Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
apply. But as discussed in previous notes, see supra Chapter 4, Section A, courts sometimes have
appeared to adjust the negligence standard when confronted with particularly sympathetic
categories of plaintiffs. Consider, for example, plaintiffs who are mentally ill, or who have some
other impairment that significantly affects their mental functioning. Where the plaintiff was
completely incapable of apprehending the risk that the plaintiff’s conduct created, courts have
typically treated contributory negligence arguments as unavailing. And when confronted with
plaintiffs with greater but still diminished ability to apprehend dangers, some jurisdictions
expressly allow juries to take into account the plaintiff’s actual mental capacities. The North
Carolina Court of Appeals follows this approach: “where an injured plaintiff suffers from
diminished mental capacity not amounting to insanity or total incompetence, it is a question for
the trier of fact as to whether he exercised the required degree of care for his own safety, and the
effect of his diminished mental faculties and capabilities may be taken into account in determining
his ability to perceive and avoid a particular risk of harm”; “such a person should be held only to
the exercise of such care as he was capable of exercising, i.e., the standard of care of a person of
like mental capacity under similar circumstances.” Stacy v. Jedco Const., Inc., 457 S.E.2d 875,
879 (N.C. Ct. App. 1995). Courts appear more likely to take this view when the defendant has
assumed some kind of caretaking or custodial role vis-à-vis the plaintiff. See, e.g., Birkner v. Salt
Lake Cty., 771 P.2d 1053 (Utah 1989) (involving a former patient in a county mental health
facility who alleged that the therapist at that facility sexually abused her). But even where this is
true, courts have accorded less sympathetic treatment to plaintiffs who had notice of their
condition and had some power to reduce the risks they posed to themselves. See, e.g., Jankee v.
Clark Cty., 612 N.W.2d 297, 301-04 (Wis. 2000) (applying an objective “reasonable person”
standard to a plaintiff patient who failed to take prescribed medication to address his manic
depressive illness and was injured after attempting to escape from a psychiatric facility). Should
tort law apply the same standard of care to plaintiffs and defendants? If you think different
standards are appropriate, how might you articulate them?
5. Contributory negligence in the jury box. Even with puzzling efforts to establish
ameliorative exceptions like last clear chance, contributory negligence seemed to be a ruthless,
cut-and-dry rule that denied negligent plaintiffs any and all relief. But the rule often produced
different results in practice. By 1933, one observer noted that while the rule remained on the
books in all states, there was more to the story:
Liability in Torts is frequently more sentimental than rational. If anyone be shocked
at this thesis let him cast a critical eye at what has happened to the doctrine of
contributory negligence. This tall timber in the legal jungle has been whittled down
to toothpick size by the sympathetic sabotage of juries, whose inability to perceive
contributory negligence in suits against certain defendants is notorious; by the
emotional antagonism of judges who have placed constrictions on the doctrine
which suggest the more evident purpose to destroy it entirely, rather than to attempt
any logical limitation; by the popular prejudices of legislators who have pulled the
teeth of the common-law dogma or damned it outright. Little remains to be written
about contributory negligence save its obituary.
Charles L. B. Lowndes, Contributory Negligence, 22. GEO. L.J. 674 (1933). Two decades later,
Prosser wrote similarly that the remedy for the defects of the contributory negligence rule “has
been in the hands of the jury”:
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