HOW TO DEFEND NEGLIGENCE CLAIM

To successfully defend against a negligence suit, the defendant will try to negate one of the elements of the plaintiff’s cause of action. In other words, the defendant introduces evidence that he or she did not owe a duty to the plaintiff; exercised reasonable care; did not cause the plaintiff’s damages; and so forth. In addition, a defendant may rely on one of a few doctrines that may eliminate or limit liability based on alleged negligence.

Three of the most common doctrines are contributory negligence, comparative fault, and assumption of risk. For instance, you may not be found entirely liable if the other party also was negligent. This and other defenses to negligence claims are discussed below.

Contributory Negligence

One of the most commonly used defenses to negligence claims is to show contributory negligence on the part of the plaintiff. Contributory negligence occurs when a plaintiff’s conduct falls below a certain standard necessary for the plaintiff’s protection, and this conduct cooperates with the defendant’s negligence in causing harm to the plaintiff. In plain English, this means the plaintiff most likely would have avoided injuries had he or she not also been negligent.

For example, a factory worker suffers serious burns to his face after his welding torch malfunctions. However, he failed to flip down his mask before using the torch, which would have prevented the injury. Technically speaking, the plaintiff’s negligence for his safety (failure to use proper safety equipment) is the cause-in-fact and proximate cause of the damages.

Some states, including the District of Columbia and North Carolina, us the doctrine of “pure contributory negligence.” Under this doctrine, a victim who is only 1 percent at fault may be denied compensation in a lawsuit. Indiana, meanwhile, applies this doctrine only to malpractice cases.

An exception to the contributory negligence defense is known as “last clear chance,” when the defendant could have avoided causing injury by using ordinary care. For example, a pedestrian crosses the street even though the “don’t walk” sign is clearly visible. A motorist who has the right-of-way but is distracted by her cell phone strikes and injures the pedestrian. Since the motorist could have avoided striking the pedestrian had she used ordinary care, she can still be found liable.

In many states, contributory defenses to negligence claims (and by extension, the last clear chance exception) has been replaced by comparative negligence.

Comparative Negligence

Contributory negligence has led to harsh results in some cases, and the majority of states have replaced the doctrine with an alternative called comparative negligence (also called “non-absolute contributory negligence”). The doctrine of comparative negligence reduces a plaintiff’s recovery by the percentage in which the plaintiff is at fault for his or her damages.

A majority of states have modified this rule, barring a plaintiff from recovering if the plaintiff is as much at fault (in some states) or more at fault (in other states) than the defendant.

The three main types of comparative negligence are:

  1. Pure: Plaintiff is awarded a percentage of the damages for which defendant is responsible.
  2. Modified: Plaintiff is awarded damages only if his or her negligence is equal to or less than the defendant’s negligence.
  3. Slight-Gross: Plaintiff is awarded damages only if his or her negligence is considered “slight” and the defendant’s negligence is “gross.”

For example, a drunk driver strikes and seriously injures a pedestrian who failed to use a nearby crosswalk. Although it’s unlikely the driver would have acted any differently had the pedestrian used the crosswalk, the driver’s civil liability may be reduced due to the plaintiff’s own negligence.

Assumption of Risk

When a plaintiff assumes the risk involved in an obviously dangerous activity but proceeds to engage in the activity anyway, he or she may not be able recover damages for injuries. In order for this doctrine to apply, the plaintiff must have actual, subjective knowledge of the risk involved in the activity. The plaintiff must also voluntarily accept the risk involved in the activity. The assumption of risk defense would not apply to any additional, unknown dangers.

An example might involve an amusement park ride that flips passengers completely upside-down. A passenger who saw the ride and knew what would happen on the ride assumed the risks associated with the ride. On the other hand, a plaintiff does not assume the risk of something unexpected related to the ride, such as where a loose bolt causes the ride to throw the plaintiff in a violent manner.

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