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20 Clev. St. L. Rev. 286 (1971)
Damages from Slip and Fall Injuries

handle is hein.journals/clevslr20 and id is 294 raw text is: Damages From Slip and Fall Injuries
Gibson B. Witherspoon*
N THE EARLIER SLIP AND FALL CASES a plaintiff who had assumed the
risk could not recover from a defendant who had been negligent in
permitting a dangerous condition to exist,' because of the doctrines
volenti non fit injuria2 and assumption of risk.3 In most jurisdictions
contributory negligence4 bars recovery, but in a few states it only di-
minishes the damages.5 Therefore, if the plaintiff acts unreasonably in
encountering a known risk his conduct amounts to contributory negli-
gence and he is barred from recovery for two reasons: (1) He has im-
pliedly consented to take a chance; (2) The policy of the law is to deny
recovery for a loss for which the plaintiff was at least partially respon-
sible. Juries seemed suspicious of injuries in the early cases, and ver-
dicts were usually small.
* Of the law firm of Witherspoon & Compton, Meridian, Mississippi; Past President,
Mississippi State Bar; Fellow of American Bar Foundation; Member, House of Dele-
gates and Board of Governors of American Bar Association; One of the Founders
and Past-President of Scribes; Associate Editor Commercial Law League of America;
Fellow of The American College of Probate Counsel, Life Member of National Con-
ference of Commissioners on Uniform State Laws.
1 Westborough County Club v. Palmer, 204 F. 2d 143 (8th Cir. 1953); Schmidt v.
Fontaine Ferry Enterprises, 319 S.W. 2d 468 (Ky. Ct. App. 1958); Strand Enterprises,
Inc., v. Turner, 223 Miss. 588, 78 S. 2d 769 (1955); Landrum v. Roddy, 143 Neb. 934,
12 N.W. 2d 82 (1943).
2 No legal wrong is done to one who consents. 44 Words and Phrases 599 (1962).
Generally, one who voluntarily places himself in a situation whereby he suffers an
injury will not be heard to say that his damage is due to nuisance maintained by
another, the principle being expressed by the maxim volenti non-fit injuria. Oetjen
v. Goff Kirby Co., 38 Ohio L. Abs. 117, 49 N.E. 2d 95 (1942).
3 Distinction between doctrine of assumption of risk and the maxim volenti non fit
injuria is that the former applies to cases involving contractual relationship, while
latter applies without regard to any contractual relationship, but the general theory
underlying both is the same. Bailey v. Safeway Stores, Inc., 55 Wash. 2d 728, 349
P. 2d 1077 (1960).
4 Contributory negligence involves some fault or breach of duty on the part of the
injured person or his failure to use required degree of care for his safety. Whereas,
assumption of risk doctrine or volenti non-fit injuria maxim may bar recovery of
damages for injuries sustained though injured person was free from contributory
negligence. Kirby Lumber Co. v. Murphy, 271 S.W. 2d 672 (Tex. Civ. App. 1954).
5 For example, under § 1454 of the Mississippi Code it is provided: In all actions
hereafter brought for personal injuries, or where such injuries have resulted in death
or injury to property, the fact that the person injured, or the owner of the property,
or person having control over the property may have been of contributory negligence
shall not bar a recovery, but damages shall be diminished by the jury in proportion
to the amount of negligence attributable to the person injured, or the owner of the
property or the person having control over the property. As a practical proposition
when the defense attorney argues contributory negligence, in the closing argument
the plaintiff's attorney usually says, They contend this poor lady was guilty of con-
tributory negligence. Thereby they admit their own negligence and if she was 50%
negligent, just reduce our $40,000.00 suit to half and return a verdict for $20,000.00
under this instruction of the court and the defendant's admission to their negli-

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