The Court of Appeals has a decision I find a little surprising. In the case of Stoller v. Totton, the trial court awarded attorneys fees of $8,000 on the grounds that the Defendant had maintained a frivolous defense of comparative negligence.
I guess, at the end of the day, I’m a bit concerned that the court deemed “comparative negligence” as an affirmative defense for which a Defendant can be sanctioned if he refuses to admit 100% liability. To me, if the Plaintiff proves only 75% negligence on the part of the Defendant and the Defendant proves nothing, then the Plaintiff should still get only a 75% verdict.
The Defendant in this case engaged in sanctionable conduct. Specifically, he denied a request that he admit he was negligent in the operation of his vehicle resulting in a collision. He denied this request stating, “Mr. Stoller alleges that Mrs. Totton may have been in the right lane and converged into the center lane at the same time that Mr. Stoller converged into the center lane” but he didn’t have or seek any evidence that this was the case. So, I can see sanctions for improper responses to admissions.
But a request to withdraw an “affirmative defense” of comparative negligence is a request to concede 100% liability. Under the facts of the case, I think the Defendant was still entitled to present the question to the jury and that even if he said “I didn’t see her, I moved into the center lane, and I hit her” and presented no other evidence he would still be entitled to have a jury consider the question of comparative negligence. Who knows what might come out on cross examination of the Plaintiff. Maybe she was driving too fast, too slow, had the radio on, was talking on a cell phone, didn’t hit the brakes fast enough, didn’t hit the accelerator, didn’t swerve, didn’t sleep last night. None of this is going to knock a whole lot off the liability question, but if a jury could reasonably conclude any of it and reduce liability by 1 or 2%, then I think it gets to a jury.
In fact, it seems to me that the only way a refusal to withdraw a comparative negligence defense should be sanctionable is where it is absolutely clear that a judge would grant summary judgment on the issue of liability, which, of course, is almost never. And, in fact, I tend to think that the court wouldn’t have granted summary judgment on liability in this case, even had the Plaintiff submitted all of the evidence described and even had the Defendant submitted absolutely no evidence.
IC 34-51-2-7 requires a court to give a jury a comparative fault instruction unless all the parties agree otherwise. It doesn’t say anything about the Defendant meeting a threshhold burden. I’ve done no research here, so maybe there is voluminous case law research telling me otherwise, but because of this statutory provision, I think it’s not quite proper to refer to comparative fault as an affirmative defense.
I think the proper sanction would be for unfounded denials of requests for admission, and I think the Plaintiff should have obtained summary judgment on the issue of liability if it was so clear that it was sanctionable for the Defendant to fail to agree that he wasn’t entitled to a comparative fault instruction.
But, maybe careful review of the case law would change my mind.
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