How An Injury Lawyer Can Help Counter, Negate, Or Diffuse The Other Side’s Defenses
A personal injury lawyer will also be very keenly aware of what defenses the other side will assert against you in an effort to escape liability for the harm you or your loved one suffered. Very specialized rules apply with regards to defenses in personal injury actions, depending on the state where your case is brought.
In the realm of negligence causes of action, some key defenses exist. Contributory negligence involves virtually all of the same factors as negligence. The only significant difference is that negligent conduct involves creating an unreasonable risk of harm to another, while contributorily negligent conduct involves creating an unreasonable risk of harm to oneself. Only five jurisdictions, as of the writing of this article, have not adopted some form of comparative negligence. However, the conduct which operates as a complete bar to recovery under contributory negligence is the same as that which will merely lessen a plaintiff’s recovery under pure comparative negligence. The basic definition of the conduct remains the same. That is doing, ”that which an ordinarily prudent person would not do under the circumstances, or the failure to do that which an ordinarily prudent person would do under the circumstances.” Conduct which amounts to contributory negligence by a plaintiff is the same as that which is prohibited under comparative negligence principles, and only the impact of such conduct is different.
Thus, your personal injury lawyer may make reference to some older decisions from states where the law has since changed to comparative negligence, but which previously applied contributory negligence. This is because the prohibited conduct in those prior decisions still has validity in a comparative negligence analysis and, more importantly, is the same as that which would be used in those states where the contributory negligence doctrine is still applied. Therefore, while the majority of the cited decisions in this discussion are from jurisdictions that apply contributory negligence, at least as of the writing of this treatise, there will be some citationss to decisions from states that now follow comparative negligence.
Proof of contributory negligence involves proof of a duty to protect one’s own safety, breach of the duty, and causation. Contributory negligence, therefore, is conduct by a plaintiff, which does not meet the standard of care which one’s own protection requires and which, joined with the defendant’s negligence, is the proximate cause of plaintiff’s injury. The ultimate decision of whether conduct constitutes contributory negligence is normally a question of fact for the jury. Generally, the court must charge the jury about the legal standards to be applied in determining whether a particular type of conduct constitutes contributory negligence and, usually, the effect of a determination that the plaintiff was guilty of contributory negligence.
As previously stated, in the few jurisdictions which have not adopted the doctrine of comparative negligence, the contributory negligence of the plaintiff is a complete bar to recovery from a negligent defendant. Contributory negligence, however, may not be a defense to certain statutory violations by defendant. For example, the plaintiff’s negligence may not bar an action against a defendant if based on a statute the purpose of which is to protect a person against their own negligence. Moreover, if the evidence establishes some condition affecting a plaintiff’s ability to exercise care for self-protection, such as the fact that the plaintiff is a child, or is physically handicapped, or that the plaintiff acted in an emergency, this factor will be considered in determining whether plaintiff acted reasonably. In such circumstances, conduct which ordinarily would amount to contributory negligence may not qualify as such. The doctrine of last clear chance may, under some circumstances, also allow a plaintiff to avoid the consequences of contributory negligence.
Contributory negligence is not only predicated upon an injured party’s negligent failure to exercise care when a danger is known. It may also be based on that which an injured party should have reasonably known. The acts and omissions which constitute contributory negligence depend upon the facts and circumstances at the time of their occurrence and include: the plaintiff’s knowledge about a dangerous condition, the plaintiff’s control over the situation, the relevant statutes and the public policy of the jurisdiction. All of these factors are considered when a court charges the jury about the standard of care that a plaintiff must meet to avoid contributory negligence. Although usually the jury decides whether a plaintiff was guilty of contributory negligence, where reasonable men could not disagree about the plaintiff’s negligence or lack of negligence, the court will determine the issue as a matter of law.
If the conduct of the defendant is found to be willful and wanton or so grossly negligent so much so that it implies wantonness, the plaintiff’s contributory negligence may not be a defense to liability. If, however, the plaintiff’s conduct is also willful and wanton, or of such a nature that it induces and becomes a part of the defendant’s misconduct, it may be a sufficient defense despite the defendant’s willful and wanton conduct.
In addition, a plaintiff’s negligence may affect recovery where, although he or she did not cause the accident, they aggravated the damages. This, being a damages factor, will be applied by a court which recognizes the concept, regardless of whether contributory or comparative negligence is followed in the particular jurisdiction. Under the doctrine, a plaintiff whose negligent conduct results in increased damage may not recover damages that would not have resulted had that person acted reasonably. A classic example of this is where a plaintiff is injured in an automobile accident and the argument is made that the injuries were aggravated by not wearing a seat belt. Similarly, a plaintiff who suffers a broken bone in an accident may suffer additional injuries by refusing medical treatment and will not be allowed to recover for his own folly. The converse of the plaintiff aggravating his or her injuries may also occur. Where plaintiff may have been contributorily negligent but defendant’s subsequent conduct causes greater injury, plaintiff’s culpable conduct may be inapplicable to the claims for damages resulting from defendant’s subsequent actions.
In many jurisdictions, a plaintiff does not assume the risk and is not automatically negligent if a known danger is carefully confronted under circumstances where an invitation is extended to enter a dangerous place and the conduct is reasonable under the circumstances. Whether the plaintiff has been careful and reasonable in his or her conduct is usually a question of fact for the jury.
Another defense which may result in less damages being awarded to an injured plaintiff is the rule of comparative negligence under which a plaintiff’s recovery is diminished, but not necessarily barred, by contributory negligence. Some jurisdictions have adopted comparative negligence by court decision and others by statute. The various forms of comparative negligence differ in approach. Some, usually referred to as pure comparative negligence, provide for the apportionment of damages based on the comparative fault of the parties, regardless of their relative degree of fault. Others, usually referred to as modified comparative negligence, provide for the apportionment of damages based on comparative fault only when the defendant’s relative degree of fault exceeds a threshold requirement. The effect of comparative negligence on the substantive and evidentiary rules of negligence depends on the type of comparative negligence. In apportioning fault between the parties, at least one court has listed various factors to be considered, and generally the question of comparative fault is for the jury.
The pure form of comparative negligence has been adopted by statute and court decision in numerous jurisdictions. The model for pure comparative negligence is simple: in a negligence action a plaintiff who is guilty of contributory negligence or fault may nevertheless recover from the defendant, but the plaintiff’s recovery is reduced by his degree of negligence or fault.
Under modified comparative negligence, the plaintiff is allowed to recover as long as the plaintiff’s negligence is not greater than the negligence of the defendant. The plaintiff who is allowed to recover under this system will, of course, have any damages reduced in proportion to the fault attributed to him or her. Damages awarded under modified comparative negligence may be complicated by the concepts of joint and several liability and contribution. In a jurisdiction where joint and several liability is applied, this may result in an unfair imposition of liability under the ”combined fault rule.” This is because a large award may have to be paid by a defendant whose fault is minor, but whose fault is added to that of an insolvent defendant whose fault is much greater, and the total fault of both defendants exceeds the fault attributable to plaintiff. In such a situation, plaintiff will recover the entire damages from the solvent minor-fault defendant, reduced only by plaintiff’s degree of fault. Some jurisdictions avoid this by providing in their statutes that defendants are only severally liable for the percentage of their fault. Additionally, contribution among jointly liable tortfeasors will assist defendants in paying only their fair share, where other responsible parties are solvent.
As you can see, this is a very complex area of the law, which is rendered even more complicated by the impact of the various comparative negligence theories. In conclusion, it is suggested that if you suspect that you or a loved one were injured in any of the ways described above, either to your physical person or property, that you consult with a personal injury lawyer at the Law offices of David I. Fuchs. Call us at 800-570-2858 for a free case evaluation.