concurring in part and dissenting in part:
I agree with the majority to the extent it holds that (i) defendant may raise the issue of plaintiffs contributory negligence as an affirmative defense and (ii) defendant raised this affirmative defense in timely fashion. I part company with the majority, however, on the issue of whether the jury was properly instructed. Because I believe that a reduced capacity instruction was warranted in this case, I would reverse and remand the matter for a new trial.
Relying heavily on De Martini v. Alexander Sanitarium, Inc., 192 Cal. App. 2d 442, 13 Cal. Rptr. 564 (1961), the majority initially concludes that the issue of contributory negligence of a mentally disturbed person is generally a question of fact and, thus, upholds the circuit court’s submission of the issue to the jury. In addressing plaintiffs argument concerning the jury instructions in this case, however, the majority inexplicably ignores the guidance provided on this subject by the court in De Martini. It must be noted that in De Martini, the court expressly approved the use of an instruction which told the jury that it was “necessary for you to visualize a person in a similar condition, when ascertaining what acts or omissions would be negligent and what would not be.” (Emphasis added.) De Martini, 192 Cal. App. 2d at 448, 13 Cal. Rptr. at 567. Moreover, my research reveals that this approach has been similarly endorsed by other courts in foreign jurisdictions. For example, the New Jersey Supreme Court has acknowledged that
“[t]he modern trend [in tort law] appears to favor the use of a capacity-based standard for the contributory negligence of mentally disturbed plaintiffs. W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on the Law of Torts § 32, 178 n.39 (5th ed. 1984). This standard tolerates a reduced standard of care for such persons. It measures the conduct of a mentally disturbed plaintiff in light of his or her capacity. [Citations.]
*** This standard recognizes that a mentally disturbed plaintiff is not capable of adhering to a reasonable person’s standard of self-care, but at the same time holds that plaintiff responsible for the consequences of conduct that is unreasonable in light of the plaintiffs capacity. In effect, this rule permits the application of a flexible reduced standard of care; it does not eliminate contributory negligence. Thus, in [such cases] contributory negligence is an issue that should be determined under the capacity-based standard.” (Emphasis added.) Cowan v. Doering, 111 N.J. 451, 459-60, 545 A.2d 159, 163 (1988).
Likewise, the Court of Appeals of North Carolina has held that a person whose mental faculties are diminished is not exempt from the doctrine of contributory negligence. However, that person is not to be held to the objective reasonable person standard. Rather, the court stressed that such a person should be held only to the exercise of such care as he or she was capable of exercising, “i.e., the standard of care of a person of like mental capacity under similar circumstances.” See Stacy v. Jedco Construction, Inc., 119 N.C. App. 115, 120, 457 S.E.2d 875, 879 (1995) (and cases cited therein).
Notwithstanding the above, the majority rejects plaintiffs contention that the standard Illinois pattern instruction (IPI) on contributory negligence, given to the jury here, was inadequate. Plaintiff argues that the instruction failed to take into account the fact that Kathryn was being treated for mental illness at the time of her death. Plaintiff further asserts that Kathryn should not have been held to the IPI standards of “ordinary care” and “a reasonably careful person” because her mental condition prevented her from exercising such care. In upholding the use of the given IPI instruction, the majority points out that the given instruction permitted the jury to consider ordinary care as the care a reasonably careful person would use under “circumstances similar to those shown by the evidence.” The majority implies that this quoted language permitted the jury to consider Kathryn’s mental state. .
Unlike my colleagues in the majority, I am not at all confident that the quoted language would have caused the jury to measure Kathryn’s conduct under the reduced standard of care as contemplated by the court in De Martini. Indeed, in view of the given instruction’s earlier reference to the “reasonably careful person,” I do not see how the jury would have known that it was to consider Kathryn’s actions against the standard of care of a person of like mental capacity under similar circumstances. The jury in this case was simply not given any indication that it was to measure Kathryn’s actions in light of her diminished capacity. Rather, the jury instruction given in this case merely related to the standard of care that governs an adult’s contributory negligence, without regard to that adult’s diminished capacity.1
The majority’s acceptance of an instruction on contributory negligence which refers to a reasonable person standard of care is inconsistent with the very case law utilized by the majority to recognize the doctrine of contributory negligence in suicide cases in the first instance. For this reason, I believe that the lack of an instruction which related to the jury the reduced standard of care applicable to Kathryn constituted reversible error. I, therefore, would remand the matter for a new trial.
JUSTICES BILANDIC and McMORROW join in this partial concurrence and partial dissent.
I note that in a contributory negligence case which involves a minor, IPI Civil 3d No. 10.05 is to be used. This instruction explains to the jury the concept of the minor’s reduced capacity by instructing that ordinary care means “that degree of care which a reasonably careful [person] [minor] [child] of the age, mental capacity and experience of the [plaintiff] [defendant] [decedent] would use under circumstances similar to those shown by the evidence.” IPI Civil 3d No. 10.05. The inclusion of the phrase “under circumstances similar to those shown by the evidence” in this instruction contradicts the majority’s implication that this same phrase in the standard instruction serves to direct the jury to consider the concept of reduced capacity. If that were true, then IPI Civil 3d No. 10.05 would be unnecessary in cases involving minors. In any event, had an instruction similar to IPI Civil 3d No. 10.05 been given in this case, it would have more accurately explained to the juiy the reduced capacity standard at issue than the standard instruction approved today by the majority.