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Plaintiff’s Negligence

The duty of reasonable care is imposed on both the landowner and the entrant[i].  Along with the duty of a business proprietor to exercise reasonable care in the face of foreseeable dangers to his/her patrons, those patrons have a duty to exercise reasonable care to avoid those injuries[ii].

A business invitee is required to use in the interest of his/her own safety that degree of care and prudence which a person of ordinary intelligence would exercise under the same or similar circumstance[iii].

A shopper has the duty of exercising reasonable care for his/her own safety and for the safety of those under his/her care and control[iv].  Landowners are entitled to expect that their invitees will exercise due care[v].

Comparative negligence statutes bar plaintiffs from recovery if their actions were a greater cause, more than 50 percent, of their injuries than any acts of defendant[vi].  To bar recovery, a plaintiff’s conduct must be a proximate cause of the happening of the plaintiff’s own injury in any degree, however slight[vii].

A plaintiff can be found to be comparatively negligent when his/her conduct falls below the standard to which s/he should conform for his/her own protection[viii].  Further, the doctrine of contributory negligence will preclude a defendant’s liability if the visitor actually knew of the unsafe condition or if a hazard should have been obvious to a reasonable person[ix].

A property owner or occupier is not liable for a plaintiff’s injuries caused by a dangerous condition if the plaintiff had equal or superior knowledge of the danger and failed to exercise ordinary care to avoid the danger[x].  Thus, to establish liability for a premises defect, a licensee must prove that s/he did not actually know of the condition[xi].

Plaintiff is charged with knowledge of those defects which s/he had actually observed or which were so transparently obvious that his/her failure to observe them cannot reasonably be excused[xii].

What is ordinary care depends upon the time, place and person.  A disability does not relieve a plaintiff of the duty to exercise ordinary care for her own safety[xiii].  An ordinarily robust person may in perfect safety get into situations which would be dangerous to a child or to a person of great age or feebleness[xiv].  A plaintiff must be charged with knowledge of his/her physical condition.

A disabled or handicapped person, whether blind, deaf, aged or lame, will be held to exercise that degree of care which an ordinary prudent person with the same condition would have exercised under similar circumstances.

The amount of care required to discharge a duty owed to a child of tender years is necessarily greater than that required to discharge a duty to an adult[xv].  Children of tender years and young persons generally are entitled to a degree of care proportioned to their inability to foresee and avoid the perils that they may encounter.

Circumstances may exist under which forgetfulness or inattention to a known danger may be consistent with the exercise of ordinary care, as where conditions arise suddenly which are calculated to divert one’s attention momentarily from the danger[xvi].

A plaintiff is not bound to the same degree of care in apprehending danger in moments of stress or when her attention has been necessarily diverted[xvii].

Similarly, one who enters darkness realizing his /her difficulty in seeing, assumes the risk of unseen hazards that could be seen with the aid of light[xviii].  One who walks ahead without seeing what normally should be seen or without looking assumes the risk of unseen peril.

A plaintiff has no reason to expect and no duty to take extraordinary precautions against a danger unknown and not obvious to him and of which s/he had not been warned[xix].  When a plaintiff does not discover and avoid an obvious defect, that plaintiff will usually be considered to have been contributorily negligent as a matter of law.

However, where there is some fact, condition, or circumstance which would or might divert the attention of an ordinarily prudent person from discovering or seeing an existing dangerous condition, the plaintiff will not be contributorily negligent.  But, the distraction doctrine does not apply where a plaintiff has actual knowledge of a hazard before the alleged distraction occurs[xx].

[i] Louis v. Louis, 636 N.W.2d 314 (Minn. 2001).

[ii] Kaechele v. Kenyon Oil Co., 2000 ME 39, P19 (Me. 2000).

[iii] Robinson v. Ratliff, 757 So. 2d 1098 (Miss. Ct. App. 2000).

[iv] Castille v. Wal-Mart Stores, Inc., 731 So. 2d 904 (La.App. 5 Cir. Mar. 30, 1999).

[v] Huxoll v. McAlister’s Body & Frame, Inc., 129 S.W.3d 33 (Mo. Ct. App. 2004).

[vi] Shimer v. Bowling Green State Univ., 96 Ohio Misc. 2d 12 (Ohio Ct. Cl. 1999).

[vii] Argo v. Goodstein, 438 Pa. 468 (Pa. 1970).

[viii] Castille v. Wal-Mart Stores, Inc., 731 So. 2d 904 (La.App. 5 Cir. Mar. 30, 1999).

[ix] Allsup v. McVille, Inc., 139 N.C. App. 415 (N.C. Ct. App. 2000).

[x] Cook v. Micro Craft, Inc., 262 Ga. App. 434 (Ga. Ct. App. 2003).

[xi] County of Cameron v. Brown, 80 S.W.3d 549 (Tex. 2002).

[xii] Lake v. Atlanta Landmarks, 257 Ga. App. 195 (Ga. Ct. App. 2002).

[xiii] Prostran v. City of Chicago, 349 Ill. App. 3d 81 (Ill. App. Ct. 1st Dist. 2004).

[xiv] Ury v. Fredkin’s Markets, Inc., 26 Cal. App. 2d 501 (Cal. App. 1938).

[xv] Stinespring v. Natorp Garden Stores, 127 Ohio App. 3d 213 (Ohio Ct. App., Hamilton County 1998).

[xvi] Swinson v. Lejeune Motor Co., 147 N.C. App. 610 (N.C. Ct. App. 2001).

[xvii] Hamilton v. Ky. Fried Chicken of Valdosta, 248 Ga. App. 245 (Ga. Ct. App. 2001).

[xviii] Whelan v. Van Natta, 382 S.W.2d 205 (Ky. 1964).

[xix] Happy v. Walz, 358 Mo. 56 (Mo. 1948).

[xx] Ponder v. Brooks, 256 Ga. App. 596 (Ga. Ct. App. 2002).

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