Derenberger v. Lutey11/17/1983
ution of the faults causing it."
In Li v. Yellow Cab Company of California (1975), 13 Cal.3d 804, 825-26, 532 P.2d 1226, 1241, 119 Cal.Rptr. 858, 873, the Supreme Court of California addressed the issues as follows:
"Finally there is the problem of the treatment of willful misconduct under a system of comparative negligence. In jurisdictions following the `all-or-nothing' rule, contributory negligence is no defense to an action based upon a claim of willful misconduct (see Rest.2d Torts, Section 503; Prosser, Torts, supra, Section 65, p. 426), and this is the present rule in California. (Williams v. Carr (1968), 68 Cal.2d 579, 583, 68 Cal.Rptr. 305, 440 P.2d 505.) As Dean Prosser has observed, `[this] is in reality a rule of comparative fault which is being applied, and the court is refusing to set up the lesser fault against the greater.' (Prosser, Torts, supra, Section 65, p. 426.) The thought is that the difference between willful and wanton misconduct and ordinary negligence is one of kind rather than degree in that the former involves conduct of an entirely different order, and under this conception it might well be urged that comparative negligence concepts should have no application when one of the parties has been guilty of willful and wanton misconduct. It has been persuasively argued, however, that the loss of deterrent effect that would occur upon application of comparative fault concepts to willful and wanton misconduct as well as ordinary negligence would be slight, and that a comprehensive system of comparative negligence should allow for the apportionment of damages in all cases involving misconduct which falls short of being intentional. (Schwartz, supra, Section 5.3, p. 108.) The law of punitive damages remains a separate consideration. (See Schwartz, supra, Section 5.4 pp. 109-111.)"
Subsequent to the California Supreme Court's decision in Li v. Yellow Cab Company of California, supra, the California Court of Appeals, Fifth District, expanded upon said decision in Sorenson v. Allred (1980), 112 Cal.App.3d 717, 725-26, 169 Cal.Rptr. 441, 446, as follows:
"In summary, we conclude that no defensible reason exists for categorizing willful and wanton misconduct as a different kind of negligence not suitable for comparison with any other kind of negligence. The adoption of comparative negligence in Li rendered such a separate category unnecessary since contributory negligence on the part of the plaintiff was no longer a total bar to recovery for a tortious injury. We apply an old axiom, `when the need for a rule ceases, the rule ceases.'
"The important by-product of the abolition of shades of negligence of other categorizations of fault would be the streamlining of the trial of cases. The submission to the triers of fact, particularly juries, of issues of liability upon the simply stated question, `Whose fault was it, and if both are at fault, what are the degrees of fault of each' places the issues in a context more readily understood. The greater the elimination of such `buzz' words as willful misconduct, last clear chance, [assumption of the risk], etc., the more the focus will be upon the real issues as we have noted above. The elimination of willful misconduct as a bar to recovery offers justice to both plaintiffs and defendants in situations where it now is all or nothing. Witness Ewing v. Cloverleaf Bowl, supra, 20 Cal.3d
, 398, 143 Cal.Rptr. 13, 572 P.2d 1155, where plaintiff would be the beneficiary of the elimination of willful misconduct as a total bar to recovery.
"For the reasons discussed, we conclude that the doctrine of comparative negligence should apply where either party's conduct
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