Harb v. City of Bakersfield, 233 Cal. App. 4th 606

Dr. Mohamad Harb suffered an intracerebral hemorrhagic stroke while driving home, ran his car onto a sidewalk, and exhibited vomiting, slurred speech, disorientation, and a head abrasion.
Officer Claudia Payne arrived, concluded Harb was intoxicated, struggled to handcuff him and delayed medical transport; the first ambulance left without Harb and a second ambulance transported him about 49 minutes after officers arrived.
Harb underwent surgery hours later, survived, but sustained severe, permanent brain damage and requires daily care.
Harb and his wife sued the City, Officer Payne, Hall Ambulance, and paramedic Dumont for delaying medical treatment; at trial the jury returned defense verdicts and plaintiffs appealed.
On appeal plaintiffs challenged two jury instructions: (1) a Government Code §820.4 police-immunity instruction using the phrase “exercising due care,” and (2) a comparative negligence instruction attributing pre-incident hypertension management to Harb.
The Court of Appeal reversed, finding the immunity instruction misleading/redundant and that comparative-fault was improperly submitted because pre-incident negligence that only created the occasion for care is not comparative negligence when the claim is for aggravation caused by responders’ negligence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether giving a Government Code §820.4 police-immunity instruction was proper	§820.4 instruction was unnecessary in a negligence case and its wording (“exercising due care”) was ambiguous and likely misled jurors into thinking officers had immunity even if negligent	The statute correctly states the law; “due care” and “reasonable care” are equivalent and the instruction did not mislead jurors	Reversed: the instruction was correct in the abstract but redundant and ambiguously worded; reasonable likelihood jurors misunderstood it, prejudicing plaintiffs’ right to a fair trial
Whether plaintiff’s pre-incident negligence (failure to control hypertension) may be submitted as comparative negligence against first responders for damages that are solely the result of the responders’ delay	Pre-incident negligence that merely furnishes the occasion for medical attention cannot be used to reduce liability for subsequent negligent care; tortfeasor takes plaintiff as found	Defendants argued comparative fault principles apply and the hemorrhage outcome was effectively determined before responders arrived	Reversed: California adopts the majority rule — pretreatment conduct that only provides the occasion for care is not comparative negligence and should not be submitted to the jury when damages sought are from negligent care/delay

Sullivan v. County of Los Angeles, 12 Cal.3d 710 (Cal. 1974) (interpreting §820.4 as immunizing nonnegligent acts in execution or enforcement of law)
People v. Albertson, 23 Cal.2d 550 (Cal. 1944) (warning juries may treat formal but irrelevant instructions as governing law)
Soule v. General Motors Corp., 8 Cal.4th 548 (Cal. 1994) (standard for prejudice from instructional error — reasonable probability of a more favorable outcome absent error)
Collins v. Navistar, Inc., 214 Cal.App.4th 1486 (Cal. Ct. App. 2013) (test for reasonable likelihood jury misunderstood an ambiguous instruction)
Bowen v. Board of Retirement, 42 Cal.3d 572 (Cal. 1986) (restating rule that a tortfeasor takes the plaintiff as he finds him)
Son v. Ashland Community Healthcare Servs., 244 P.3d 835 (Or. Ct. App. 2010) (majority rule: patient’s pretreatment conduct that occasions care is not apportionable as comparative fault)
Mercer v. Vanderbilt Univ., 134 S.W.3d 121 (Tenn. 2004) (rejecting comparative-fault attribution to patient whose antecedent negligence merely provided occasion for treatment)
Rowe v. Sisters of Pallottine Missionary Soc., 560 S.E.2d 491 (W. Va. 2001) (health-care provider cannot compare plaintiff’s pre-treatment negligence that triggered need for care)
Harding v. Deiss, 3 P.3d 1286 (Mont. 2000) (temporal rule: pretreatment conduct furnishing the need for care is relevant to causation but not to apportionment of fault)