Stilson’s car struck pedestrian Friedstein while she was crossing a surface street at or near a crosswalk. Friedstein sued for Stilson negligence, and Stilson asserted a comparative fault defense. The jury awarded Friedstein $4 million in damages and allocated 75% of fault to Stilson and 25% to Friedstein. Friedstein appealed, seeking to increase the damage award on grounds: (1) Stilson should not have been permitted to present a comparative fault defense and (2) the trial court should have granted her motion for judgment notwithstanding the verdict because no substantial evidence supported the jury’s allocation of 25% fault to her.
Stilson retained Horvitz & Levy to respond to Friedstein’s appeal. The Court of Appeal agreed with Horvitz & Levy’s arguments and affirmed the judgment. The court first rejected Friedstein’s argument that the trial court abused its discretion in allowing defendant to argue comparative fault after she failed to disclose relevant evidence in certain interrogatory responses. The court reasoned that the trial court acted within its discretion by precluding Stilson from presenting undisclosed evidence of Friedstein’s negligence (e.g., evidence that she failed to press a button to activate flashing crosswalk lights) but allowing Stilson to argue comparative fault based on facts known to both parties—regardless whether those facts were listed in Stilson’s interrogatory responses. Second, the court held that substantial evidence supported the jury’s fault allocation, including evidence that Stilson failed to notice Friedstein until she hit her even though Stilson was driving no faster than 25 miles per hour, was unimpaired, undistracted, and watching the road in front of her. The court agreed that, based on this evidence, the jury could reasonably infer that Stilson would have seen Friedstein but for some negligent conduct by Friedstein. Additional evidence (including light rain, Friedstein’s lack of an umbrella, and her pending food delivery at home) supported an implied finding that Friedstein was in a hurry and either heedlessly rushed into the crosswalk without checking for traffic or was crossing the intersection diagonally outside the crosswalk before Stilson struck her.
Friedstein v. Stilson 
