Defenses To Negligence

Negligence is a common tort claim. In general, a negligence action requires an injured party to show that a defendant failed to use reasonable care in some action, and that failure caused harm to another.  In litigation, the focus of many negligence claims center around causation, i.e., whether or not the defendant’s action both in fact and proximately caused the plaintiff’s injuries.  As such, there are three (3) common defenses that question the causation element in a negligence action: (1) contributory negligence; (2) comparative negligence; and (3) assumption of the risk. These defenses focus on the plaintiff’s actions before and during the time when he or she suffered injury as a truck accident lawyer can share.

Contributory negligence focuses on the level of care that the plaintiff exercised at the time of injury.  This defense is available when the plaintiff fails to use reasonable care to protect herself from harm which resulted in an actual and proximate cause of the injury.  The burden is on the defendant to prove that the plaintiff was contributorily negligent.  To show that the plaintiff breached her duty of care, the defendant must prove the same elements as a general negligence claim.  Specifically, the defendant must show that the plaintiff: (1) had a duty to protect themselves from harm; (2) breached that duty; (3) the breach was the cause in fact and proximate cause of the injury; and (4) that the plaintiff suffered damages.  If the defendant can make this showing, the plaintiff can be completely barred from recovery.

Comparative negligence is essentially an allocation of damages.  Effectively, the comparative negligence defense reduces the amount of damages a plaintiff can recover based on the degree of negligence attributable to each party.  States treat this defense in two main ways, pure comparative negligence of modified comparative negligence.  In a pure comparative negligence state, a jury assigns a percentage of fault to both parties and then apportions the damages in accordance with that apportionment.  There are two types of modified comparative negligence states, states that adopt either the equal fault bar or the greater fault bar. In an equal fault bar state, a plaintiff can recover all of their damages if their negligence is less than the combined defendant’s negligence.  In greater fault bar states, a plaintiff can not recover if they are assigned 51% or more of the fault.

Assumption of the risk is a defense that requires the defendant to show that, through their action, the plaintiff assumes the risk of injury.  This defense can be proved either in an express or implied fashion.  An absolute bar to recovery in most states, express assumption of the risk is based on the plaintiff’s voluntary exposure to a known danger by an express agreement.  To rely on this defense, the defendant must show that the plaintiff: (1) assumed the risk voluntarily and expressly; (2) was aware of the risk of harm present and knew they were giving up the risk to sue; and (3) if the recovery were to be denied, it would not be against public policy.  The implied assumption of the risk defense is an absolute defense to recovery that does not require an express agreement, rather it requires an inferred agreement through knowledge or actions.

Regardless of the articulated defense, the burden of each remains with the defendant. While the availability of each defense is dependent upon the state where the injury occurred, each state has some variation of the above defenses. If you have been injured due to someone else’s negligence, contact an attorney near you for help.

Thanks to Eglet Adams Eglet Ham Henriod for its insight on defenses to negligence.