If charged with negligence, the law allows you to defend yourself in a number of ways. Was it really your fault or the plaintiff has some blame as well? This article covers the defences to negligence, namely comparative negligence, contributory negligence and assumption of risk.
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What Is A Comparative Negligence Law?
Comparative negligence, also called non-absolute contributory negligence outside the US, is a partial defence that reduces the amount in damages that the defendant has to pay to the plaintiff. The reduction in damage amount is dependant upon the extent to which the plaintiff is to blame for the injury as well. The comparative negligence law allows the defendant to not pay for all the damages since the plaintiff did not take necessary precaution on his or her part, which was the duty of the plaintiff.
Comparative negligence has three main types – pure, modified and slight-gross negligence.
Pure Comparative Negligence
Under the principle of pure comparative negligence, the plaintiff is only awarded as many damages as the defendant is responsible for. That is, the plaintiff may be able to recover damages even if he or she were at fault.
Modified Comparative Negligence
Modified comparative negligence is a legal doctrine where the plaintiff is awarded the damages if his or her own negligence is less than or equal to the negligence of the defendant. Thus, the amount of damages that the plaintiff may recover is reduced by the amount of negligence that he may be found guilty of.
Slight gross negligence is when the plaintiff’s negligence is considered ‘slight’ as compared to the defendant’s which is considered ‘gross’. The plaintiff is only awarded damages if this distinction holds.
What Is Contributory Negligence?
Contributory negligence is a form of defence in negligence cases. This is used when the plaintiff is also responsible for the damages incurred to him by the defendant’s negligence. It occurs when the plaintiff overlooks some of the measures necessary for his safety as well. Simply put, it means that the plaintiff might have avoided injury despite the defendant’s negligence, had he or she not been negligent themselves. If proven true, contributory negligence bars the plaintiff from getting any amount of damages. Since the contributory negligence rule can be so relentless, most countries have moved to adopt the comparative negligence law.
Assumption Of Risk
Assumption of risk prevents plaintiffs from recovering the damages when they intentionally proceeded to engage in an activity that they knew carried risk of injury and harm. This is for example the case in an amusement park ride. When the individual embarks on the ride, they are aware of the health risks it may have. It could cause nausea, unconsciousness, dizziness, and fear etc. If the defendant chooses to take the ride despite the risks involved, he or she is assuming the risk involved is such that they can bear it. They may not have a strong position in a lawsuit if they suffer physical discomfort that may cause them economic loss.
Comparative Negligence Vs. Contributory Negligence
Comparative negligence is also known as non-absolute contributory negligence. It aims at awarding the amount in damages according to the amount of negligence of the parties involved in the case. The idea is to take away some of the harshnesses of contributory negligence, whereby the plaintiff is not eligible to receive any amount in damages incurred even if he or she is 1% at fault for the injury.
Contributory negligence deems the plaintiff disqualified to receive any compensation if he or she is found to be the slightest bit a part of the injury caused. In comparative negligence, the two parties faults are compared and the compensation is awarded accordingly.
What Is An Example Of Comparative Negligence?
Examples of comparative negligence vary between the types of comparative negligence. Different states follow different levels of negligence. For instance, a total of 13 states including California and New York follow the pure comparative negligence rule. If the plaintiff in California is found 99% at fault for the injury, he is still liable to receive 1% in damages. For instance, consider person A who got injuries in an auto accident in New York. Person A was driving down the road when they were hit by an out of control vehicle. Person A files for $10,000 in damages. After the facts of the case are brought forth, the court sees that Person A was texting while driving and hence was not able to see the out of control vehicle coming their way. Person A is held 70% responsible for the accident and is awarded only $3000 in damages.
A total of 33 states follow the modified comparative negligence rule. This doctrine sets a benchmark for the amount in damages the plaintiff can be responsible for and still be compensated. For instance, 12 of the 33 states follow the 50% bar rule. This means that if the defendant is found 50% responsible or more for the injuries caused, they will not be granted relief. In the rest of the 21 states, the 51% bar rule is followed which works the same way as the 50% rule. In these states, Person A from the previous example, who was 70% responsible for the accident, would not be compensated for his or her injuries.
Only one state, South Dakota follows the slight and gross negligence rule. This rule does not assess negligence in percentages, rather, it declares the negligence to be either ‘slight’ or ‘gross’ in causing the accident. If the plaintiff was only slightly negligent in the injuries caused whereas the defendant was grossly negligent, the plaintiff can secure a greater reward. Alternatively, if the plaintiff has more than a slight contribution to the accident, his compensation will be reduced. For instance, if a drunk driver hits a jaywalker, the jaywalker will get less than the claims he would get if was using a zebra crossing.
Comparative negligence law is a defence that is used in lawsuits and cases of negligence to award the burden of damages according to the amount of negligence by each party.