requests for a new trial limited to damages only the jury's assessment that the deceiving was forty nine percent contributory only negligence should be reinstated but that position is that even if the court the facts of the case the court talked about making sure that hospitals are made insurers of patients but that's because i thought because the patient had been released and was no longer under the control of the of the hospital saw here that i think makes that quite a bit different from this case here i have to disagree because the focus of the supreme court and back was not on the extent of the duty of the defendant and as much as the the focus being truly on the state of mind of the deceit and it was because that was driven by the  sort of ultimate injury to the patient there is suggestion that she should never have been released to begin with and to that extent i just don't see how the hobart language can apply their question to the state the way the quote attributed the standard which was that for patients under treatment for suicidal tendencies who commit suicide and that's a that's a broad statement that encompasses the custodial situation that your honour's is directing the attention to versus the outpatient situation but the basic concept of being under treatment for suicide attempt tendencies is present in best situations and the public policy concern that if the contributory negligence defense is for a closed completely then right these institutions whether these health care givers to do and  hospitals are insurers i mean they are in the sense that they say they take control over they have a great deal of control over their care and safety of the patient when the patient is not on her own that's than impatient to let him go and convince you know in the opinion suggests that the patient convinced his physician with the intention of doing harm to there it is not i don't think that it's as clear cut and when you and when the court looks at and i'm sure the quote here as if you know the finale of these cases it's not me i don't mean to suggest that there is a a bright clear line i simply mean that sometimes the language and cases are driven by the facts in those states and when the facts differ the language may not be quite the same but question is really whether the contributory negligence instructor should have articulated is that i'm last the only british that conclusion that the court can draw from the evidence and that's all the it's less the only rational conclusion is that the patient was completely devoid what the evidence is the evidence only has rule on one way to be taken that sounds like it should have been settled right then it should never have gone to trial to begin with rob it can't be the scheme i mean really that cannot it cannot be applied in the literal sense i think because they aren't there and really i guess it goes to this is that a question of law or is that a question of fact it is do we do we allow the jury to do we allow the judge to say you know what this is a close case this is a case where that standard may in fact not apply and therefore i'm going to allow the jury to you know just i'm not going to course the jury was instructed in this case as it is an odd cases where there's contributory negligence that if you find there were fifty percent there's going to be a verdict for all of the defendant and the jury now or the jury knows that in the jury in this case came back with forty nine percent presumably and i think it's a fair assumption based on hold right and based on the facts of this case if the facts had been different the jury would have h hobart that the extent to which that defense is applicable there's a question affect for the jury now there is there is a threshold issue for the court as there is essentially without questions that are usually questions of fact and that is does all the evidence point one way that the patient is completely devoid of reason and so do week to week once the judge answers that very question and says i was wrong the first time i now see the evidence differently yes i'll see happens that it and that it does point all in that way that decision having been made don't we owe some deference to that judge and in fact we do don't we at least from the judge's perspective who was the one sitting there hearing the evidence looking at the witnesses maybe even looking at the jury in terms of their reaction to the evidence and saying that no the judge got that wrong and we can do that and so the problem i have is that what possible case could there be where the judge would be upheld in just saying you know what i got it wrong the first time i think that no contributory negligence or if the jury should never been instructed well i may answer that question rather it would be a case without testimony such as this where doctor who had been treating this patient over many years over a period of i think four years or sell it and had seen her that's that's that's i understand i don't mean to keep interrupting but of course the plaintiff keeps talking about how they presented an expert witness all seven agreed on that the three that didn't agree was that sometimes the contributory negligence destruction should be tempered by a diminished capacity instruction correct and that's what justice freeman chief justice freeman at the time and chief justice at the time of freeman advocated the end and quite honestly on one of the issues you know because you have to consider everything i'm not sure how this case is going to turn out but but one of  insist the california court instructed them something to the effect of a diminished capacity instruction stating that if the if the maintaining the rationality of the a question of fact if the jury should find that the that the patient was in a mental condition that he that he or she was that likely to her harm herself or himself or was not capable of realizing the consequences of his act or caring for his own safety and that the defendant hospital with knowledge of plaintiff's condition had undertaken to safeguard him and protect him against himself and then i instruct you that as a matter of law the plaintiff was not guilty of contributory negligence and so the question is whether that's sort of diminished capacity instruction whether whether it's whether it's no contributory negligence destruction of the law or a contributory ne instruction while tempering that by instructing the jury that if you find the facts to be that the hospital that she couldn't she was a reasonable person wasn't wasn't able to like it to us but here we are confronted where a little closer case and whether or not maybe that diminish the structure should be good but i think the same principle should apply to respect to question the first is and ahead part yeah and you know the court obviously is aware that the the majority thought that that issue would be addressed by the language in i p i ten o two which instructs a jury to take him to take into question becomes whether it's damages only or full refile should we in fact instruct the jury that or instruct the judge that he still has he certainly within his discretion under the facts of this case to say no contributory negligence but should we also bring up the possibility that or you can say yes you can have a contributory negligence but you should also temper that if you feel the facts were good with a diminished capacity to strike similar to the one to do more team but i here from de martini but it says it in a separate instruction which requires the jury to sort of consider it separately from the contributory negligence when you merge the two concepts contributory negligence under for the jury to decide whether it is fully negated by being convinced by the fact that she was not able to exercise ordinary care well there's nothing that about the  three that says the jury has to determine that there's contributory negligence through and that's my response to that they're just the jury certainly free under those two instructions to reach that conclusion and potentially co potentially could assess of very small amount of contributory negligence depending on the financial situation and that's the point of head start when you when you you when raise the issue of forty nine percent contributory negligence on the part of the s and damages and it did what it did i mean let me at least finally i just ask you what what sort of alternative results are you looking for here first of course you're would be if the court found out that it should have phoned the trial course to terminations and that there should be no contributor a negligence instruction then the remedy and it's clear from the junker case out of the supreme court the remedy is not to send it back for new trial and damages only it's got nothing to do if anything that's be ackwards if there were going to be any kind of a limited retrial it would be an liability only damages are set and that's exactly what happened and juncture in jonker with the player said i want a new change whatever was exactly yes that's exactly right your honor and if the court for some reason and i don't see why this would ever be necessary so again in the alternative to the alternative relief would be if the court that there had to be a new trial absolutely not limited to damages there's just there's not one case anywhere in fact all of the cases that are cited in the briefs point in the opposite direction so there's no basis for that we'll give you a couple minutes ok first of all thank you very much here in the closing arguments and then reflecting on the law and reflecting on the arguments of counsel in their push trial motions when you're outside the passions of the advocacy work the is granted that is the abuse of discretion stated is that no doubt about it but sometimes the basis for the new trial borders on a question of law or at least the application of   legal standard to the particular facts and a damages only retrial is a fairly unusual i retried and it's unusual for  that that it should only really happen in limited circumstances in the case laws case laws tends to say what you need to show to be entitled to that and i think  and i think our supreme court in junk or at least set out the factors that must be established before a retrial damages only can multiple defendants in which different acts of negligence relaxed so you know order to achieve justice you would have to compare the know how that could be done when issues when when it's as a practicality you're going to get into fly ability it's just difficult to say really damages and how do you do that well  liability issues kept cropping up and fault kept being improperly raised and because it's difficult to avoid that's my point and then we ended up and i agreed with them just  there's a reflection of the battles are two completely different questions and i'd like to address that first of all the the court in this case found that the combination of the because you're not paying attention to where you're going or driving too fast to avoid an accident that's caused by the negligence of another i have there is a very disagree with your counsel because you know what what is shared by all those position that the evidence was overwhelming and undisputed that she was incapable of exercising ordinary care of her behalf if she was capable of exercising ordinary care on her own behalf the implication as that she had several little regard for her own life or the feelings of her family that she killed herself despite that and that's highly prejudicial i mean we have to admit that the stigma involved and suicide suicide has long been considered the one forgivable send that someone who commits suicide does not her own self destruction when the evidence the totality of the evidence was that she was a very very sick person within paired judgments who required hospitalization in a locked psychiatric unit in order to protect her from the very thing that she dead and that the hospital in undertaking this is is completely different from a situation where a patient is out on their own and there is no control so it's almost like saying i mean the courts have struggled with this concept three years that someone who intentionally self destructs should be compensated for their own intentional act the law has evolved over the years so that we have a greater understanding that under certain circumstances due to mental illness the person lacks the capacity to protect themselves from themselves and that's exactly the case that we have here and i understand that but what's what where where is the problem with allowing twelve different individuals deciding all the issues disposed to damages point your honor and the only thing that i can tell you is that it adds tremendous sleigh to the expanse and the extensiveness of the trial of wires calling back all the liability with this was about a three week trial of the liability witnesses the expert witnesses and all of the time and effort and expense that's associated with that and i think in this case the the issues of liability and issues the damage are not so intertwined i think that the ruling that she was not capable yesterday's the property remedy the proper remedy was to rule that she with it was incapable of contributory negligence as a matter of law then we're talking about taking away that that question from the jury specifically and i know that what is said it it well if he is so mentally yeah i'll bet he is incapable of being contributory negligence and he would be entitled to have that jury issue actually come up before the trial judge well the structure may ask the judge to strike plea contributory negligence defense first in motions and lemony then throughout the trial then at the close of the defendant's instructions obviously i felt it and had he had he done any of that at the beginning of the trial don't you think the entire trial would have changed i mean they would have been able to introduce certain evidence because they wouldn't have been able to trash or the way they ted oh that's that's that's one perspective but it's not necessarily big one well maybe here to deal with it but you've got because we're maybe i shouldn't  utilize that term right but obviously you have to wrap it up just like your honor we're asking for you to affirm the decision of the trial judge granting a new trial on damages only and in the alternative a new trial on all issues and i don't think reinstating the be jury amount  shares the area here's the error or gets rid of the prejudice that occurred in this case so those would be the two things obviously eight is what i'd prefer does the how were the alleged errors the alleged trial errors connected to damages and so there hasn't been an argument about there being a stigma hasn't been raised before about my response to that and i probably would think of more if i really reply brief instead of doing this right now but my first and foremost i would say the damages here were loss to society damages so i don't understand why there would be any connection between a stigma and loss to society damages that are being sustained by other and of my family members the second response to the is that the the very best you could do with that argument is to say not that is a damages only you could say this liability based error which is a contributory negligence fact instruction for the damages not that a damages only so there's a by two specific responses to this new argument that's being raised by the plaintiff as far as the abuse of discretion issue which of course the court is very appropriately focusing on spied on a fight to the court that would that would justify a new trial and damages only and there's certainly no reason at all to readdress the issue of damages i think are much thank you very much are higher states will be taking under advisement for the reason