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15 Oct 2018


FACTS In the spring of 2001, Kitsmiller purchased a house in VanZandt County to use as rental property. In mid-June, he hired B& H Shaw Company, Inc. (B & H) to install a replacementseptic tank in the back yard. The septic tank was located about twoor three feet from a concrete stoop at the back door of the garage.B & H mounded dirt over the septic tank and the lateral linesgoing out from it upon completion. Sometime after B & Hinstalled the septic tank, Kitsmiller smoothed out the mounds ofdirt over the septic tank and lateral lines. Kitsmiller then leasedthe property to Moore and his wife on July 27. Kitsmiller testifiedthat he viewed the back yard about a week or ten days prior toleasing the property to the Moores and stated that the dirt aroundthe septic system looked firm.
On August 7, the Moores moved in. On August 11, Moore and his wifewent into the back yard for the first time, and as he stepped offthe stoop, he was unable to see the ground and could only see hiswife and the bag of trash in his left arm. His wife testified thatthe ground looked flat. Moore testified that he had only taken afew steps off the stoop when his left leg sank into a hole, causinghim to fall forward into his wife. As he tried to steady himselfwith his right foot, it hung and then sank, causing him to fallbackward on his head and back. Moore testified that the injury tohis back required surgery and affected his ability to earn aliving.
Moore filed suit against Kitsmiller and B & H. He sought dam-ages for past and future pain and suffering, past and future mentalanguish, past and future physical impairment, and past and futureloss of earning capacity. In their answers to Moore’s suit, bothKitsmiller and B & H pleaded the affirmative defense ofcontribu- tory negligence.
During the jury trial, Moore testified Kitsmiller should havenotified him where the septic tank and lateral lines werelocated
and that the dirt should have remained mounded over the tank andlines. Martin, an on-site septic tank complaint investigator forboth the Texas Commission on Environmental Quality and Van ZandtCounty, testified that dirt should have been mounded over the sep-tic tank and lateral lines, so that when the dirt settled, therewould be no holes in the ground around the septic tank or laterallines.
The jury determined that (1) both Kitsmiller and Moore werenegligent, but B & H was not; (2) Kitsmiller was 51 percentnegli- gent and Moore was 49 percent negligent; and (3) Moore wasentitled to $210,000 in damages. On September 29, 2004, the trialcourt entered a judgment in favor of Moore and against Kitsmillerin the amount of $210,000 plus interest and costs. Applying com-parative negligence, the trial court entered a modified final judg-ment on November 1, 2004, awarding Moore $107,100 plus interest andcosts based upon Moore’s contributory negligence. Moore appealedall issues involving his contributory negligence.
DECISION The judgment of the trial court is affirmed.
OPINION Contributory negligence contemplates an injured per- son’sfailure to use ordinary care regarding his or her own safety. Thisaffirmative defense requires proof that the plaintiff was negli-gent and that the plaintiff’s negligence proximately caused his orher injuries. Negligence requires proof of proximate cause. Proxi-mate cause requires proof of both cause in fact and foreseeability.The test for cause in fact is whether the negligent act or omissionwas a substantial factor in bringing about an injury without whichthe harm would not have occurred. Foreseeability requires that aperson of ordinary intelligence should have anticipated the dangercreated by a negligent act or omission.
Because comparative responsibility involves measuring the party’scomparative fault in causing the plaintiff’s injuries, it
requires a preliminary finding that the plaintiff was in fact con-tributorily negligent. The standards and tests for determiningcontributory negligence ordinarily are the same as those for deter-mining negligence. The burden of proof on the whole case is on theplaintiff. However, the burden of proof is on the defendant toprove the defense contributory negligence by a preponderance of theevidence.
The trier of fact may draw reasonable and logical inferences fromthe evidence. It is within the province of the jury to draw onereasonable inference from the evidence although another inferencecould have been made.
Moore testified that when he stepped off the stoop into the backyard for the first time on August 11, 2001, he could only see hiswife and the plastic bag of trash he was carrying in his left hand.The jury was allowed to draw an inference from this evi- dence thatMoore was not watching where he was walking. An individual mustkeep a proper lookout where he is walking, and a jury is allowed tomake a reasonable inference that failure to do so
was the proximate cause of his injuries. It was reasonable for thejury to make an inference from Moore’s testimony that his failureto keep a proper lookout where he was walking contributed to theoccurrence.
Moore contends that the only reasonable inference the jury couldhave made was that, even if he had been watching where he waswalking, he would not have been able to avoid stepping in the holesbecause they were not visible to the naked eye. The jury could havemade that inference, but chose not to do so. Thus the jury made areasonable inference from the evidence in finding Moorecontributorily negligent.
INTERPRETATION In cases in which both the plaintiff and defendantare negligent, under comparative negligence the law apportionsdamages between the parties in proportion to the degree of fault ornegligence found against them.

If a plaintiff meets all of the requirements for a negligenceclaim, it does not necessarily mean that the plaintiff willautomatically win their lawsuit. There are certain defensesavailable to the defendant. Some of those defenses are: (1)contributory negligence; (2) pure comparative negligence; and (3)modified comparative negligence (explained on pages 152-54 ofText). These three defenses were created to protect the defendantwhen the plaintiff may have been negligent in some way. Please notethat in states that follow only "contributory negligence" it meansthat the plaintiff receives nothing if he/she is found even 1%negligent in the lawsuit (page 152).

First, please discuss whether you agree or disagreewith having these three types of defenses in a negligencelawsuit.

Next, assume for the purposes of this question thatyou do agree with having these three defenses, which of these threedefenses do you believe is the most equitable to both the plaintiffand the defendant?

Lastly, do you agree with the appellate court'sdecision affirming the lower court in Moore v. Kitsmiller (p.153-54) finding that the plaintiff was 49% negligent? Why or whynot? Please note that this case was a comparative negligence caseas the plaintiff's overall recovery was reduced from $210,000 to$107,100.

Please separate out and fully explain all of youranswers. In your third answer, you should be discussingthe specifics of the case in reaching yourconclusion.

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Jamar Ferry
Jamar FerryLv2
16 Oct 2018

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