Common Defenses to Negligence – Full Guidelines 2021

Common Defenses to Negligence

Common Defenses to Negligence

Proving negligence and receiving compensation for the resulting harm requires a plaintiff to show that the defendant owed a duty to the plaintiff to act reasonably, the defendant breached that duty, and the breach was a substantial factor in causing harm to the plaintiff. However, there may be situations in which the defendant offers some defense that mitigates or negates the plaintiff’s negligence claim. 

Superseding Causes

This defense is available to a defendant where an independent intervening act by another person cuts of the liability of the defendant. This defense is only available where the intervening cause is not foreseeable or reasonably expected to occur under the circumstances. An independent intervening act that is foreseeable in the specific situation will not be considered a superseding cause, and thus, will not cut off the liability of the defendant. 

Comparative Negligence of the Plaintiff

At common law, contributory negligence on the part of the plaintiff was a complete bar to recovery. However, many jurisdictions today operate under one of two comparative negligence theories. California follows a “pure comparative negligence” theory. Here, a defendant must show that the plaintiff was a substantial factor in causing his own injuries. If successful, the defendant will only owe damages in proportion to his fault. For example, where a defendant is 60% at fault, and a plaintiff is 40% at fault for an injury, the plaintiff will only recover 60% of the damages determined in court.  

Comparative Negligence of a Third Party

This defense will mitigate the legal consequences of the defendant’s actions. Where a defendant alleges and a court finds that a third party is a substantial factor in causing the plaintiff’s injuries, a court will order the defendant and third party to proportionately pay for their contributions to the plaintiff’s harm.   

Assumption of the Risk

The assumption of the risk defense works to shift liability from the defendant to the plaintiff who voluntarily participates in a dangerous or high-risk activity. The defendant must show that the plaintiff knew about the risks inherent to the activity and voluntarily undertook the risk that resulted in the accident and injury. 

Running of Statute of Limitations

Generally, the plaintiff will have two years from the date of the incident that caused injury to file a negligence claim. After the statute of limitations has run, he will be barred from bringing the claim absent some exception such as age, mental or physical incapacity, or later discovery of an injury. 

Consent of Common Defenses to Negligence

The consent defense will be successful where the defendant proves that the plaintiff agreed to and participated in the conduct that caused harm. Where the consent is given knowingly and voluntarily, the plaintiff’s claim will be considered invalid. 

Have You Been Injured as a Result of Someone Else’s Negligence?

If you are suffering from Common Defenses to Negligence injuries as a result of another person’s negligence and are unsure if there is a feasible defense to a negligence claim, call the personal injury attorneys at Jahrmarkt & Associates. Our attorneys will review your case and help you to understand the likelihood of a successful negligence claim. Calling (310) 226-7676 or visiting our website to schedule your free consultation today.