Gyerman v. United States Lines Co.

7 Cal. 3d 488, 102 Cal. Rptr. 795, 498 P.2d 1043 (1972)



The doctrine of "law of the case" deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case. But, the discussion or determination of a point not necessary to the disposition of a question that is decisive of the appeal is generally recorded as obiter dictum and not as the law of the case. It is fundamental that the point relied upon as law of the case must have been necessarily involved in the case. 


Plaintiff longshoreman, employed by a stevedoring company, was injured by falling sacks of fishmeal while operating a forklift in defendant shipping company's warehouse. Plaintiff sought damages for personal injuries caused by an accident due to unsafe working conditions at defendant warehouse lessee's place of business. At trial, the plaintiff testified that when he first arrived at the warehouse, plaintiff noticed that some of the sacks he was to move with the forklift were stacked in a manner he considered hazardous. He testified that he called the condition to the attention of defendant's chief clerk who said there was nothing he could do about it. The trial court held that the warehouse lessee was not liable for plaintiff's injuries caused by an accident due to unsafe working conditions at the warehouse because even though defendant was negligent, plaintiff's contributory negligence was the proximate cause of his injuries.


Should the defendant be liable for damages?




The court remanded the case for a new trial on plaintiff's contributory negligence and damages. The court further held that the trial judge did not ignore the doctrine of law of the case. The decision on the first appeal left the issue of contributory negligence for the determination of the trier of fact upon retrial. The court held that defendant was not estopped from asserting plaintiff's contributory negligence because plaintiff's contention that defendant's employee misled plaintiff about the dangerous condition was a question of fact that could not be raised for the first time on appeal. The court held that defendant failed to prove plaintiff's contributory negligence because, although there was sufficient support for finding that plaintiff failed to use ordinary care, the record did not establish that plaintiff's failure was a substantial factor in bringing about the accident.

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