FACTS In the spring of 2001, Kitsmiller purchased a house in Van Zandt County to use as rental property. In mid-June, he hired B & H Shaw Company, Inc. (B & H) to install a replacement septic tank in the back yard. The septic tank was located about two or three feet from a concrete stoop at the back door of the garage. B & H mounded dirt over the septic tank and the lateral lines going out from it upon completion. Sometime after B & H installed the septic tank, Kitsmiller smoothed out the mounds of dirt over the septic tank and lateral lines. Kitsmiller then leased the property to Moore and his wife on July 27. Kitsmiller testified that he viewed the back yard about a week or ten days prior to leasing the property to the Moores and stated that the dirt around the septic system looked firm. On August 7, the Moores moved in. On August 11, Moore and his wife went into the back yard for the first time, and as he stepped off the stoop, he was unable to see the ground and could only see his wife and the bag of trash in his left arm. His wife testified that the ground looked flat. Moore testified that he had only taken a few steps off the stoop when his left leg sank into a hole, causing him to fall forward into his wife. As he tried to steady himself with his right foot, it hung and then sank, causing him to fall backward on his head and back. Moore testified that the injury to his back required surgery and affected his ability to earn a living. Moore filed suit against Kitsmiller and B & H. He sought dam- ages for past and future pain and suffering, past and future mental anguish, past and future physical impairment, and past and future loss of earning capacity. In their answers to Moore’s suit, both Kitsmiller and B & H pleaded the affirmative defense of contribu- tory negligence. During the jury trial, Moore testified Kitsmiller should have notified him where the septic tank and lateral lines were located and that the dirt should have remained mounded over the tank and lines. Martin, an on-site septic tank complaint investigator for both the Texas Commission on Environmental Quality and Van Zandt County, testified that dirt should have been mounded over the sep- tic tank and lateral lines, so that when the dirt settled, there would be no holes in the ground around the septic tank or lateral lines. The jury determined that (1) both Kitsmiller and Moore were negligent, but B & H was not; (2) Kitsmiller was 51 percent negli- gent and Moore was 49 percent negligent; and (3) Moore was entitled to $210,000 in damages. On September 29, 2004, the trial court entered a judgment in favor of Moore and against Kitsmiller in the amount of $210,000 plus interest and costs. Applying com- parative negligence, the trial court entered a modified final judg- ment on November 1, 2004, awarding Moore $107,100 plus interest and costs based upon Moore’s contributory negligence. Moore appealed all issues involving his contributory negligence. DECISION The judgment of t.

1. FACTS In the spring of 2001, Kitsmiller purchased a house in Van Zandt County to use as
rental property. In mid-June, he hired B & H Shaw Company, Inc. (B & H) to install a
replacement septic tank in the back yard. The septic tank was located about two or three feet
from a concrete stoop at the back door of the garage. B & H mounded dirt over the septic tank
and the lateral lines going out from it upon completion. Sometime after B & H installed the
septic tank, Kitsmiller smoothed out the mounds of dirt over the septic tank and lateral lines.
Kitsmiller then leased the property to Moore and his wife on July 27. Kitsmiller testified that he
viewed the back yard about a week or ten days prior to leasing the property to the Moores and
stated that the dirt around the septic system looked firm.
On August 7, the Moores moved in. On August 11, Moore and his wife went into the back yard
for the first time, and as he stepped off the stoop, he was unable to see the ground and could only
see his wife and the bag of trash in his left arm. His wife testified that the ground looked flat.
Moore testified that he had only taken a few steps off the stoop when his left leg sank into a hole,
causing him to fall forward into his wife. As he tried to steady himself with his right foot, it hung
and then sank, causing him to fall backward on his head and back. Moore testified that the injury
to his back required surgery and affected his ability to earn a living.
Moore filed suit against Kitsmiller and B & H. He sought dam- ages for past and future pain and
suffering, past and future mental anguish, past and future physical impairment, and past and
future loss of earning capacity. In their answers to Moore’s suit, both Kitsmiller and B & H
pleaded the affirmative defense of contribu- tory negligence.
During the jury trial, Moore testified Kitsmiller should have notified him where the septic tank
and lateral lines were located
and that the dirt should have remained mounded over the tank and lines. Martin, an on-site
septic tank complaint investigator for both the Texas Commission on Environmental Quality and
Van Zandt County, testified that dirt should have been mounded over the sep- tic tank and lateral
lines, so that when the dirt settled, there would be no holes in the ground around the septic tank
or lateral lines.
The jury determined that (1) both Kitsmiller and Moore were negligent, but B & H was not; (2)
Kitsmiller was 51 percent negli- gent and Moore was 49 percent negligent; and (3) Moore was
entitled to $210,000 in damages. On September 29, 2004, the trial court entered a judgment in
favor of Moore and against Kitsmiller in the amount of $210,000 plus interest and costs.
Applying com- parative negligence, the trial court entered a modified final judg- ment on
November 1, 2004, awarding Moore $107,100 plus interest and costs based upon Moore’s
contributory negligence. Moore appealed all issues involving his contributory negligence.

2. DECISION The judgment of the trial court is affirmed.
OPINION Contributory negligence contemplates an injured per- son’s failure to use ordinary
care regarding his or her own safety. This affirmative defense requires proof that the plaintiff
was negli- gent and that the plaintiff’s negligence proximately caused his or her injuries.
Negligence requires proof of proximate cause. Proxi- mate cause requires proof of both cause in
fact and foreseeability. The test for cause in fact is whether the negligent act or omission was a
substantial factor in bringing about an injury without which the harm would not have occurred.
Foreseeability requires that a person of ordinary intelligence should have anticipated the danger
created by a negligent act or omission.
Because comparative responsibility involves measuring the party’s comparative fault in causing
the plaintiff’s injuries, it
requires a preliminary finding that the plaintiff was in fact con- tributorily negligent. The
standards and tests for determining contributory negligence ordinarily are the same as those for
deter- mining negligence. The burden of proof on the whole case is on the plaintiff. However, the
burden of proof is on the defendant to prove the defense contributory negligence by a
preponderance of the evidence.
The trier of fact may draw reasonable and logical inferences from the evidence. It is within the
province of the jury to draw one reasonable inference from the evidence although another
inference could have been made.
Moore testified that when he stepped off the stoop into the back yard for the first time on August
11, 2001, he could only see his wife and the plastic bag of trash he was carrying in his left hand.
The jury was allowed to draw an inference from this evi- dence that Moore was not watching
where he was walking. An individual must keep a proper lookout where he is walking, and a jury
is allowed to make a reasonable inference that failure to do so
was the proximate cause of his injuries. It was reasonable for the jury to make an inference from
Moore’s testimony that his failure to keep a proper lookout where he was walking contributed to
the occurrence.
Moore contends that the only reasonable inference the jury could have made was that, even if he
had been watching where he was walking, he would not have been able to avoid stepping in the
holes because they were not visible to the naked eye. The jury could have made that inference,
but chose not to do so. Thus the jury made a reasonable inference from the evidence in finding
Moore contributorily negligent.
INTERPRETATION In cases in which both the plaintiff and defendant are negligent, under
comparative negligence the law apportions damages between the parties in proportion to the
degree of fault or negligence found against them.

3. If a plaintiff meets all of the requirements for a negligence claim, it does not necessarily mean
that the plaintiff will automatically win their lawsuit. There are certain defenses available to the
defendant. Some of those defenses are: (1) contributory negligence; (2) pure comparative
negligence; and (3) modified comparative negligence (explained on pages 152-54 of Text).
These three defenses were created to protect the defendant when the plaintiff may have been
negligent in some way. Please note that in states that follow only "contributory negligence" it
means that the plaintiff receives nothing if he/she is found even 1% negligent in the lawsuit
(page 152).
First, please discuss whether you agree or disagree with having these three types of defenses in a
negligence lawsuit.
Next, assume for the purposes of this question that you do agree with having these three
defenses, which of these three defenses do you believe is the most equitable to both the plaintiff
and the defendant?
Lastly, do you agree with the appellate court's decision affirming the lower court in Moore v.
Kitsmiller (p. 153-54) finding that the plaintiff was 49% negligent? Why or why not? Please note
that this case was a comparative negligence case as the plaintiff's overall recovery was reduced
from $210,000 to $107,100.
Please separate out and fully explain all of your answers. In your third answer, you should be
discussing the specifics of the case in reaching your conclusion.
Solution
FACTS OF THE CASE:-
Sometime after B & H installed the septic tank in the backyard, kittsmiller smoothed out the
mounds of dirt using his own equipments. Afterwards he leased his property to Moore and his
wife on 27 th of jully. after taking possetion of the house property on 11 th of august moore and
his wife walked into the back yard for the first time carrting the bags of garbage.
moore claimed that his wife led the way and he followed the foot and a half behind her. he also
claimed that at the time his right arm was in a sling and was carrying the bag in his left hand.
Moores wife claimed that the ground was looking flat as she walked further and moore said he
had only walked a couple steps before his leg sank in to the hole, causing him to fall forward on
to his wife. As he tried to regain the ballance with his right foot, it sank in to the ground causing
him to fall backwards hitting his leg and the back. Moore claimed that the injuries to his back
requires surgery and effected his ability to live and earn.
ANSWERS:
1. There were three avilable defences namely:- (1) contributory negligence; (2) pure comparative

4. negligence; and (3) modified comparative negligence
as per facts of the case mentioned above it is not justifyable to treat it as a pure comparative
negligence and modified comparative negligence. because circumstantial evidences proves that
the person can not figure out any kind of risk by just looking at the surface of the back yard using
eyes. hence it may be treated as a contributory negligence. the reason behind that is Moore could
have seen the sunk ground and possibly avoided the whole situation.
2. Yes, I do agree with the courts decision as :-
Kitsmiller was nigligent because he should have left teh mounds over the septic tank and lateral
lines. He also should have told the moores where the septic tank was located. on the other hand
moore had the duty to watch were he was walking. He should have seen teh sunken ground and
possibly avoided teh whole situation.