# Barton v. Owen

> California Court of Appeal · July 1, 1977 · 71 Cal. App. 3d 484

URL: https://www.frixlaw.com/law-library/cases/9724187

## Case

- **Full name:** JOHN J. BARTON, Plaintiff and Appellant, v. DAVID CHARLES OWEN Et Al., Defendants and Respondents
- **Court:** California Court of Appeal
- **Decided:** July 1, 1977
- **Citations:** 71 Cal. App. 3d 484; 139 Cal. Rptr. 494; 71 Cal. App. 2d 484; 1977 Cal. App. LEXIS 1631
- **Precedential status:** Published
- **Opinion:** Concurrence by Jefferson
- **Judges:** Kingsley, Jefferson
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9724187

## Opinion text

JEFFERSON (Bernard), J.
I concur in the result reached by the majority. I agree that the judgment in favor of defendant Wasserman should be affirmed on the ground that the record does not establish any negligence on the part of defendant Wasserman. I agree also that the judgment in favor of defendant Owen should be reversed because of the trial court’s giving of BAJI instruction No. 6.28, relating to a patient’s duty to follow his doctor’s instructions and making a negligent failure of the patient to do so a defense to liability on the part of a doctor for malpractice. Since there was no evidence of any negligent failure of the plaintiff to follow instructions which constituted a proximate cause of plaintiff’s injury, it was prejudicial error for the trial court to give BAJI instruction No. 6.28.
Since the two matters referred to justify the majority’s affirmance of the judgment in favor of defendant Wasserman and reversal of the judgment in favor of defendant Owen, respectively, I do not reach the other contentions of appellant discussed by the majority. Because the case must be retried with resnect to defendant Owen, and we do not know what evidence will be presented on a retrial, I deem the majority’s discussion of other points of alleged error raised by appellant to be unnecessary, unwarranted and unwise dicta.
Appellant’s petition for a hearing by the Supreme Court was denied August 25, 1977.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9724187. Public record. Not legal advice.