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3.9-20 Plaintiff's Duty to
Use Faculties
Revised to January 1, 2008
The
defendant has raised a special defense and claims
that the plaintiff did not make a proper use of
(his/her) senses or faculties to avoid the injury,
did not keep a proper lookout, and was not
watchful. Under our law, the plaintiff is presumed
to be in the exercise of due care; and if the
defendant makes a claim to the contrary, the burden
is on the defendant to prove it.
The
defense is that the plaintiff failed to use due care
to look out for (his/her) own safety. That means
that the plaintiff was not acting as a reasonably
prudent or careful person would have acted in view
of the circumstances that you find existed at the
time. If you find that the defendant has proved
that the plaintiff was not using reasonable care to
discover defects or dangerous conditions or to avoid
such defects as (he/she) ought to have known about
or ought to have been able to discover, then the
defendant has proved the defense of contributory
negligence and you must consider this negligence of
the plaintiff in relation to that of the defendant.
Authority
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