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What Are the Different Types of Negligence Defenses?

A doctor or hospital could use a patient's negligence as a defense in a medical malpractice case.
Negligence defenses can include assumption of risk in voluntary actions that carry obvious risk, such as sky diving.
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  • Written By: Misty Amber Brighton
  • Edited By: Allegra J. Lingo
  • Last Modified Date: 30 July 2014
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Two of the defenses that might be used in a negligence lawsuit are contributory negligence or comparative negligence. These defenses are used when the plaintiff was also negligent in some way. A defendant could also claim assumption of the risk, meaning the other individual participated in activity that he should have known could cause an injury. If an individual is hurt but does not obtain medical treatment right away, a defense could be failure to mitigate damages. The type of negligence defenses available varies depends on local statutes and the individual circumstances.

Contributory negligence is one of the more common negligence defenses. It is used when the person who suffered damages was also negligent in some way. This could be because he was distracted, driving recklessly, or under the influence of drugs or alcohol. The argument is that if the individual was not participating in negligent behavior, he would not have been hurt because he would have been able to avoid the incident.

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In areas that recognize contributory negligence as a defense, the plaintiff is barred from recovery if he is found to have contributed even slightly to the incident. For this reason, many jurisdictions have now shifted to using comparative negligence as a defense instead. This defense only bars the plaintiff from recovering damages by the percent he is deemed to be at fault. For example, if a plaintiff were deemed two percent at fault and the defendant 98 percent at fault, his damages would be reduced by two percent rather than the entire amount.

Assumption of the risk is one of the negligence defenses used when people are hurt while participating in dangerous activity. This is typically when they reasonably should have known they might be injured. Some examples of this could be sky diving or bungee jumping. It could also be applicable whenever someone knowingly uses faulty equipment to do a job, such as climbing on an unsafe ladder. This defense may be used in many jurisdictions whether or not a waiver has been signed.

People who are injured have a duty to prevent their afflictions from getting worse. Failure to mitigate damages is one of the negligence defenses used when a party neglects to seek medical treatment after an accident. This is because if medical advice is not sought quickly, the condition could become worse. Many courts feel people should be liable only for harm they have caused rather than complications that arise from improper care.

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sunnySkys
Post 5

@indemnifyme - These defenses make sense to me too. The only thing I would say though, is that for assumption of risk, I think they should have to have something signed in order to use it as a defense.

For example, for an activity like sky diving, most people would assume it's kind of risky. I still think that people who go skydiving should be warned about the risks by the company. They should then sign a waiver or something like that. I think that would be an acceptable defense-if there was proof they definitely knew it was a risky activity.

indemnifyme
Post 4

Keep in mind that if you are accused of negligence, you may not be able to use some of these defenses. I took a basic law class quite awhile ago and I think I remember hearing that not all states accept contributory and comparative negligence as defenses.

I personally think that all the defenses mentioned in the article should be allowed. I mean, if someone contributes to an incident of negligence with their own negligence, why should they get to recover damages? It just doesn't seem fair to me!

hamje32
Post 3

@Mammmood - Personally, I think defenses of negligence will be seized upon by just about every defense attorney.

They can be skilled at second guessing the plaintiff and finding the least little thing that they did wrong which could have contributed to the accident.

Mammmood
Post 2

@David09 - We’ve all done things like that. I’m glad it turned out well for you.

The issue I have a problem with is this whole idea of comparative negligence. How do you quantify how much the plaintiff and defendant is at fault?

I think it would be hard to pin values on these things, especially if you are the jury. I can imagine the jurors getting their pencils and papers and calculators together to try to hammer out some hard figures for determining the percentages of fault.

It’s bad enough to have to figure out the dollar damages; now you have to allocate percentages. I don’t know that it does much to mitigate the medical expenses if there are injuries, however.

If you are the one who has suffered the injury, you may still have to come up with extra money to meet the medical bills.

David09
Post 1

Shortly after my wife bought her brand new, shiny minivan, she suffered a dent on the car. What happened was that she parked the car in what was essentially a no parking zone at a tennis club where my son played. It wasn’t officially labeled “no parking” but it was generally understood as such.

She parked it temporarily to go inside and get my son. Outside, however, one of the tennis coaches had accidentally let a cart full of tennis balls get away from his grip; the cart slid and dented the side of the van.

Was it contributory negligence on my wife’s part? Apparently it was, since she wasn’t supposed to be parking the van there, however briefly.

However, there were no signs up. She filed a tort and was able to recover full damages for the repair of the van, fortunately. Had there been any signs, I don’t think she would have won any money.

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