B22.01. Res Ipsa Loquitur-Burden of Proof-Contributory Negligence

B22.01 Res Ipsa Loquitur--Burden of Proof--Contributory Negligence [Under Count [__],] T[t]he plaintiff has the burden of proving each of the following propositions: First: That [the plaintiff was injured] [or] [the plaintiff's property was damaged.] Second: That the [injury] [damage] was received from a [name of instrumentality, e.g., a folding chair] which [was] [had been] under the defendant's [control] [management]. Third: That in the normal course of events, the [injury] [damage] would not have occurred if the defendant had used ordinary care while the [instrumentality] was under his [control] [management]. If you find that each of these propositions has been proved, the law permits you to infer from them that the defendant was negligent with respect to the [instrumentality] while it was under his control or management. If you do draw such an inference, and if you further find that the plaintiff's injury was proximately caused by that negligence, you must next consider the defendant's claim that the plaintiff was contributorily negligent. As to that claim, the defendant has the burden of proving each of the following propositions: 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; B: That the plaintiff's negligence was a proximate cause of [his injury] [and] [the damage to his property]. If you find from your consideration of all the evidence that the defendant has not proved both of the propositions required of him, then your verdict shall be for the plaintiff and you shall not reduce the plaintiff's damages. If you find from your consideration of all the evidence that the defendant has proved both of the propositions required of him, and if you find that the plaintiff's contributory 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. If you find from your consideration of all the evidence that the defendant has proved both of the propositions required of him, and if you find that the plaintiff's contributory 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 the plaintiff's damages in the manner stated to you in these instructions. On the other hand, if you find that any of the propositions required of the plaintiff has not been proved, or if you find that the defendant used ordinary care for the safety of the plaintiff in his [control] [management] of the [instrumentality], or if you find that the defendant's negligence, if any, was not a proximate cause of the plaintiff's [injury] [damages], then your verdict shall be for the defendant under this Count.