Defenses to Negligence
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Defenses to Negligence Legal Claims
- Comparative negligence
- Contributory negligence
- Proximate Cause
- Assumption of Risk
Comparative negligence occurs when the plaintiff acts negligently and this negligence contributes to his injury. Most states permit comparative negligence defenses, though your state may limit when it can be raised. When comparative negligence is raised, the defendant must prove that the plaintiff was also negligent.
For instance, the plaintiff is walking on a paved sidewalk while texting on his phone. He is not looking down at the sidewalk, and he trips over a hole in the sidewalk. The city is responsible for keeping sidewalks safe and is therefore negligent for failing to fix the hole. However, the plaintiff is also negligent because he was not mindful of his surroundings.
When comparative negligence is proved, the plaintiff’s award will be reduced proportionate to the amount of his own negligence. If the jury believes he was 25% at fault, his damages will be reduced by 25%.
Contributory negligence is akin to comparative negligence in that the plaintiff has also acted negligently and contributed to his injury. However, with contributory negligence, a plaintiff’s claim is completely barred, even if his own negligence was only slight. Only a small number of states recognize this defense.
Proximate cause of an injury is a cause so related to the injury that the jury will find that the cause is legally responsible for creating the injury. In some cases, the defendant’s negligent actions are the obvious and sole cause of the injury. However, in other cases, the cause of the plaintiff’s injury may be unclear. It is the plaintiff’s job to prove the cause of the injury.
For instance, a plaintiff driving a car loses control and crashes into a building. The proximate cause may be negligent driving or may be a mechanical malfunction of the car. In the latter scenario, the car manufacturer may be negligently liable, but in the former, only the plaintiff is negligently liable.
Assumption of Risk
Some activities are so inherently dangerous that plaintiffs are said to assume the risk of danger when they intentionally and voluntarily participate in these activities. For instance, sky diving and bungee jumping are risky and dangerous.
If the danger is obvious and the plaintiff participates anyway, assumption of risk arises. If the plaintiff signs an express waiver, then the plaintiff is also said to assume the risk of any subsequent injuries.
Do I Need a Defense Lawyer?
If someone has filed a negligence lawsuit against you, you need a personal injury lawyer to defend you against their claims. A personal injury defense lawyer can help you formulate defenses, investigate the case, negotiate a settlement, or bring the case before a jury.
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Last Modified: 07-30-2015 11:12 AM PDT
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