No one witnessed how or why Erickson got in front of the truck's rear wheels. Erickson's children brought this wrongful death action against Regan and the Schwans, asserting that Regan's negligence caused their father's death. The action was tried to a jury, which apportioned negligence at 90 percent to Erickson and 10 percent to Regan. The court denied a motion for a new trial and the Erickson children appealed from the judgment. The Erickson children assert that the trial court erred in refusing to give their requested instruction on momentary forgetfulness.
Momentary forgetfulness is a doctrine arising from the principles of contributory negligence.
In essence, the doctrine provides that when a plaintiff voluntarily exposes himself to a danger of which he had previous knowledge, but momentarily forgets the danger, such forgetfulness is not contributory negligence unless, under all the circumstances, it shows a want of ordinary care not to have kept the danger in mind. The trial court determined that there was sufficient evidence from which the jury could infer that Erickson had knowledge of the danger and voluntarily assumed the risk, but that there was insufficient evidence to allow an inference that Erickson momentarily forgot the danger. The Erickson children assert that there was sufficient evidence to support an instruction on momentary forgetfulness. In Scheels , supra , we held that it was error to give the pattern jury instruction on assumption of risk in a negligence case. In 1987, the Legislature enacted Chapter 32-03.2, N.D.C.C., which significantly revised tort liability law in this state.