For upon |In a negligence lawsuit, the defendant will attempt to defend the lawsuit by introducing evidence to negate the plaintiff’s cause of action. For example the defendant will attempt to show that there was no duty of care owed by him or her to the plaintiff. The defendant can also rely on certain legal doctrines including comparative fault and assumption of risk.
Comparative Fault
Comparative fault is a defense under traditional tort law. A person is expected to conduct himself or herself is a particular manner. The plaintiff is said to contribute to the accident when the plaintiff’s conduct or actions fall below the expected standard and the conduct aids the defendant’s negligence to cause injuries to the plaintiff. The plaintiff will be barred from recovering damages for the injuries if the plaintiff’s negligent conduct is the proximate cause of the injury.
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This principle has resulted in harsh decisions in a few cases. As a result many states have replaced this principle with comparative negligence. Under this principle, the plaintiff’s recovery is reduced by the percentage of his or her fault. In some states this principle has been further modified to bar recovery by a plaintiff who is equally at fault as the defendant. In a few states, if the plaintiff is more at fault, the law does not allow the plaintiff to recover damages for the injuries.
Assumption of the Risk
One other situation involving the plaintiff’s contribution to the harm arises when the plaintiff engages in assumption of the risk of harm. If you go whitewater rafting, skiing, or skydiving, or even if you join a health club with workout equipment, you will be required to sign a release acknowledging that the sport has certain inherent dangers and absolving the owner or instructor of liability if you are injured. Here you have assumed the risk of injury and you generally cannot sue the owner for any injuries you suffer. Assumption of the risk can be implicit as well as express. Assumption of the risk is essentially a negligence analogue to the intentional tort defense of consent. The defense operates as a complete bar to the plaintiff’s recovery if the defendant proves that the plaintiff proceeded to encounter a known risk of harm, thus relieving the defendant of his or her legal duty to the plaintiff. A plaintiff does not assume the risk of harm from the defendant’s conduct unless the plaintiff “knows of the existence of the risk and appreciates its unreasonable character.” The plaintiff’s assumption of the risk is judged by a subjective standard; and if the plaintiff, because of “age, or lack of information, experience, intelligence, or judgment,” does not understand the risk involved in the defendant’s conduct, he or she will not have assumed the risk of harm from such conduct.
The article was originally published here.
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