Ordinarily, questions of negligence and contributory negligence must be decided by the trier of fact. A party asserting the defense of contributory negligence is required to establish, by a preponderance of the evidence, that the plaintiff failed to exercise reasonable care. Only in the exceptional case is evidence so clear and unambiguous that contributory negligence should be found as a matter of law. The issue of contributory negligence should not be submitted to the jury, however, where the evidence, taken in the light most favorable to the plaintiff, establishes contributory negligence so clearly that no other inference can reasonably be drawn.
Plaintiff, who was legally blind, testified that he could see only approximately six to eight feet in front of him. Notwithstanding his handicap, plaintiff did not use a cane or seeing eye dog in pursuing his daily activities. Plaintiff testified that he had walked to the retail establishment on three or four previous occasions and knew the lay out. On the day of his injury, a bush had been removed from the edge of the elevated walkway. As he was walking, someone called his name. He turned his head, but continued to walk forward to where he thought the bush would be and fell. Plaintiff filed for damages. The trial court granted summary judgment for defendants, building owners, property manager, and proprietor and concluded that plaintiff was contributorily negligent. On appeal, the court affirmed.
Did a genuine issue of material fact exist as to whether plaintiff exercised reasonable care therefore making the entry of summary judgment erroneous?
The defense of contributory negligence was established as a matter of law based on plaintiff's testimony. The court reasoned that plaintiff was required to use due care under the circumstances and due care included reasonable efforts to compensate for his handicap. In this case, plaintiff admitted that he was alone, he used no cane or seeing eye dog as an aid, and he looked away at the critical moment when he could have seen the hazard.