In The Spring Of 2001 Kits Miller Purchased A House In Van Zandt County To Use As Re 865976

In the spring of 2001, Kits-miller purchased a house in Van Zandt County to use as rental property. In mid-June, he hired B & H Shaw Company, Inc. (“B & H”) to install a replacement septic tank in the back yard. The septic tank was located about two or three feet from a concrete stoop at the back door of the garage. B & H mounded dirt over the septic tank and the lateral lines going out from it upon completion. Sometime after B & H installed the septic tank, Kits-miller smoothed out the mounds of dirt over the septic tank and lateral lines using the box blade on his tractor. Kits-miller then leased the property to Moore and his wife on July 27. Kits-miller testified that he viewed the back yard about a week or ten days prior to leasing the property to the Moors and stated that the dirt around the septic system looked firm

On August 7, the Moors moved in. On August 11, Moore and his wife went into the back yard for the first time and as he stepped off the stoop, he was unable to see the ground and could only see his wife and the bag of trash in his left arm. His wife testified that the ground looked flat. Moore testified that he had only taken a few steps off the stoop when his left leg sank into a hole, causing him to fall forward into his wife. As he tried to steady himself with his right foot, it hung and then sank, causing him to fall backward on his head and back. Moore testified that the injury to his back required surgery and affected his ability to earn a living.

Moore fi led suit against Kits-miller and B & H. He sought damages for past and future pain and suffering, past and future mental anguish, past and future physical impairment, and past and future loss of earning capacity. In their answers to Moore’s suit, both Kits miller and B & H pleaded the affirmative defense of contributory negligence. During the jury trial, Moore testified Kits miller should have notified him where the septic tank and lateral lines were located and that the dirt should have remained mounded over the tank and lines. Martin, an on-site septic tank complaint investigator for both the Texas Commission on Environmental Quality and Van Zandt County, testified that dirt should have been mounded over the septic tank and lateral lines, so that when the dirt settled, there would be no holes in the ground around the septic tank or lateral lines. The jury determined that (1) both Kits miller and Moore were negligent, but B & H was not; (2) Kits miller was 51 percent negligent and Moore was 49 percent negligent; and (3) Moore was entitled to $210,000.00 in damages. On September 29, 2004, the trial court entered a judgment in favor of Moore and against Kits miller in the amount of $210,000.00 plus interest and costs. The trial court entered a modified final judgment on November 1, 2004, awarding Moore $107,100.00 plus interest and costs based upon Moore’s contributory negligence. Moore appealed all issues involving his contributory negligence.

DECISION The judgment of the trial court is affirmed.

OPINION Contributory negligence contemplates an injured person’s failure to use ordinary care regarding his or her own safety. This affirmative defense requires proof that the plaintiff was negligent and that the plaintiff’s negligence proximately caused his or her injuries. Negligence requires proof of proximate cause. Proximate cause requires proof of both cause in fact and foreseeability. The test for cause in fact is whether the negligent act or omission was a substantial factor in bringing about an injury without which the harm would not have occurred. Foreseeability requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission.

Because comparative responsibility involves measuring the party’s comparative fault in causing the plaintiff’s injuries, it requires a preliminary finding that the plaintiff was in fact contributorily negligent. The standards and tests for determining contributory negligence ordinarily are the same as those for determining negligence. The burden of proof on the whole case is on the plaintiff. However, the burden of proof is on the defendant to prove the defense contributory negligence by a preponderance of the evidence

The trier of fact may draw reasonable and logical inferences from the evidence. It is within the province of the jury to draw one reasonable inference from the evidence although another inference could have been made

Moore testified that when he stepped off the stoop into the back yard for the first time on August 11, 2001, he could only see his wife and the plastic bag of trash he was carrying in his left hand. The jury was allowed to draw an inference from this evidence that Moore was not watching where he was walking. An individual must keep a proper lookout where he is walking, and a jury is allowed to make a reasonable inference that failure to do so was the proximate cause of his injuries. It was reasonable for the jury to make an inference from Moore’s testimony that his failure to keep a proper lookout where he was walking contributed to the occurrence

Moore contends that the only reasonable inference the jury could have made was that, even if he had been watching where he was walking, he would not have been able to avoid stepping in the holes because they were not visible to the naked eye. The jury could have made that inference, but chose not to do so. Thus the jury made a reasonable inference from the evidence in finding Moore contributory negligent

INTERPRETATION Where both the plaintiff and defendant are negligent, under comparative negligence the law apportions damages between the parties in proportion to the degree of fault or negligence found against them.

CRITICAL THINKING QUESTION Is it fair that the plaintiff recovers damages despite being contributory negligent? Explain