March 10, 1995
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1556
DEBRA A. RODGERS, INDIVIDUALLY,
AND BARRY BROWN AND DEBRA A. RODGERS
IN THEIR CAPACITY AS CO-GUARDIANS OF
BRIAN RODGERS, AN INCOMPETENT PERSON,
Plaintiffs, Appellants,
v.
AMERICAN HONDA MOTOR COMPANY,
Defendant, Appellee.
ERRATA SHEET
ERRATA SHEET
The opinion of this Court issued on January 31,
1995, is amended as follows:
1. The first line listing appellee counsel is
corrected to read as follows:
Andrey L. Frey, orally; Wayne D. Struble, Richard
A. Bowman, . . .
2. The last three sentences of the first paragraph
of the opinion are struck.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1556
DEBRA A. RODGERS, INDIVIDUALLY,
AND BARRY BROWN AND DEBRA A. RODGERS
IN THEIR CAPACITY AS CO-GUARDIANS OF
BRIAN RODGERS, AN INCOMPETENT PERSON,
Plaintiffs, Appellants,
v.
AMERICAN HONDA MOTOR COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Chief Judge,
Aldrich, Senior Circuit Judge,
and Stahl, Circuit Judge.
John C. Cabaniss with whom Cunningham, Lyons & Cabaniss, S.C. was
on brief for appellants.
Andrew L. Frey, orally; Wayne D. Struble, Richard A. Bowman,
Timothy J. Mattson, Bowman and Brooke, Peter W. Culley, David E.
Barry, and Price, Atwood, Scribner, Allen, Smith & Lancaster were on
brief for appellee.
January 31, 1995
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ALDRICH, Senior Circuit Judge. In 1965, in line
with the growing concern over the fatal consequence of
contributory negligence, the Maine Legislature enacted a
statute permitting recovery, but reduced damages, in cases
where a plaintiff, though negligent, was less so than the
defendant. Me. Rev. Stat. Ann. tit. 14, 156. Although
there were a variety of state statutes in effect, the
Legislature chose the English one, see Wing v. Morse, 300
A.2d 491, 497 (Me. 1973), essentially word for word, see
Comparative Negligence: Some New Problems for the Maine
Courts, 18 Me. L. Rev. 65, 76 (1966). The statute is unique,
and we are not to look for enlightment to decisions in sister
states.
The facts are simple. Brian Rodgers, an
experienced ATV (all terrain vehicle) rider, found himself
without his helmet at a popular Maine spot where a friend
with a three wheel ATV asked him to help repair it. Some
repairs having been made, plaintiff1 gave it a trial run.
It flipped and he struck his head, receiving brain-crippling
injuries. On his motion, liability was tried first, and the
jury's answers to special questions terminated the case in
defendant's favor. Plaintiff has one basic claim on appeal.
We will deal with it rather than with defendant's contention
1. Strictly, Rodgers is now incompetent and plaintiffs are
his guardians. They are joined by his wife, individually.
We will speak in terms, however, of Rodgers as plaintiff.
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that judgment in its favor would have been proper even if the
evidence plaintiff objected to had been excluded.
For the liability trial, by motion in limine,
plaintiff sought an order excluding testimony that he had not
been wearing a helmet. This was of importance because
defendant had uncontradicted expert testimony that, with a
helmet, plaintiff's injuries would have been insignificant.
Plaintiff's position was that, however much the absence of a
helmet may have added to the damages, it was not a fault that
caused the accident, and that under the Maine statute
comparative fault for the accident itself was the determining
factor. The court ruled otherwise, and the evidence was
subsequently admitted. This was crucial because unless
plaintiff's fault was less than defendant's he was barred by
the statute from recovery. If fault was to be measured by
weighing responsibility for damages, as distinguished from
for the event, on the uncontradicted evidence, it being clear
that plaintiff knew it was best to wear a helmet, he had no
case.
Analysis of the statute persuades us that the court
was correct. It provides, in relevant part,
Where any person suffers death or
damage as a result partly of his own
fault and partly of the fault of any
other person or persons, a claim in
respect of that death or damage shall not
be defeated by reason of the fault of the
person suffering the damage, but the
damages recoverable in respect thereof
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shall be reduced to such extent as the
jury thinks just and equitable having
regard to the claimant's share in the
responsibility for the damage.
Where damages are recoverable by any
person by virtue of this section, subject
to such reduction as is mentioned, the
court shall instruct the jury to find and
record the total damages which would have
been recoverable if the claimant had not
been at fault, and further instruct the
jury to reduce the total damages by
dollars and cents, and not by percentage,
to the extent deemed just and equitable,
having regard to the claimant's share in
the responsibility for the damages, and
instruct the jury to return both amounts
with the knowledge that the lesser figure
is the final verdict in the case.
Fault means negligence, breach of
statutory duty or other act or omission
which gives rise to a liability in tort
or would, apart from this section, give
rise to the defense of contributory
negligence.
If such claimant is found by the
jury to be equally at fault, the claimant
shall not recover.
Me. Rev. Stat. Ann. tit. 14, 156.
This is a lengthy statute. See, e.g., the
Wisconsin statute the court quoted in Wing, 300 A.2d at 498.
The first consideration that struck us was the rigidity of
the final, all-important cut-off paragraph as against the
sensitivity of the language preceding it. Damage reduction
shall "not [be] by percentage, [but] to the extent deemed
just and equitable, having regard to the claimant's share in
the responsibility for the damages," but then the blunt cut-
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off, "If claimant is found by the jury to be equally at
fault." The change in tone was apparently felt by the Maine
court as well. It observed, "This paragraph was not found in
the original draft of the Bill considered by the Legislature
and is quite obviously the result of a political compromise."
Striking "at fault," and substituting "responsible for the
damage sustained," the court proceeded to interpret the
paragraph as saying,
If in the apportionment process such
claimant is found by the jury to be
equally responsible for the damage
sustained or more responsible for the
damage sustained than the defendant, the
claimant shall not recover.
Wing, 300 A.2d at 501.
With the uncontradicted evidence that plaintiff's
failure to wear a helmet was responsible for essentially all
the damage sustained, this reading of the statute is fatal to
his case. The Wing decision itself is distinguishable, but
its language is an answer to all plaintiffs' claims, writ
large; the helmet evidence was admissible on liability.
Affirmed.
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