You all know that an accident can happen at any time. No matter how careful you are on the road. After an accident, people identify two parties- the defendant and the plaintiff. But plaintiff tries to file a lawsuit against the defendant. For winning this kind of case, a negligence claim is a very useful base. In that case, if you are a defendant in a personal injury case that is based on negligence claims, you have some defenses.
Among them, contributory negligence and assumption of risk are the most effective and fruitful defenses. Here, in this article, we discussed the defenses to the negligence claim, contributory negligence, and assumptions of risk. We hope you will get everything regarding this topic in this article. So, without any delay, let’s get started.
Contributory Negligence and Assumption of Risk – Negligence defenses
Personal injury cases are the most common sort of cases nowadays. The number of this type’s cases are increasing with the number of vehicles increasing. In the case of winning these cases, lawyers consider negligence as the basis of it. In that case, you plaintiff has to prove the elements of the negligence. These elements are as follows:
1. Duty of Care
This is the first element of confirming negligence. Here the main thing is whether the defendant of a personal injury case takes some necessary care of the plaintiff or not. This type of situation is created when a mandatory legal duty is created between the plaintiff and the defendant. Here, the defendant has some obligations regarding the care of the plaintiff.
For example, an employer is responsible for providing a safe place for the employees, or all the drivers are responsible for taking care of their own vehicle so that it can safely be operated. If a plaintiff can prove that defendant didn’t maintain the mandatory legal duties, then the plaintiff will easily be able to prove this duty of care element.
2. Breach of Duty
The next element is a breach of duty. Here the plaintiff has to prove that defendant didn’t maintain the mandatory legal duties intentionally. An example can help you to understand very easily. Suppose you know that your dog is very aggressive and he can bite someone any time, even after knowing that you left your dog in a park and he bites a child. In that case, if the victim files a lawsuit against you based on the negligence claim, s/he will easily be able to prove this breach of duty element.
3. Causation
The third element is causation, and here plaintiffs have to prove that the breach of duty of their case was the main reason for the injury or damages. Here one other thing can be considered; the plaintiff foresaw that his or her action could cause a serious injury or damage to the defendant.
4. Damages
The last one is damages which is the final element of the determination of negligence. Here, the plaintiff has to prove that the injury he got from the accident where the wrongdoer was the defendant and his negligence causes different types of damages like the cost of medical care, wages, vehicle repairing cost, etc.
These are mainly the most important four elements. If a plaintiff can prove all of these elements, he will easily win the case.
But in the view of the defendant, there have three possible defenses to the negligence claim that a defendant uses to win the case. These are as follows
1. Contributory Negligence
There are some situations when the plaintiff and the defendant have the same contribution to the injury of the plaintiff. For example, in a bike accident between two bikes, the driver of bike A was speeding, and the diver of bike B was driving under the influence. In this accident, both drivers were engaged in negligent risk-creating behavior.
Here, the negligence of the plaintiff is called Contributory Negligence in Personal Injury. If a defendant can prove that the plaintiff has the minimum contribution to his or her damage or injuries, the plaintiff could not be recovered by the defendant.
2. Comparative Negligence
According to the comparative negligence personal injury, the damages should be calculated, and the defendant will pay the exact amount that s/he is responsible for. Like, in a car accident, the plaintiff is 40% responsible for his injury, and the defendant conducted the remaining 60% of damages. Here, the defendant will only pay the 60% amount of money the plaintiff needs for recovery. This formula is according to pure comparative negligence.
There is another type of comparative negligence where the plaintiff can claim negligence or get compensation only if the defendant is 51% responsible for his injury, which is called partial comparative negligence.
3. Assumption of Risk
It is the third and final negligence defense. If the plaintiff is voluntarily involved in dangerous situations that he knows very risky, it will be considered voluntary consent. It means he had the choice to avoid it. Here, if the defendant can prove that the plaintiff has the voluntary consent and the option to assume the risk of entering in that situation, the defendant will easily win the case.
This voluntary assumption can be divided into two sections- implied and expressed. Implied consent is basically associated with sports. For example, in a car racing competition, the racer is implicitly at risk of serious injury and even death. In that case, he can never file a lawsuit against the organizer of that sport.
Besides, expressed consent can be written, verbal, or any expressed manifestations. Here the defendant must show that the plaintiff has the actual knowledge of danger which is involved in the circumstances for which he is injured. Secondly, the plaintiff understood and appreciated the risk there, and lastly, he voluntarily participated there.
Conclusion
People always try to help the plaintiff of a case, but we should also think about the defendant. Sometimes defendants are also innocent. From their point of view, we should consider some defenses. Here in this article, we have discussed those defenses of the personal injury cases, which are based on negligence claims- contributory negligence and assumption of risk.
Hopefully, this article will help you a lot in your personal injury cases. Do you have any other things to know regarding this topic? Feel free to ask in the comment section.