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The Best Defenses for Negligence

Negligence Defenses

Contributory Negligence:

Contributory negligence is one of the most commonly used negligence defenses. The defendant attempts to deny the plaintiff the right to action by claiming that the plaintiff's own negligence played a large role in his injuries. In contributory negligence, both parties are guilty of negligence, but the plaintiff is not awarded any damages.

It is said that the plaintiff intervened in the defendant's actions and made it more likely for the defendant to cause him injury. Just as the defendant has the duty to reduce the amount of undue risk to others, the plaintiff has the duty to protect himself from possible harm. Contributory negligence includes the plaintiff's knowledge that the situations he was in, posed an unnecessary risk to himself and he should have taken precaution. If even a slight amount of contributory negligence is found on the plaintiff's part, then it bars him from taking any action against the defendant.

"Last Clear Chance":

The last clear chance rule is an exception to the contributory negligence defense which permits the plaintiff more freedom in taking action against a defendant when the plaintiff is also guilty of negligence. The last clear chance refers to an instance where the defendant had the last clear chance to avoid injuring the plaintiff, but did not take the opportunity.

It is often found that, the later action, or lack of action, by the defendant, caused the most harm in a situation; this points to a greater amount of fault on the part of the defendant. The last chance rule is generally upheld in cases where the plaintiff is in a helpless situation or the defendant is more aware of the perilous situation than is the plaintiff.

Comparative negligence:
In cases where both the plaintiff and the defendant are both guilty of some degree of negligence, contributory negligence places liability solely on the plaintiff. This is often considered unfair and is the reason that a system of comparative negligence has emerged which weighs the amount of fault in both parties, to determine who is responsible for the plaintiff's injuries. The apportionment of damages, where each party pays a portion of the injuries, has been divided into three systems: pure, modified, and slight-gross.

In a pure system, contributory negligence does not bar the plaintiff from taking action, but awards him only a portion of the damages for which the defendant was responsible. In a modified system, a plaintiff is awarded damages only if his negligence is less than or equal to that of the defendant's. A slight-gross system awards damages only if the plaintiff's negligence is considered to be slight and the defendant's is gross negligence. Comparative negligence has basically overridden the doctrine of last clear chance.

Assumption of Risk:

Assumption of risk implies a certain level of consent on the part of the plaintiff to engage in risky actions, without any duty of the defendant to protect the plaintiff. The aspect of duty in assumption of risk means that the plaintiff has entered into some kind of relationship with the defendant with full knowledge that it is not the defendant's duty to protect the plaintiff from harm. When a plaintiff assumes risk, he must voluntarily chose to engage in this conduct; this can be seen through either express agreement or implied agreement.

In express agreement, the parties have a contract which excuses the defendant from all responsibility for injuries incurred by the plaintiff. This normally bars the plaintiff from taking any action against the defendant. Implied agreement is assumed through the plaintiff's words or actions. The defense of assumption of risk is only applicable if the plaintiff engages in this assumption freely. The emergence of comparative negligence into negligence law has altered the way assumption of risk is looked at by the courts.

NEXT: Circumstantial Evidence Res Ipsa Loquitur

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