Marment v. Castlewood County Club

In Marment v. Castlewood County Club (1973) 30 Cal. App. 3d 483, the plaintiffs sued for damages resulting from diversion of surface waters. There was an evidentiary conflict as to whether the defendants' actions caused the damages. The trial court "instructed at length upon negligence [and contributory negligence] as it is usually defined in personal injury actions." ( Id. at p. 485.) The jury returned a defense verdict and, as in this case, utilized a general verdict, thereby rendering it impossible for a reviewing court to determine the basis of the jury's decision. The appellate court held the utilized instructions were legally deficient because Keys makes clear reasonableness of conduct, not negligence, is the question. It explained: "The distinction is emphasized in Keys by language requiring consideration of such factors as the amount of harm caused, the foreseeability of such harm, the purpose or motive of the diverter and a comparative weighing of the utility of the diversion against the gravity of the harm caused by it. These elements are not included or suggested in the trial court's instructions defining the nature and effect of negligence and contributory negligence in the usual personal injury context." (Ibid.)