A defendant who wishes to successfully defend him or herself against a negligence case needs to be able to do negate one or more elements of the cause of action filed by the plaintiff. This involves the introduction of evidence that will show that the defendant did not owe any duty to the plaintiff, or that the defendant exercised reasonable care, or that the defendant did not cause the damages sustained by the plaintiff.
There are three concepts that may help a defendant with his or her case when it comes to a negligence claim:
Contributory negligence is one of the most commonly used defenses when it comes to personal injury and negligence cases. This occurs when the plaintiff is found to have acted in a way that only increased the risk of injury, and such actions have coordinated with the negligence of the defendant which eventually caused harm to the plaintiff. In layman’s terms, this concept states that if only the plaintiff did not exercise negligence on his or her part, then he or she would most likely have avoided the injuries.
As an example, a construction worker is using a welding machine as he works on the railing of the building. He ends up suffering serious burns as the welding torch malfunctions and explodes. This could be grounds for a personal injury case. However, during investigation it was found that he was not wearing his protective mask that would have prevented the injury even if the torch malfunctioned. Because the worker was negligent in ensuring that he was wearing protective gear, then he may also end up sharing the liability for the accident.
Contributory negligence has resulted in rather drastic outcomes in the past – as far as not granting the plaintiff any compensation despite the injuries sustained, all because he or she was found to have contributed to the injury. As a result, some states have adapted the doctrine of comparative negligence – where the court determines the percentage of liability that falls on the plaintiff, and reduces the compensation he or she will receive based on it.
In the above example, if the malfunctioning welding torch also electrocuted the construction worker, causing more injuries apart from serious burns, then the company he works for may be more liable. If for example, the court finds the company 70% liable and the worker 30%, then the plaintiff (worker) who is awarded $100,000 in damages will receive $70,000 instead (less 30%)
ASSUMPTION OF RISK
If the plaintiff is able to assume the risk in engaging in an evidently dangerous activity and still pursues it, then this could render him or her unable to recover damages for any injuries sustained. However, this entails that the plaintiff has actual and subjective awareness of the risk involved. Furthermore, it needs to be shown that the plaintiff voluntarily accepted the said risk.
If you are involved in negligence case and would like to defend your stand, then the lawyers of The Kyle Law Firm will be here to fight with you. Contact us today so we can plan your defense.