Cesar Rodriguez pulled away from a Long Beach Police Department officer while the officer attempted to arrest him on a Metro station platform, causing both to fall and causing Rodriguez to be struck by an oncoming train. Rodriguez’s mother filed a wrongful death lawsuit against the officer and the department. At trial, every percipient witness testified that Rodriguez was attempting to escape. Even so, the trial court refused to instruct the jury that Rodriguez was negligent per se if the jury found he was attempting to escape. The jury found for Rodriguez, allocated no comparative fault to him, and awarded $12.2 million.
Defendants retained Horvitz & Levy to represent them on appeal. Horvitz & Levy persuaded the Court of Appeal to reverse based on instructional error. At oral argument, plaintiffs’ counsel conceded that the trial court should have instructed the jury on negligence per se, but argued that the error was not prejudicial. The Court of Appeal found the instructional error prejudicial because it left the jury uninformed about the relevance of Rodriguez’s attempt to escape. For guidance on remand, the court took exception to plaintiffs’ counsel’s misconduct during closing argument, including his comparison of this case to George Floyd’s murder and his violation of an in limine ruling excluding arguments about alleged excessive force.
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