Defenses Against Negligence: Strategies And Their Legality

There are several defenses to negligence claims, and they depend on the facts of the case and the issues in dispute. The three most common defenses are contributory negligence, comparative negligence, and assumption of risk. Contributory negligence occurs when the plaintiff's conduct falls below the standard necessary for their protection, and it coincides with the defendant's negligence in causing harm to the plaintiff. Comparative negligence, on the other hand, reduces the plaintiff's recovery based on the percentage of fault attributed to each party. Assumption of risk is when a plaintiff voluntarily engages in a dangerous activity, fully aware of the risks involved, and therefore cannot later sue for injuries. Other defenses include mistake of fact, lack of proximate cause, and justification.

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Contributory negligence

The doctrine of contributory negligence has been criticised for leading to harsh outcomes and has been replaced in many jurisdictions by the concept of comparative negligence. Comparative negligence considers the relative fault of both parties and reduces the plaintiff's damages award proportionally. For instance, if a plaintiff is found to be 30% at fault, their damages will be reduced by 30%. This approach aims to provide a more equitable distribution of liability by acknowledging that multiple parties may share blame for an accident.

In some jurisdictions, the defendant must prove the plaintiff's negligence, while in others, the plaintiff must disprove their own negligence. Additionally, even if the plaintiff was negligent, the defendant may still be held liable if they had the "last clear chance" to prevent the injury. This means that if the defendant was the last person with a clear opportunity to avoid the harm, they can be held responsible despite the plaintiff's negligence.

The applicability of contributory negligence varies across states and countries. For example, in the United States, some states continue to apply pure contributory negligence, while others have adopted a modified version or transitioned to comparative negligence. In Australia, most jurisdictions have enacted legislation that covers findings of non-absolute contributory negligence, also known as comparative negligence.

Comparative negligence

There are three types of comparative negligence rules: pure comparative negligence, modified comparative negligence, and slight/gross negligence. Pure comparative negligence allows the plaintiff to recover damages even if they are assigned a high percentage of fault for the accident. For example, a plaintiff who is 90% to blame for an accident could still recover 10% of their losses. Twelve states, including California and New York, follow this rule.

Modified comparative negligence, on the other hand, disallows plaintiffs from recovering monetary damages if they are assigned fault beyond a certain percentage. This type of comparative negligence has two variants. The first variant allows plaintiffs to recover only if their negligence is not greater than the defendant's. In some states, this threshold is set at 50% or 51%. The second variant allows plaintiffs to recover only if their negligence is less than 50% of the combined negligence. The majority of states follow the modified comparative negligence principle.

Assumption of risk

The assumption of risk can be either express or implied. Express assumption of risk occurs when a plaintiff explicitly agrees to accept the risks involved in an activity, typically by signing a liability waiver or release form. These written agreements are contracts in which the individual acknowledges the potential dangers and agrees not to sue for any resulting injuries. For example, skydiving, rock climbing, or joining a gym often require signing such waivers. However, these waivers are not always legally binding and courts may refuse to enforce them if they are poorly worded, cover risks beyond the scope of the activity, or if the injury resulted from reckless or intentional misconduct.

Implied assumption of risk, on the other hand, is inferred from the plaintiff's conduct and the circumstances surrounding the injury. It can be further divided into primary and secondary implied assumption of risk. Primary implied assumption of risk applies when the risks are inherent to the activity, and the defendant has no duty to protect the plaintiff from them. For example, participating in sporting events or other inherently dangerous activities. In this case, the defendant cannot be found negligent as they had no duty of care to the plaintiff.

Secondary implied assumption of risk occurs when the defendant does have a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty. For example, a shopper who sees a spill on the floor at a store entrance but decides to walk across the slippery area anyway. In this scenario, the plaintiff's decision to encounter a known risk is treated as a form of fault, reducing their financial award. Courts often consider the reasonableness of the plaintiff's choice to encounter the hazard.

It is important to note that the assumption of risk defence has been replaced by comparative negligence in many jurisdictions. In "pure" comparative negligence jurisdictions, a plaintiff can recover damages even if they are mostly at fault, but their award will be reduced by their percentage of fault. In "modified" comparative negligence jurisdictions, a plaintiff can only recover damages if their fault is below a certain threshold, typically 49% or less.

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Mistake of fact

For example, in a hypothetical scenario, an individual finishes dining at a restaurant and heads for the door. They grab what they believe to be their coat, put it on, and drive home. Only upon arriving home do they realize they have taken someone else's coat by mistake. In this case, the taking of the coat could be excused due to a mistake of fact, as there was no intention to steal. However, if the individual decides to keep the coat after realizing it is not theirs, they have now formed a criminal intent, and the mistake of fact defense would no longer be applicable.

It's important to note that for a mistake of fact defense to hold up in court, the defendant's mistake must be reasonable and honest. The burden of proof then falls on the prosecution to prove beyond a reasonable doubt that the defendant did, in fact, have the requisite intent to commit the crime.

Lack of proximate cause

A defendant's negligence must be the cause of injury for them to be held liable for the harm and loss suffered by the injured party. This is known as proximate cause.

Proximate cause is an actual cause that is also legally sufficient to support liability. In other words, the defendant's actions must have directly and proximately caused the plaintiff's injuries. If there is no proximate cause between the defendant's negligence and the plaintiff's injuries, there is no legal case.

For example, suppose a car driver hits a pedestrian, causing non-fatal injuries. While in an ambulance, a truck driver hits the ambulance and kills the pedestrian. In this case, the proximate cause may play a critical role in determining each driver's liability for the pedestrian's death. A jury may find that the car driver's negligence did not constitute a proximate cause of the pedestrian's death, as the car driver could not have reasonably foreseen that the pedestrian would subsequently be killed when a truck hit their ambulance. Instead, the truck driver's negligence may be the proximate cause of the pedestrian's death, as they could reasonably foresee that hitting another vehicle could kill its occupants.

In some states, the doctrine of pure contributory negligence is used, which may deny compensation to a victim who is even one percent at fault for a car accident. An exception to this is the last clear chance, when the defendant could have avoided causing injury by using ordinary care. For example, a pedestrian crossing the street despite a visible "don't walk" sign.

In many states, contributory negligence defenses have been replaced by comparative negligence, which reduces a plaintiff's recovery by the percentage they are at fault for their damages.

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