contributory negligence doctrine in Indiana

2002To the contrary, in Bowles v. Tatom, 546 N.E.2d 1188 (Ind.1989), this Court declared: Furthermore, the nature of and procedures established by the Indiana Comparative Fault Act reveal that its primary function is to modify the common law rule of contributory negligence under which a plaintiff only slightly negligent was precluded from recovery of any damages, even as against a relatively highly culpable tortfeasor.

2002To the contrary, in Bowles v. Tatom, 546 N.E.2d 1188 (Ind.1989), this Court declared: Furthermore, the nature of and procedures established by the Indiana Comparative Fault Act reveal that its primary function is to modify the common law rule of contributory negligence under which a plaintiff only slightly negligent was precluded from recovery of any damages, even as against a relatively highly culpable tortfeasor.

2023For example, the doctrine of contributory negligence, which “barred recovery on a plaintiff’s negligence claim if the plaintiff was even slightly at fault,” was substantially revised, so that a plaintiff would be barred recovery only if their “own fault was greater than fifty percent.” Id.

2019Murray et al. v. Indianapolis Public Sch. et. al., 116 N.E.3d 525 , 535 (Ind. Ct. App. 2018).

2017Hill, 54 N.E.3d at 406 .

2017Hill, 54 N.E.3d at 406 .

2010Booker, 639 N.E.2d at 361 . 4 .

2005For example, in Brown v. Slents, 237 Ind. 497 , 147 N.E.2d 289 (Ind.1958), a father brought a lawsuit for loss of services and medical expenses he paid on behalf of his minor son for injuries the son sustained as a result of an automobile collision.

2005Pantaleo v. Our Lady of the Resurrection Medical Center, 297 Ill.App.3d 266 , 231 Ill.

2005Pantaleo v. Our Lady of the Resurrection Medical Center, 297 Ill.App.3d 266 , 231 Ill.

2000Id.

2000Id.

1993Two years later, our supreme court in Koske v. Townsend Engineering Co. (1990), Ind. 551 N.E.2d 437 , expressly stated that to “[r]esort to an objective standard to determine what a product user should have seen and known about a product danger is further inappropriate because such [an inquiry] is akin to the contributory negligence defense, which would otherwise not be available in strict liability in tort.” Id. at 441 .

1993Two years later, our supreme court in Koske v. Townsend Engineering Co. (1990), Ind. 551 N.E.2d 437 , expressly stated that to “[r]esort to an objective standard to determine what a product user should have seen and known about a product danger is further inappropriate because such [an inquiry] is akin to the contributory negligence defense, which would otherwise not be available in strict liability in tort.” Id. at 441 .

1990This district found reversible error in the giving of a contributory negligence instruction because of an absence of evidence indicating the plaintiff “had any basis un *1080 der an objective standard as a reasonable person to know of the lack of warning signs, the missing stop sign, or the dip in the road.” 533 N.E.2d at 605 .

1990Hoffman, 448 N.E.2d at 282 ; Perfection Paint & Color Co. v. Konduris (1970), 147 Ind. App. 106 , 258 N.E.2d 681 .

1990Hoffman, 448 N.E.2d at 282 ; Perfection Paint & Color Co. v. Konduris (1970), 147 Ind. App. 106 , 258 N.E.2d 681 .

1990Hoffman, 448 N.E.2d at 282 ; Perfection Paint & Color Co. v. Konduris (1970), 147 Ind. App. 106 , 258 N.E.2d 681 .

1982Pardue v. Seven-Up Bottling Co. of Indiana, (1980) Ind.App., 407 N.E.2d 1154 .

1980In Frankfort v. Owens, (1976) Ind.App., 358 N.E.2d 184, 195 , the court quotes this passage from Devine v. Grace Construction and Supply Company, (1962) 243 Ind. 98 , 181 N.E.2d 862 , 866: “Generally, ‘it is negligence to fail to see or hear that which you could see or hear, by the exercise of ordinary and reasonable care, and for that reason the law attaches the same legal consequences for not seeing or hearing as it does if in fact you did see and hear.’ ” (citations omitted) We agree with this statement of the law but hold the exercise of ordinary and reasonable care does not require a pref

1980In Frankfort v. Owens, (1976) Ind.App., 358 N.E.2d 184, 195 , the court quotes this passage from Devine v. Grace Construction and Supply Company, (1962) 243 Ind. 98 , 181 N.E.2d 862 , 866: “Generally, ‘it is negligence to fail to see or hear that which you could see or hear, by the exercise of ordinary and reasonable care, and for that reason the law attaches the same legal consequences for not seeing or hearing as it does if in fact you did see and hear.’ ” (citations omitted) We agree with this statement of the law but hold the exercise of ordinary and reasonable care does not require a pref

1980In Frankfort v. Owens, (1976) Ind.App., 358 N.E.2d 184, 195 , the court quotes this passage from Devine v. Grace Construction and Supply Company, (1962) 243 Ind. 98 , 181 N.E.2d 862 , 866: “Generally, ‘it is negligence to fail to see or hear that which you could see or hear, by the exercise of ordinary and reasonable care, and for that reason the law attaches the same legal consequences for not seeing or hearing as it does if in fact you did see and hear.’ ” (citations omitted) We agree with this statement of the law but hold the exercise of ordinary and reasonable care does not require a pref

1978The court appears to have treated the incurred risk in the nature of an affirmative defense to defendant’s negligence, noting that “in some of the more recent cases it has been called part of the doctrine of contributory negligence.” 46 N.E.2d at 706 .

1969“If you find that Plaintiff’s decedent was guilty of contributory negligence, your verdict should be for the defendants.” The cases of Keck v. Pozorski, 135 Ind. App. 192 , 191 N. E. 2d 325 (1963), and Bain v. Mattmiller, 213 Ind. 549 , 13 N. E. 2d 712 (1938), both hold that the inclusion of the language “however slight” on a contributory negligence instruction is not erroneous.

1969“If you find that Plaintiff’s decedent was guilty of contributory negligence, your verdict should be for the defendants.” The cases of Keck v. Pozorski, 135 Ind. App. 192 , 191 N. E. 2d 325 (1963), and Bain v. Mattmiller, 213 Ind. 549 , 13 N. E. 2d 712 (1938), both hold that the inclusion of the language “however slight” on a contributory negligence instruction is not erroneous.