Do you have a legal obligation to provide for the care of those around you? You might be surprised to learn that you may in fact be liable for someone else’s injuries if you fail to uphold this legal duty in certain situations.
Getting sued for your negligent actions isn’t a foolproof strategy for the alleged victim, though. If you’re facing a lawsuit, then there are several potential defense strategies you could use to your advantage. Some legal defenses can exonerate you completely, while others can at least reduce the amount of damages you’re liable for overall.
Getting informed about the various defenses to tort liability isn’t enough, though. You’ll also need to consider the circumstances surrounding the tort, the facts the other party has against you, and more to determine which legal defense would be most successful in your situation. The good news is that an experienced attorney can help you make the right decision.
Contributory or comparative negligence is one legal strategy you may be considering using in your tort situation. Learn everything you need to know about this defense strategy and how to use it successfully below.
Infographics
Scroll down to our Defenses to Tort Liability infographic:
What is Negligence?
A tort is an action or inaction that causes injury or harm to another person. This other party can seek out legal recourse for this civil wrong in civil court. Courts have the authority to order the responsible party to pay damages in the form of compensation or they can order an injunction to resolve the tort. An injunction is an official court order to compel a person to stop acting in a certain way.
Negligence is a type of tort in which one party fails to uphold a legal duty of care towards another party, giving rise to an injury or loss. In order to establish negligence, the following elements must be proven:
- A legal duty to provide for the care of the other party was established prior to the accident
- The defendant failed to uphold their duty to care for the plaintiff
- The breach of duty led to an accident and injuries or harm
- The plaintiff suffered damages as a result of the injury
Most issues of negligence are resolved when one party issues compensation to the other party. The plaintiff requests damages, which could be compensatory or punitive. Compensatory damages are meant to restore the defendant back to the financial state they were in prior to the accident. These often include things like medical bills, property damage, or lost wages. Punitive damages are meant to penalize the defendant when they’ve acted extremely recklessly. Courts don’t award punitive damages that often, but they will do so in extreme situations.
The most common example of a negligence claim would be a personal injury lawsuit that happens after a car accident leaves one party severely injured. The following types of claims also fall under the scope of negligence claims: medical malpractice, product liability, premises liability, and dog bite accidents.
Throughout the lawsuit, the plaintiff can utilize various defenses to tort liability to eliminate or reduce the compensation they owe to the other party. These defenses also come in handy during the negotiation process, too. One common defense is to use comparative and contributory negligence standards to reduce your overall liability.
What Are Comparative and Contributory Negligence?
Two different legal theories exist in different states when it comes to negligence. Some states adhere to a comparative negligence standard, while others follow a contributory negligence standard. This distinction is important because it will determine what types of defenses to tort liability you can use if you’re accused of being negligent. It could also dictate how much compensation you can seek out if you’re considering seeking out a lawsuit.
A good lawyer will help you determine which negligence standard courts in your state adhere to. Below, we’ll give a brief overview of these two standards.
What is Contributory Negligence?
Contributory negligence is a very strict system. Under this standard, a plaintiff can only seek out compensation for an accident when the other party was 100% at fault and negligent for the situation. In other words, if the plaintiff is even the slightest bit at fault for the accident, then they won’t be able to recover anything from the other party.
For instance, let’s say you were involved in a car accident. As authorities investigate what happened, they uncover that the other driver was speeding and also ran a red light before hitting your car. Despite that, you were talking on the phone when the accident happened. In a contributory negligence state, the fact that you contributed to the accident would mean that you would be ineligible to seek out compensation.
This type of negligence standard is tough, and that’s one reason why it isn’t used by many states. Only five states currently adhere to a contributory negligence standard. These states include North Carolina, Washington D.C., Alabama, Maryland, and Virginia.
Contributory negligence is a good defense against tort liability because if you can prove that the plaintiff was even 1% at fault for the accident, then you can prove that you’re not liable for damages under the contributory negligence standard.
What is Comparative Negligence?
Unlike contributory negligence, the comparative negligence standard gives plaintiffs the ability to pursue compensation even when they are partially at fault for an accident. Under this legal standard, the overall compensation award is usually reduced based on the percentage of fault the plaintiff contributed to an accident.
For instance, let’s say you and another driver get into a car accident. As authorities investigate the crash, they discover that the other driver was speeding, intoxicated, and ignoring traffic laws but you were texting on your phone at the time of the crash. If this type of situation were to make it to the courts, it would be apparent that both parties were at fault. It’s likely, though, that most courts would rule that the intoxicated driver was more reckless and negligent.
Comparative negligence is a good defense strategy against a negligence claim because the defendant can reduce the overall liability they have by arguing that the plaintiff was also partially at fault.
Most states adhere to a form of comparative negligence, but there are two main categories within the states: pure comparative negligence and modified comparative negligence.
Pure Comparative Negligence
In pure comparative negligence states, plaintiffs are able to seek out compensation no matter how much fault they contributed to the accident. With that in mind, the plaintiff can only seek out a percentage of compensation based on the percentage of fault attributed to the defendant throughout the claim.
For instance, if a serious car accident occurs and the defendant was only 10% responsible for the crash, then the plaintiff could still seek out a lawsuit. The plaintiff would only be able to seek out 10% of their overall damages from the other party, though.
13 states currently adhere to a comparative negligence standard.
Modified Comparative Negligence
A modified comparative negligence standard allows plaintiffs to seek out compensation when they’ve contributed to an accident, but there’s a certain threshold they must be aware of. This threshold varies from state to state, but it’s usually either 50 or 51%. In other words, a plaintiff can seek out compensation so long as they are less than 50% at fault in an accident.
Of course, it can be a real challenge to prove and argue how much fault each party contributed to the accident. That determination might have to be made by a judge.
33 states currently follow modified comparative negligence standards. Among those states, 10 use the 50% threshold of fault. The remaining 23 states all use a 51% threshold of fault.
If you need more details about how comparative negligence might play a role in your negligence claim, then it’s advised that you reach out to an attorney for more guidance.
Can I File a Negligence Claim Without an Attorney?
The short answer is ‘yes’. Hiring an attorney is not necessary if you’re considering seeking out a negligence claim in court. It’s also not necessary to hire an attorney if you’re getting sued. You are able to legally represent yourself throughout any legal challenge.
While you can attempt to DIY your way through a court case, it’s not advised.
Here’s what a quality injury law firm can offer you if you’re filing a negligence claim against someone else:
- Invaluable legal counsel and advice
- Assistance filing your legal paperwork
- Help with collecting evidence, documentation, and proof of your claims
- Equalizing the playing field if you’re suing a big business or company with a legal team
- A faster claim
- Years of experience that can help you avoid mistakes and win your claim
- Security knowing that your legal matters are in good hands
- Better negotiations between you and the other party
- Maximized compensation.
Similarly, if you’re defending yourself against a negligence claim, then a lawyer can provide invaluable legal counsel. A defense attorney will work with you to develop a defense strategy, collect evidence to back up your claims, file the right paperwork, speak with the other party about potentially negotiating a settlement, and even represent you in court, too.
If you opt not to hire a personal injury attorney, then you’ll have to face all these legal hurdles on your own. What’s more, one simple mistake could end up derailing your claim entirely. Often, your day in court is your one shot at justice. If you haven’t prepared appropriately or formulated a good defense strategy, then you could wind up forfeiting compensation that’s rightfully yours or paying compensation that you could’ve avoided liability for.
Are You Considering Using This Defense Strategy?
Are you currently pondering over the various defenses to tort liability and how they can benefit you in your situation? If so, then it’s highly advised that you consult with a quality defense lawyer before deciding on which legal defense strategy to use.
Contributory and comparative negligence aren’t the only options available to you. Depending on your circumstances, you might also want to consider strategies like self-defense or assumption of risk. What’s more, statutory immunity might apply if the accident happened years ago.
A good defense lawyer will help you decide which defense strategy to use. What’s more, they’ll help you compile evidence to support your claim, field any negotiation attempts, help you file legal paperwork, and represent you if your claim goes to trial. Are you interested in speaking one-on-one with a lawyer about your situation? Contact our office now to get started.
Infographic
