Hammontree v. Jenner: The Rest of the Story
posted by Kyle Graham
I recently picked up 120 Torts and Criminal Procedure examinations, which I must grade before the holidays. In a related story, this will be my last guest-blogger post on the site. Thanks to Gerard, Frank, and my other hosts for their hospitality, and to the readers of this blog for their patience. It’s been fun, at least for me.
I’ll wrap up with another Paul Harvey “here’s the rest of the story” narrative, which may be useful to those of you who teach Torts. (The rest of you will probably want to skip this one.) This entry will discuss Hammontree v. Jenner, a 1971 California Court of Appeal decision.
The Hammontree court rejected the plaintiffs’ contention that strict liability, instead of negligence, should govern a tort suit stemming from a driver’s unanticipated seizure behind the wheel. Unlike Summers v. Tice, which I discussed in a previous post, Hammontree has not cast a substantial precedential shadow. The appellate opinion is short, and gives little sign that the court considered the issue presented to be especially difficult.
The significance of the Hammontree decision derives from its leadoff spot in Franklin, Rabin & Green’s casebook Tort Law and Alternatives, which I use in my Torts class. (I’ve spoken to both the defense attorney at trial in Hammontree and the defense attorney on appeal; both were quite surprised that the case found its way into a textbook.) The authors leverage the case in a variety of ways, using it to introduce the distinction between strict liability and negligence, along with themes such as legal ethics, the mechanics of a tort case, and the nature of precedent.
Last year, I went down to Los Angeles court archives and dug up copies of the original court filings in Hammontree for the use of my students, and others. If anyone is interested in these documents (I find it quite helpful to show novice one-L students what a complaint, answer, motion for summary judgment, etc., look like, which goes a long way toward demystifying these documents), I’ve given them to Christopher Robinette over at the TortsProf blog, who kindly has posted them here.
The documents didn’t contain any big surprises, but they did harbor a few facts that may be interesting and useful to those of you who teach the case. Now that I’ve scared off (or bored to death) 99 percent of this blog’s readers, I’ll explain to the hardy few who remain, after the jump.
First, using information in the court documents, you can track down pictures of the site of the accident in Hammontree, to help students visualize what happened. The crash occurred at Dale and Maxine Hammontree’s Sun Valley Bike and Hobby Shop, which the complaint reveals was located at 7563 Tujunga Avenue in the Sun Valley neighborhood of Los Angeles.
The building that presently stands at that address can be located using the Google Maps function; given its appearance, it may well be the same structure that Jenner crashed into back in 1967. (Just type in the 7563 Tujunga Avenue address, then use the direction arrows to scroll down the street to the intersection of Tujunga Avenue and Saticoy Street; 7563 Tujunga Avenue is a building with many windows, at the intersection. As of December 14, 2011, Google Maps shows the address as being occupied by a Video Hut store.)
For their attorney, the Hammontrees hired Joseph Hurley, a well-respected personal injury attorney from nearby North Hollywood. Hurley passed away in 2009, after a lengthy career in which, among other honors, he served on the Board of Governors of the California State Bar.
Jenner’s insurance agency retained the law firm of LaFollette & Johnson to defend the suit. Shortly after an answer was filed, the case was assigned to a junior attorney at the firm, Patrick Hast. Hast had just been admitted to the bar in January 1969; Hurley, by comparison, had been practicing law since 1953. (I stress to my first-year students that they, too, could be trying a case like Hammontree one year out of law school. It’s unlikely these days, but possible.)
The August 1970 trial lasted three days. Maxine and Dale Hammontree testified on their own behalf; Thomas Jenner and Dr. Benson Hyatt testified for the defense. Only three exhibits (medical and hospital bills, and a cancelled check) were admitted into evidence, all by the plaintiffs. When it came time to decide upon jury instructions, the judge rejected a plaintiffs’ instruction on strict liability, as discussed in the appellate opinion. The court also rejected a defense instruction to the effect that “The mere fact, standing alone, that he defendant had a history of an epileptic condition does not create any inference that he was negligent at the time of this accident.” Instead, on its own motion the court instructed the jury with a standard res ipsa loquitur instruction. Hurley waived argument, Hast did not, and the jury of four women and eight men retired to deliberate at 1:35 p.m. Thirty-nine minutes later, the jury came back with a unanimous defense verdict.
For insight into perhaps the most perplexing aspect of the Hammontree case—the plaintiffs’ decision to withdraw their negligence theory and proceed solely on strict liability—I contacted, and traded e-mails with Patrick Hast (who has provided me with permission to republish our communications).
Mr. Hast advised me that “Joe Hurley, a very fine lawyer and former State Bar president, no doubt felt that he would have a tough sell on a negligence count because Jenner was an honest and upstanding guy who the jury could relate to . . . . Beyond that, I think that Joe saw an opportunity to make new law. When the court declined to give strict liability instructions Joe figured on an appeal and secured his clients’ agreement to proceed as he did. I was a neophyte lawyer at the time and was startled by his decision to waive argument. Having refused to give the strict liability instructions, the Judge felt that he [had to] give the negligence instructions from an abundance of caution.”
It’s worth mentioning here that Hurley had moved for summary judgment on the issue of liability, advancing a strict-liability argument at that time, as well (the motion was denied, of course); furthermore, his complaint alleged a strict liability theory of recovery. (As I write this, I see that I did not send Christopher Robinette Hurley’s MSJ. Oops. I’ll get it posted somewhere online shortly, and reference the link in a comment below.)