Without ruling on the issue of who was negligent, the 4th Circuit said a jury could find the family was not
contributorily negligent but reasonably relied on its trusted financial analyst, much as clients depend on the advice of their respected attorneys.
It seems clear, for example, that an adult plaintiff would not be found
contributorily negligent in attempting to save a life, say, by running in front of a car to rescue a toddler, whereas one who ran in front of a car to fetch a ball would.
The operative language of CPLR 1601(1), which is the subject of this article, is that a defendant's liability "for non-economic loss shall not exceed that defendant's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss." (56) Is the phrase "each person causing or contributing to the total liability" (57) intended to apply to all parties, including
contributorily negligent plaintiffs, or only to liable defendants that are otherwise jointly and severally responsible for the judgment?
Deiss, an emergency room malpractice case, the Montana Supreme Court considered a defendant's claim that a young girl with a history of asthma was
contributorily negligent for riding a horse while experiencing an asthma attack.
Since the plaintiff was not warned of the stroke risk of oral contraceptives or the heightened risk in smokers, it is unlikely she will be found to be
contributorily negligent. A victim is required to mitigate his or her losses, and the medical noncompliance in this case will likely lead to a reduction in her award.
No matter how often I explained this, she simply refused to accept the law or the possibility that a jury would find her
contributorily negligent.
Whether or not the patient was
contributorily negligent in causing his injuries was inadmissible in evidence in this medical malpractice suit.
This does not mean that an owner-passenger cannot be
contributorily negligent. Rather, we are simply dispensing with the presumption that an injured owner-passenger is
contributorily negligent because the driver is negligent.
Patient did not ask about side effects and therefore was
contributorily negligent.
Again, unlike the majority, the dissenting judge had serious reservations as to whether the patient was, in fact,
contributorily negligent, noting that during the course of her treatment at the hospital her husband, who had inflicted bodily harm upon her, was never too far from her.
So, try using it when it is a crystal clear, res ipsa loquitur situation that the injured claimant was
contributorily negligent. The courts say that it's whatever the jury decides.
At trial, the judge found his employer
contributorily negligent and liable for thirty percent of his damages.
