B21.02.02. Burden of Proof on the Issues-One Plaintiff and One Defendant-Negligence and Willful Wanton Counts

B21.02.02 Burden of Proof on the Issues--One Plaintiff and One Defendant-- Negligence and Willful and Wanton Counts [1] The plaintiff has the burden of proving each of the following propositions in Count I of his complaint: [2] First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent; [3] Second, that [the plaintiff was injured] [and] [the plaintiff's property was damaged]; [4] Third, that the negligence of the defendant was a proximate cause of [the injury to the plaintiff] [and] [the damage to the plaintiff's property]. [5] In order to recover in this action on Count I, the plaintiff must prove all of the above propositions. If you find from your consideration of all the evidence that all of the propositions (First, Second, and Third) in Count I have been proved, then you must next consider the defendant's claim that the plaintiff was contributorily negligent as to Count I. [6] As to that claim, the defendant has the burden of proving each of the following propositions: [7] A: That the plaintiff acted or failed to act in one of the ways claimed by the defendant as stated to you in these instructions and that in so acting, or failing to act, the plaintiff was negligent; [8] B: That the plaintiff's negligence was a proximate cause of [his injury] [and] [the damage to his property]. [9] If you find from your consideration of all the evidence that the plaintiff has proved all of the propositions required of the plaintiff (First, Second, and Third) in Count. I, and if you find from your consideration of all the evidence that either of the propositions required of the defendant (A or B) has not been proved, then your verdict shall be for the plaintiff and you shall not reduce the plaintiff's damages. [10] If you find from your consideration of all the evidence that one or more of the above propositions required of the plaintiff (First, Second, or Third) has not been proved, then your verdict shall be for the defendant. [11] If you find from your consideration of all the evidence that the plaintiff has proved all of the propositions required of the plaintiff (First, Second, and Third) in Count I, and if you further find from your consideration of all the evidence that the defendant has proved both of the propositions required of the defendant (A and B) and that the plaintiff's negligence was greater than 50% of the total proximate cause of the injury or damage for which recovery is sought, then your verdict shall be for the defendant. [12] If you find from your consideration of all the evidence that the plaintiff has proved all of the propositions required of the plaintiff (First, Second, and Third) in Count I, and if you further find from your consideration of all the evidence that the defendant has proved both of the propositions required of the defendant (A and B) and that the plaintiff's negligence was 50% or less of the total proximate cause of the injury or damage for which recovery is sought, then your verdict shall be for the plaintiff and you shall reduce plaintiff's damages in the manner stated to you in these instructions. [13] The plaintiff has the burden of proving each of the following propositions in Count II of his complaint: [14] First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was willful and wanton; [15] Second, that [the plaintiff was injured] [and] [the plaintiff's property was damaged]; [16] Third, that the willful and wanton conduct of the defendant was a proximate cause of [the injury to the plaintiff] [and] [the damage to the plaintiff's property]. [17] If you find from your consideration of all the evidence that any of these propositions (First, Second, and Third) has not been proved, then your verdict shall be for the defendant as to Count II. But if, on the other hand, you find from your consideration of all the evidence that all the propositions (First, Second, and Third) in Count II have been proved, then you must next consider the defendant's claim that the plaintiff was contributorily willful and wanton as to Count II. [18] As to that claim, defendant has the burden of proving each of the following propositions: [19] A: That the plaintiff acted or failed to act in one of the ways claimed by the defendant as stated to you in these instructions and that in so acting, or failing to act, the plaintiff was willful and wanton; [20] B: That the plaintiff's willful and wanton conduct was a proximate cause of [his injury] [and] [the damage to his property]. [21] If you find from your consideration of all the evidence that plaintiff has proved all of the propositions required of the plaintiff (First, Second, and Third) in Count II, and if you find from your consideration of all the evidence that either of the propositions required of the defendant (A or B) has not been proved, then your verdict shall be for the plaintiff [and you shall not reduce the plaintiff's damages]. [Alternative A] [22] [If you find from your consideration of all the evidence that the plaintiff has proved all of the propositions required of the plaintiff (First, Second, and Third) in Count II, and if you further find from your consideration of all the evidence that the defendant has proved both of the propositions required of the defendant (A and B) and that the plaintiffs willful and wanton conduct was greater than 50% of the total proximate cause of the injury or damage for which recovery is sought, then your verdict shall be for the defendant.] [23] [If you find from your consideration of all the evidence that the plaintiff has proved all of the propositions required of the plaintiff (First, Second, and Third) in Count II, and if you further find from your consideration of all the evidence that the defendant has proved both of the propositions required of the defendant (A and B) and that the plaintiff's willful and wanton conduct was 50% or less of the total proximate cause of the injury or damage for which recovery is sought, then your verdict shall be for the plaintiff and you shall reduce plaintiff's damages in the manner stated to you in these instructions.] [Alternative B] [24] [If you find from your consideration of all the evidence that the defendant has proved both of the propositions required of