Defenses Against Negligence

The most effective defenses against negligence is to prove that the defendant did not owe the plaintiff a duty of care, did not cause the damages, or exercised reasonable care in their actions. Alternatively, if the defendant cannot prove they were not negligent, they may use one of three doctrines to limit their liability.

Assumption of risk
Contributory negligence.
Comparative negligence

In this article, we will discuss these three doctrines as defenses against negligence.

Contents show

Assumption of Risk

One of the defenses against negligence claims is to show that the plaintiff knew the risk of an activity but engaged in it regardless. By doing this, the plaintiff assumes the risk and cannot claim damages from the defendant.

To use this as a defense against negligence, the defendant must prove that the plaintiff had actual knowledge of the danger and accepted the risk. This can be proved if the plaintiff would have seen the activity before engaging or if they signed a contract or waiver that stated the risk.

Assumption of risk cannot be used as a defense against negligence if an unknown danger occurs. For example, faulty machinery, a slippery floor without signage, or any danger that could not reasonably be foreseen.

Contributory Negligence

Contributory negligence is one of the most common defenses against negligence. It is the practice of proving that the plaintiff’s behavior was also negligent and if they hadn’t behaved in a negligent manner, they would not have sustained injuries.

This defense against negligence is used if a plaintiff uses something in a way that it is not designed for. Some states, like California, will determine the percentage of fault of each party and award damages based on that percentage. In some states, successfully using this defense against negligence will wipe any compensation.

The defendant should be aware of the “last clear chance” when using this defense against negligence. Even if the plaintiff was in the wrong when they were injured, if the defendant could have avoided the incident if they were using ordinary care, then they cannot use this defense against negligence.

Contributory negligence has been replaced in many states by comparative negligence as it has lead to some harsh rulings.

Comparative Negligence

In many states, comparative negligence is replacing contributory negligence as one of the most common defenses against negligence. States like California prefer to assign portions of blame to each party to ensure the plaintiff is not left without any compensation to cover their damages. Instead, this defense against negligence will just reduce the defendant’s compensation payment by the percentage of the plaintiff’s fault.

Every state that allows comparative negligence as a defense against negligence will calculate damages in one of the following ways:

Pure comparative negligence – The rule is simple, and the plaintiff receives a percentage of damages equal to the percentage of the defendant’s fault.
Modified comparative negligence – If the plaintiff’s negligence is equal to or less than the negligence of the defendant, they will receive a percentage of the damages. If they hold the majority fault, then they will not receive any damages.
Slight-Gross comparative negligence – If the plaintiff’s fault can reasonably be considered slight and the defendant’s fault can be reasonably considered gross, then the plaintiff will receive damages.

If you are using comparative negligence as a defense against negligence in California, this state uses pure comparative negligence.