401.22 Defense Issues

401.22 Defense Issues If, however, the greater weight of the evidence supports [(claimant)'s claim] [one of more of (claimant)'s claims], then you shall consider the defense[s] raised by (defendant). On the [first] defense, the issue[s] for you to decide [is] [are]: The order in which the defenses are listed below is not necessarily the order in which the instruction should be given. a. Comparative negligence generally: whether (claimant or person for whose injury or death claim is made) was [himself] [herself] negligent in (describe alleged negligence) and, if so, whether that negligence was a contributing legal cause of injury or damage to (claimant). b. Driver's comparative negligence when owner sues third party: whether (driver), while operating a vehicle owned by (claimant) [with (his) (her) consent, express or implied,*] was [himself] [herself] negligent in the operation of the vehicle and, if so, whether that negligence was a contributing legal cause of the injury or damage to (claimant). *The phrase within brackets should be used only if there is an issue as to the owner's knowledge and consent] c. Joint enterprise (driver's negligence): whether (driver) was operating the automobile at the time and place of the [collision] [incident in this case] to further the purposes of a joint enterprise in which [he] [she] was engaged with (claimant passenger); if so, whether (driver) was negligent in the operation of the automobile; and, if so, whether that negligence was a contributing legal cause of [loss] [injury] [or] [damage] to (claimant). A joint enterprise exists when two or more persons agree, expressly or impliedly, to engage in an activity in which they have a common interest in the purposes to be accomplished and equal rights to control and manage the operation of an automobile in the enterprise. Each member of a joint enterprise is responsible for the negligence of another member in the operation of the automobile if that negligence occurs while [he] [she] is acting under the agreement and to further the purposes of the joint enterprise. d. Comparative negligence of parent predicated on other parent's negligence (claim for death of child): whether (parent) was negligent in caring for and supervising the child, (name); if so, whether that negligence was a contributing legal cause of the death of (child), and, if so, whether (other parent), in the exercise of reasonable care, should have anticipated that negligence on the part of (parent). e. Comparative negligence of custodian of child other than parent: whether, before the incident in this case, (claimant) placed (child) in the care and custody of (custodian), if so, whether (custodian) was negligent in caring for and supervising the child, (name); and, if so, whether that negligence was a contributing legal cause of [injury] [and] [death] to (child). f. Apportionment of fault: whether (identify additional person(s) or entit(y)(ies)) [was] [were] also [negligent] (specify other type of conduct); and, if so, whether that [negligence] [fault] [responsibility] was a contributing legal cause of [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made). g. Assumption of risk: whether (claimant) knew of the existence of the danger complained of; realized and appreciated the possibility of injury as a result of such danger; and, having a reasonable opportunity to avoid it, voluntarily and deliberately exposed [himself] [herself] to such danger.