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Carter v. Indianapolis Power & Light Co.11/10/2005
r the determination of "whether a reasonable man would have so acted under similar circumstances" and is concerned with whether the acceptance of the risk was reasonable and justified in light of the possible benefit versus the risk. Contributory negligence also involves conduct that is "careless" and presupposes a duty and breach thereof, but serves as an affirmative defense to prevent recovery by the plaintiff.
By contrast, incurred risk demands a subjective analysis with inquiry into the particular actor's knowledge, is concerned with the voluntariness of a risk, and is blind as to reasonableness of risk acceptance. Incurred risk also involves a mental state of "venturousness" and has been described as negating a duty and therefore precluding negligence. Generally, the existence of incurred risk and contributory negligence are questions of fact for the jury. The definition of incurred risk includes the proposition that knowledge of a risk may be imputed where such a risk would have been "readily discern ble by a reasonable and prudent man under like or similar circumstances."
Our court has discussed the differences between the two theories, but has concluded that the "importance of reconciling the two definitions becomes apparent only in those situations where incurred risk serves as a defense while contributory negligence does not." "In a negligence action, both defenses are available to a defendant, and the failure to distinguish between the two is without substantive significance."
Id. at 200-01 (citations omitted). We conclude that the County is entitled to summary judgment under either theory.
Any contributory negligence on Jacobs's part, however slight, will bar Carter's claim against the County, provided that Jacobs's negligence proximately contributed to his injuries. St. John Town Bd. v. Lambert, 725 N.E.2d 507, 516 (Ind. Ct. App. 2000). Jacobs's contributory negligence will bar all recovery regardless of any negligence on the County's part. Id.
Contributory negligence is conduct on the part of the plaintiff, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. A plaintiff must exercise that degree of care which an ordinarily reasonable person would exercise in like or similar circumstances.
Peavler v. Bd. of Comm'rs of Marion County, 557 N.E.2d 1077, 1080 (Ind. Ct. App. 1990) (citations omitted), trans. denied. " he existence of contributory negligence is usually a question of fact for the jury unless the facts are undisputed and only a single inference can be drawn therefrom." St. John Town Bd., 725 N.E.2d at 516.
Our supreme court has stated that automobile passengers are "under the duty to use reasonable care to avoid injuring themselves." Stephenson v. Ledbetter, 596 N.E.2d 1369, 1372 (Ind. 1992); see also Burrell v. Riggs, 557 N.E.2d 698, 700 (Ind. Ct. App. 1990) ("A passenger in an automobile must exercise for her own protection the degree of care an ordinarily reasonable person would exercise in like or similar circumstances."), trans. denied (1991); Colaw v. Nicholson, 450 N.E.2d 1023, 1026 (Ind. Ct. App. 1983) ("A passenger in an automobile is bound to use the reasonable and ordinary care of a prudent person under the circumstances to avoid injury to himself."). "Simply because a person is a passenger does not mean he is absolved from all personal responsibility for his own safety." Stephenson, 596 N.E.2d at 1372. In Burrell, a passenger was contributorily negligent in choosing to ride with a driver who she knew was extremely tired. Burrell, 557 N.E.2d at 701. In Peavler, the intoxicated passenger was contributo
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