Slow down, go to jail.

Okay, so the title of this entry is a bit over the top. In fact, it’s downright FALSE. But I’m spun up, goddamnit, and when I’m spun up I go all William Tecumseh Sherman with words ‘n’ shit.

I’m originally from Ohio, where the traffic code actually means something in the civil litigation context. The code sets forth the rules of the road. If you break the rules and cause a crash, you’re liable.

That isn’t necessarily the case here in Colorado, where the traffic code (at least in civil litigation) is not so much a set of rules as it is a collection of squishy, touchy-feely suggestions. Regardless of what code does or doesn’t say, civil liability is governed by the venerable common law standard of reasonable care under the circumstances.

As a general matter, I’m not much for bright line rules. One-size-fits-all rules have wrought oceans of injustice over the centuries. Subtle differences in facts can render the application of a rule entirely sensible in one case and utterly ridiculous in another. The genius of the common law reasonable care standard lies in its flexibility; it allows the trier of fact to do justice on a case-by-case basis. However, it’s hard to imagine a place where bright line rules are more appropriate than on public highways.

Which brings us to Hesse v. McClintic (pdf, 29 pages), decided by the Colorado Supreme Court on January 14.  The demands of work, combined with caring for a sick dog and suffering from an ugly case of The Consumption myownself, prevented me from doing a Colorado Supreme Court Round-Up last week. Hesse is one of the cases that slipped through the crack.

Colleen McClintic was driving west through the Rocky Mountains in the right lane of Interstate 70 at the posted speed limit of 65 mph. The sun was up and the weather clear. Traveling next to her in the left lane was a tractor-trailer rig. Behind the semi in the left lane, unbeknownst to Ms. McClintic, was the car of Donald Hess. There were no vehicles in behind Ms. McClintic in the right lane.

Ms. McClintic saw a group of Rocky Mountain bighorn sheep ahead of her, some standing in the right lane of I-70 and some standing on the paved shoulder. Naturally, she slowed down. The truck driver saw the sheep, too, and also slowed down. Mr. Hesse said that another car came up behind him in the left lane, flashing its headlights. Though his view of the right lane was blocked by the semi, Mr. Hesse moved over. The McClintic vehicle, which by that time had slowed to a speed of between 10 and 30 mph, was directly ahead of him. Mr. Hess plowed into the rear of the McClintic car.

McClintic filed suit against Hesse, seeking recovey of damages for injuries she sustained in the crash. Hesse denied that he was negligent and, by way of affirmative defense, alleged that McClintic was comparatively negligent. In Colorado, if a jury finds that both the plaintiff and the defendant were negligent and that the negligence of both contributed to the injury, the jury must assign percentages of fault to both parties. If the number assigned to the plaintiff is 50% or more, the defendant wins outright. If the number assigned to the plaintiff is less than 50%, the plaintiff wins but her damages are reduced by the percentage of fault assigned to her. C.R.S. § 13-21-111(1).

And what was the basis of Mr. Hesse’s comparative negligence charge? Well, McClintic was at fault for slowing down within a lane of travel. She should have pulled off the road onto the shoulder and, oh, I dunno, SAT THERE WITH HER THUMB UP HER ASS until the sheep decided to move on or until some trucker with a bellyful of amphetamines and an acute case of sleep deprivation came along and turned the sheep into road chili.

The case went to trial. Over McClintic’s objection, the judge submitted Hesse’s comparative negligence defense to the jury. Incredibly enough, the jurors bought it. They found both parties negligent, assigned 30% blame to McClintic and awarded damages of $170,000. The judge reduced the award to $119,000 to reflect the comparative fault finding.

McClintic appealed the comparative fault portion of the judgment. The Colorado Court of Appeals essentially told the trial court, “You gotta be fucking kidding.” There was no duty to pull off the road on the facts of this case, and no basis for concluding that McClintic acted anything other than reasonably under the circumstances. The trial judge should have withdrawn the comparative negligence issue from the jury’s consideration. The appellate court remanded with instructions to enter judgment in McClintic’s favor for the full amount of the jury’s award.

In a 4-3 decision, the Supreme Court reversed the Court of Appeals and reinstated the comparative fault finding.  The author of the majority opinion — who once served as a speechwriter for former Secretary of Education, current cog in the right wing scream machine and gluttonous gambling junkie Bill Bennett — wrote that McClintic’s duty, like Hesse’s, was one of reasonable care under the circumstances, and the evidence was sufficient to support a finding that reasonable care included pulling off the road.

Justice Rice’s dissenting opinion reveals just how profoundly buggered the majority’s decision was.  Justice Rice also does a magnificent job of illustrating the correct method for analyzing issues such as this. She begins by noting that the issue isn’t whether drivers have a duty of reasonable care. As a general proposition, that’s true. The real issue is whether that duty includes an obligation to pull over when confronted with animals  standing on the highway.

You start with the traffic code, which prohibits driving at “such a slow speed as to impede or block the normal and reasonable forward movement of traffic, except when a reduced speed is necessary for safe operation of such vehicle or in compliance with law.” C.R.S. § 42-4-1103(1). The code does impose a duty to get off the road, but only only where your “slower speed impedes or retards the normal and reasonable movement of vehicular traffic following immediately behind . . . .” Id. § 42-4-1103(3)(b). McClintic’s slowing down was “necessary for the safe operation” of her vehicle, and did nothing to impede the normal flow of following traffic . After all, there was nothing behind her. Thus, the plaintiff met all the duties the traffic code imposed on her.

But Justice Rice couldn’t end her analysis there. A fifty-year-old line of case law holds that drivers have a general duty of reasonable care, and that case law had to be dealt with.

Under the common law analysis, the issue becomes whether “reasonable care” includes getting off the road on these particular facts. Justice Rice notes that in determining whether to impose a common law duty, courts must:

balance the risk involved, the foreseeability of the injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden on the actor.

The “magnitude of burden” factor favored imposing a duty here. Pulling over, though undoubtedly a pain in the ass, isn’t what you’d deem onerous.

The rest of the factors militated against imposing the subject duty. McClintic didn’t take any unreasonable risks. There was nothing behind her when she started slowing down, and taking advantage of the only open road she had (i.e., the road behind her) was entirely legit. The injurious event wasn’t a foreseeable consequence of McClintic’s actions, as she had no reason to suspect that the driver of a previously undetectable car would suddenly enter her lane without checking to see whether the coast was clear. Finally, the consequences of imposing a duty to pull over when coming upon animals on a roadway can range from ridiculous to severe. After all, it’s not difficult to imagine scenarios in which staying on the road would be safer than pulling over.

This is what we’re up against, folks. Please take a moment to remember Hesse v. McClintic the next time some tort “reform” whore starts blabbering about lawsuit lotteries and how besieged insurance companies are forced to throw massive piles of cash at anyone who files a “frivolous lawsuit.”

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