Can a plaintiff's comparative negligence defense be asserted?

The plaintiff filed a motion for new trial, asserting the district court should not have instructed the jury that it could consider the plaintiff's comparative negligence. ( Spence v. Aspen Skiing Co., supra, 820 F.Supp. 542.) The district court concluded (1) the language in Colorado's comparative negligence statute was inconclusive on the issue, (2) no Colorado state court decision addressed the issue, and (3) it was persuaded by cases from other jurisdictions that held the patient's negligence could not be asserted as a defense where the patient's conduct provided the occasion for medical attention, care or treatment. ( Id. at pp. 543544.) The court stated: "It would be inconsistent with the reasonable and normal expectations of both parties for the court to excuse or reduce the provider's liability simply because it was the patient's

[233 Cal.App.4th 631]