There is no discernible reluctance by courts to direct verdicts on the issue of the plaintiff's carelessness in suits by invitees against proprietors of business premises. The writer has had occasion to examine a representative group of about two hundred cases in this area where contributory negligence was seriously in issue. In more than a third of these disputes the appellate courts had either approved the trial judge's action in directing a defendant verdict, or had reversed a judgment for plaintiff because the trial court had allowed the controversy to reach the jury on the contributory negligence issue. I have already ventured my suggestion as to why the courts assume rigorous control in these cases. Issues of duty, negligence, and assumed risk have been too closely intervolved here to justify the simple expedient of a homely adjustment of damages. I strongly suspect that the same would hold true in suits against manufacturers by injured consumers. Whenever misuse of the product by the claimant is set up as a defense, the problem presented is often a difficult one requiring a policy determination as to the adaptability of the product to a market of users some of whom may be inept, incautious, or ignorant. Fortunately, the rejection-, of negligence as the basis of recovery in products liability cases should remove any temptation to mitigate damages because of customer carelessness.
Wex S. Malone,
21 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol21/iss6/6