown (Gerald)

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Holding. The court affirmed the judgments against the District, holding that the District was not entitled to comparative contribution among defendants because it failed to preserve the issue at trial, and that the trial court properly refused instructions on vicarious liability and negligence per se.

Issues

Whether the District is entitled to comparative contribution among joint tortfeasors after failing to request apportionment at trial.
Whether the trial court erred in instructing the jury on negligence per se regarding safety standards for high voltage wires.
Whether the negligence of an independent contractor should be imputed to the employer to reduce the employer's recovery in a wrongful death action.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Under these circumstances the benefits of American Motorcycle doctrine must be denied.”

“conceding District did not need to comply with GO 95 does not excuse it from complying with section 8029 or from exercising the care of a normal person under all the circumstances.”

“the defendants’ liability here should not be reduced because of some relationship among the plaintiffs.”

Opinion

BROWN (Gerald), P. J.

Imperial Irrigation District (District) appeals the judgments awarding Debra Lynn Dantice $157,000 and Vera Ann Silveira $315,400 in wrongful death actions.

Dantice and Silveira were killed when the extended boom of the hayloader Dantice was using contacted a high voltage wire maintained by the District. The hay being loaded was owned by William Young who had stacked it underneath the wires. Silveira had been warned in writing of the danger. The law forbids operation of a hayloader within six feet of a high voltage line (Pen. Code, § 385, subd. (b)) and requires a sign on the vehicle to that effect (Pen. Code, § 385, subd. (c)). The hayloader had no sign. Dantice, Silveira, Young and the District were all found negligent. Applying comparative negligence the jury found Dantice was 55 percent negligent; Silveira 17 percent. There was no apportionment of the negligence of the defendants, they being held jointly and severally liable. The District argues comparative contribution applies.

American Motorcycle Assn.

Superior Court,

20 Cal.3d 578 [146. Cal.Rptr. 182, 578 P.2d 899] the court rejected the doctrine of comparative contribution but adopted the equitable indemnity doctrine permitting concurrent tortfeasors to get partial indemnity from other defendants on a comparative fault basis. Where the record has been properly preserved below, a case can be sent back for apportionment of

[708]

damages. The factors to consider are surprise, unfairness and the administration of justice

(Safeway Stores

v. Nest-Kart; 21 Cal.3d 322, 333-334 [146 Cal.Rptr. 550, 579 P.2d 441]). Here the court and the parties knew comparative negligence had been adopted and knew of the “invaluable assistance” which could be rendered from special verdicts

(Li

Yellow Cab Co.,

Silveira v. Imperial Irrigation District

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