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In the American civil justice system, the law of torts relates to situations where the wrongful conduct of one party causes harm to another. Tortious conduct recognized at law can be based on acts that are either intentional or negligent. Examples of intentional torts are defamation, assault or battery, fraud, and interference with another party’s contractual or advantageous relationships. A negligence tort refers to those circumstances under which the law will hold one person, who has a duty of care to another, responsible for any harm his negligence may have caused the injured party.
A negligence tort can be defined as the failure of an individual to exercise reasonable care to guard against both risks that were known to cause possible harm, as well as those that an individual should have known would create an unreasonable risk of harm to third parties. In order to prevail in a negligence tort action, a plaintiff must prove, by a preponderance of the evidence, that the defendant was negligent, or failed to exercise due care in the circumstances. A plaintiff must also show that the defendant's negligence caused his injuries, and that he has suffered injuries or ascertainable damages as a result. Negligence encompasses a range of causes of legal actions, including personal injury, medical malpractice, and product liability lawsuits.
There are several affirmative defenses a defendant can raise against a negligence tort claim. The two most prominent are assumption of the risk and contributory negligence. Assumption of the risk is a defendant that asserts that the plaintiff was aware of the risk or danger, but nonetheless acted in a reckless manner, such that any injuries sustained cannot be considered to be caused by the defendant. Examples might include reckless behavior in the face of a known danger, such as smoking next to a gas pump or using a metal ladder in the presence of power lines.
A defendant can raise contributory negligence as a defense if the plaintiff’s own negligence was the proximate cause of his injuries. Examples could include a plaintiff who is involved in an automobile accident, but was intoxicated at the time of the incident. A finding of contributory negligence by a jury can act to defeat the negligence tort claim of the plaintiff. In some jurisdictions, the common law doctrine of contributory negligence has been replaced by a statutory scheme of comparative negligence. Under the theory of comparative negligence, a jury will assess — on a percentage basis — the amount which the plaintiff was responsible for his own injures, and any damages awarded will be reduced accordingly.
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