Defenses to Negligence

Negligence is a legal cause of action that falls under the umbrella of general tort law. A claim for negligence may arise when an individual suffers injuries due to another party’s carelessness or failure to exercise the same level of care as the average ordinary person would use under the same or a similar set of circumstances.

For example, a person may be held liable for negligence if they knowingly sped through a stop sign or a red light while driving and crashed into another motor vehicle causing serious injuries to those involved. Another example of negligence would be if a property owner failed to replace a banister on a stairwell that they knew was broken, which eventually resulted in one of their social guests suffering serious injuries during a visit to their home.

Whether or not a person can be held liable for acts of negligence will depend on a number of factors. These include the facts of a particular case, the laws of the jurisdiction in which the incident occurred, and/or whether a plaintiff can prove that a person was negligent to their detriment.

In some instances, the person being accused of acting negligently may be able to raise a legal defense against their accuser’s legal claim for negligence. The potential types of defenses that one may be able to assert against a claim for legal negligence will be discussed in further detail in its own section below.

If you are currently being sued for negligence, however, you should speak to a local personal injury attorney as soon as possible. An attorney will be able to determine whether there are any defenses that you can raise in the negligence case against you and can explain how the laws in your state may affect the outcome of the lawsuit.

What are the Elements of Negligence?

As previously mentioned, a plaintiff in a personal injury lawsuit involving a claim for negligence will be required to prove the following elements below in order to show that a defendant acted in a negligent manner. If the plaintiff is able to prove all four elements of negligence and the defendant has no defenses they can assert against their claim, then the plaintiff will likely prevail in the lawsuit or at least on the claim for negligence.

In general, there are four standard elements that a plaintiff must demonstrate to prove that a defendant was negligent. It should be noted, however, that these elements may change in accordance with state laws. Thus, the four standard elements of negligence provide a basic overview of what a plaintiff will likely need to show, but exclude any additional factors required by the laws in their state. The four standard elements of negligence are as follows:

• Duty: The plaintiff must first demonstrate that a defendant owed them a legal duty of care based on the circumstances. A duty of care may exist for a number of reasons, such as the relationship between the defendant and the plaintiff. For instance, a doctor must uphold a certain standard of care when treating a patient. There may also be a duty of care because of the situation the parties were in like if they were driving vehicles at high speeds on a highway.
• Breach: The plaintiff must then show that the defendant breached whatever duty of care they owed to them. This means that the defendant failed to act in a certain manner or did not act at all. A court will apply the “reasonable person” standard to determine whether a defendant breached their duty. The standard essentially asks if the average ordinary person would have behaved the way that the defendant did under the same or a similar set of circumstances.
  • If the average ordinary person would have acted differently in a situation in order to avoid causing any injuries, then the defendant may be held liable for their actions if the plaintiff can prove the rest of the elements of negligence.
• Causation: The plaintiff must show that the defendant was both the actual and proximate cause of their injuries. Actual cause is proven by applying the “but for” test. The “but for” test inquires, “but for the actions of a defendant, would a plaintiff have been injured?” For instance, if a driver did not run a red light, then there would not have been a collision or any harm associated with that accident.
  • As for proximate cause, this refers to whether the defendant could have reasonably foreseen that their conduct would lead to injuring others. For example, if a defendant somehow injured the plaintiff through an unexpected or random series of events, then their injuries may be deemed unforeseeable.
  • In which case, the defendant would not be held liable because the plaintiff would not be able to prove that the defendant was the proximate cause of their injuries.
• Damages: The fourth and final element of negligence requires a plaintiff to prove that they have suffered some actual quantifiable harm due to a defendant’s negligent conduct. It also indicates to the court that the law would be able to compensate the plaintiff for the injury or economic loss that they suffered. In most instances, a plaintiff who proves all four elements of negligence will be able to recover some amount of monetary damages.

What are the Defenses to Negligence?

As discussed above in the first section, there are several defenses that a defendant may be able to raise against a claim for negligence. Some of the most common types of legal defenses that may be available to a defendant involved in a negligence case include the following:

• Assumption of risk: Assumption of risk is one type of legal defense that one can use against a claim for negligence. Basically, an assumption of risk defenses states that a plaintiff should not be allowed to recover any damages for their injuries since they knew the risks involved in doing a particular activity, but continued to participate in the activity despite the dangers. If a defendant can raise this defense successfully, then the plaintiff will not be permitted to recover any damages in the lawsuit.
  • It is important to note, however, that the defense will only apply if the plaintiff had actual, subjective knowledge of the risks associated with an activity. The plaintiff must have also voluntarily accepted these risks before engaging in the activity as well.
• Contributory negligence: Contributory negligence may exist when a plaintiff is found to have acted negligently, contributing to their own injuries. In such a scenario, both the defendant and the plaintiff will have acted unreasonably or negligently, which when combined, caused the plaintiff to suffer harm. Had the plaintiff not acted as negligently as the defendant, then they may have avoided the situation altogether and not received any injuries at all.
  • An example of contributory negligence would be if a driver crashed into another driver’s car because neither one was paying attention when operating their motor vehicles. For instance, if one driver was speeding and playing with their car radio, while the other driver was looking down and texting on their phone. The driver texting on their phone may have been able to avoid the collision if they had been focused on the road instead.
  • It should be noted that the doctrine of contributory negligence is only available in five states. Under the doctrine, a plaintiff can be barred from recovering damages even if they are found to be only one percent at fault. This can be a harsh defense for plaintiffs who are only slightly negligent. Hence, why many states have since replaced the doctrine with some version of comparative negligence.
• Comparative negligence: There are several forms of comparative negligence, but generally it is used to reduce a plaintiff’s ability to recover damages by whatever percent they are found to be at fault for causing an accident and any subsequent injuries related to that accident. One form of this theory of negligence is known as pure comparative negligence. A pure comparative negligence defense allows a plaintiff to collect damages from a defendant even if the defendant is only 1% to blame for their injuries.
  • On the other hand, modified comparative negligence only allows a plaintiff to recover damages if they are either less or equally to blame for the accident and their injuries than a defendant. If a plaintiff is found to be either 50% or 51% more at fault than a defendant, then they will be barred from recovery depending on which version their state has adopted.

Should I Contact a Lawyer If I am Facing a Negligence Claim?

If you were involved in an incident that resulted in injuries to either yourself or to someone else, then you may want to consider consulting with a local personal injury attorney for further legal advice. An experienced personal injury attorney can explain the relevant laws in your state and how they may affect the outcome of your case. Your attorney can also conduct legal research to see if there are any defenses that you can raise against a claim for negligence.

Alternatively, your attorney can help you file a claim for negligence against another party in civil court. Your attorney can also assist you in drafting any necessary legal documents for your case and can ensure that you have enough solid evidence to prove all four elements of negligence. In addition, your attorney can provide legal representation in court as well as during any type of legal proceeding or meeting related to your claim for negligence.