Mitchell v. Gonzales

819 P.2d 872 (Cal. 1991)

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Nature of the Case

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Facts

Ps, the parents of 12-year-old Damechie Mitchell, who drowned in Lake Gregory on July 4, 1985, sued Ds for damages, claiming Ds' negligence caused Damechie's death. By special verdict, the jury found that Ds were negligent, i.e., they had breached a duty, but that the negligence was not a proximate cause of the death. Damechie, 12 years old, standing 4 feet 11 inches tall, and weighing 90 pounds, had a tag-along little-brother relationship with his friend Luis, who was 14 years old, 5 feet 4 inches tall, and weighed 190 pounds. Ds invited Damechie to accompany them to Lake Gregory for the Fourth of July. P informed D that Damechie could not swim. P suggested that the boys would play in the shallow edge of the lake, D agreed that Damechie could go, as long as he was restricted to the edge of the lake. D denied that she had told P the children would be swimming or that P had told her Damechie could not swim. P claims she told the children that Damechie could not swim. The children said they would watch Damechie. The children rented paddle boards and when asked by the employee in charge of rentals whether they knew how to swim they all responded affirmatively. After lunch, they rented the boards again, and Luis started to push Damechie and Yoshi, who were on the paddleboard, back across the lake, Damechie told Luis he could not swim. Eventually, the paddleboard tipped over and the noise and roughhousing stopped for five to ten minutes. Immediately before the board tipped over, Luis was on the center of the board and Damechie and Yoshi were draped over it. During the quiet period, neither Luis nor Yoshi called or gestured for help, but they appeared to be whispering. No cries for help were noted by the women nearby. Finally after five minutes underwater, Luis said, 'Lady, my friend's down there,' indicating the lake. One of the women yelled for a lifeguard and asked Luis why he had not signaled for help sooner. He replied that neither he nor his sister could swim. He also said that Damechie had grabbed Luis in an effort to save himself and that he, Luis, had kicked Damechie to get him off and to avoid being pulled under. The complaint alleged causes of action for negligence and wrongful death. Defendants asserted comparative negligence on the part of Damechie and Ps. The court refused Ps' proffered instruction on causation in fact under substantial cause and instead gave the causation in fact instruction requested by defendants, under the but for standard. By special verdict, the jury concluded that Ds were negligent but that the negligence was not a cause of the death. The jury, therefore, did not reach a special verdict on comparative negligence. The Court of Appeal reversed.