Brief Fact Summary. Plaintiff, a longshoreman, was injured while he unloaded fishmeal sacks, which belonged to the United States Lines Co. (Defendant). Plaintiff knew the sacks were stacked in a dangerous manner, but he still attempted to unload them. The trial court found that both parties were negligent, therefore, Plaintiff was barred from recovery.
Synopsis of Rule of Law. The burden of proving all aspects of the affirmative defense of contributory negligence, including causation, rests on the defendant, unless the elements of the defense may be inferred from the plaintiff’s evidence.
Issue. Does Defendant bear the burden of proof in establishing Plaintiff’s contributory negligence?
Held. Yes. Judgment reversed. Case remanded with directions for a new trial on the limited issue of Plaintiff’s contributory negligence.
* Contributory negligence is conduct on the part of Plaintiff, which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of Defendant.
* Plaintiff must exercise the amount of care that would be exercised by a person of ordinary prudence in the same circumstances. In some instances, Plaintiff may find himself powerless to abandon the task assigned to him.
* Custom alone does not create the standard of proper diligence. However, evidence of custom is ordinarily admissible for its bearing upon contributory negligence.
* In this case, the trial court determined that Plaintiff’s failure to report the condition was a proximate cause of his injuries, because if he had reported the condition it could have been corrected. The burden of proving all aspects of the affirmative defense of contributory negligence, including causation, rests on Defendant, unless the elements of the defense may be inferred from Plaintiff’s evidence. The burden requires more than conjecture or speculation.
* Plaintiff did not create or maintain the dangerous conditions of storage. Defendant negligently maintained and operated its warehouse. Defendant had control of its cargo and directed its disposition. Defendant alone created the risk.
* Plaintiff was not negligent in his operation of the forklift or in his breaking down the particular stack of fishmeal. According to the district court, Plaintiff’s negligence consisted solely in his failure to report the dangerous condition to his own supervisor. Thus, there must be something in the record showing that Plaintiff’s failure to report was a substantial factor in bringing about his harm. The testimony does not show that the stacks would have been made safer. The record provides no clue as to what, if anything, could have been done to break down the stacks of fishmeal more safely. Other than the fact that there were “men there to take care of the situation,” no evidence at all was offered.
* The record does not establish that Plaintiff’s failure to report the dangerous condition was a substantial factor in bringing about the fall of the sacks. Defendant did not meet its burden of proving that Plaintiff’s contributory negligence was the proximate cause of his injuries.
Discussion. Contributory negligence is an affirmative defense. Defendant has the burden of showing that Plaintiff’s failure to report was a substantial factor in bringing about Plaintiff’s harm.