Since we have discussed Plaintiffs’ conduct in class, I thought this video would offer a useful point of analysis. Is this negligence by the security guard?
In the video, the guard hits the close button on the gate but then walks away before it is completely closed. One could argue that it is negligence not to wait for the door to be fully closed. However, it is an overt danger that the woman has completely ignored. Thus, even if there were negligence, there would be a strong argument of contributory negligence. It is actually sort of a challenge to get caught in a slow-moving automatic door.
Obviously, in a contributory negligence jurisdiction where even one percent of contributory negligence bars recovery, she would be barred. There is always the chance that she could claims to be an “inattentive plaintiff” under the last clear chance doctrine, but this requires that the defendant knew she was inattentive.
Now, assuming that we are in a comparative negligence jurisdiction (which includes virtually all states), is the woman more than fifty percent at fault? In a modified comparative negligence state, that would bar her from any recovery.
What percentage of responsibility would you place on the woman? In a pure comparative negligence jurisdiction, her award (if granted) would be reduced by her fault.