190.03.01. Nursing Home Care Act-Burden of Proof-Contributory Negligence an Issue

190.03.01 Nursing Home Care Act--Burden of Proof--Contributory Negligence an Issue The plaintiff has the burden of proving each of the following propositions: [First that [name of resident] was injured and sustained damages [while [name of resident] was a resident of [name of facility];] [Second, that the defendant[s] [were] [was] the [owner] [and] [licensee] of a covered facility;] Third, that the defendant[s] violated the Nursing Home Care Act in one of the ways claimed by the plaintiff as stated to you in these instructions; Fourth, that the defendant's violation of the Nursing Home Care Act was a proximate cause of the injury to the plaintiff. If you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant. On the other hand, if you find from your consideration of all of the evidence that each of these propositions has been proved, then you must consider the defendant's claim that the plaintiff was contributorily negligent. As to that claim, the defendant has the burden of proving both of the following propositions: A. That [name of resident] 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, [name of resident] was negligent. That [name of resident]'s negligence was a proximate cause of [his] [her] injury. B. If you find from your consideration of all the evidence that the plaintiff has proved all the propositions required of the plaintiff and that the defendant has not proved both of the propositions required of the defendant, then your verdict shall be for the plaintiff and you shall not reduce plaintiff's damages. If you find from your consideration of all the evidence that the defendant has proved both of the propositions required of the defendant, and if you find that [name of resident]'s contributory negligence was more 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 the defendant, and if you find that [name of resident]'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.