Many people who sustain injury through some fault of their own falsely believe that necessarily defeats any claim against other parties at fault in the same event. This misperception may be due to a defense often raised by opposing lawyers early during settlement negotiations called ‘assumption of risk’ to dissuade pro se plaintiffs from launching formal litigation. While assumed risks seem logically excluded blame placed on others for resulting harm, do not rush to judgment without legal representation.
Negligence Defined in Layperson’s Terms
Simply put, negligence is any act that creates or escalates an unacceptably high risk of danger or harm to third parties. Thus, all parties who act negligently can be held liable for any damages inflicted on others as a direct and proximate cause thereof.
Plaintiffs who bring suit bear a legal burden to prove certain basic facts in order to win claims against defendants based on negligence that include the following points:
-Defendant was legally obligated to exercise reasonable care to protect others from harm or danger.
-Defendant failed to fulfill a legal duty of reasonable care by acting with reckless disregard for others’ safety. A prime example is motorists who drive drunk.
-Defendant’s failure to exercise reasonable care was the actual cause of plaintiff’s harm.
-Defendant knew or should have reasonably known that reckless conduct would cause others harm.
-Plaintiff sustained actual damages that are legally recoverable from defendant(s).
Contributory v. Comparative Negligence
When personal injury or property casualties occur, the first inquiry typically arises to determine who was at fault for causing such damages. Two legal theories were designed to address this question squarely in neutral terms to let courts fairly assign fault for causation to adverse parties in litigation.
Like its label implies, contributory negligence applies if plaintiffs contributed to their own injury by failing to mitigate or eliminate reasonably known unreasonable danger. The underlying rationale is that people share an incumbent legal duty to exercise reasonable care for their own safety. Thus, if they act recklessly, they bear liability for their own injuries that result therefrom, despite involvement or even partial fault of other parties.
If a defendant claims the plaintiff who initially filed suit has sole or partial fault for causing the same damages, it would be considered a contributory negligence defense. For instance, suppose Sue failed to look both ways before crossing a busy street and is struck by motorist Sally as a result. Sally has a valid contributory negligence claim that may reduce or bar Sue’s recovery for damages sustained as an at-fault pedestrian.
A majority of states have adapted a comparative negligence statutory scheme whereby courts may evaluate each party’s relative degree of fault when assessing damage awards. This reflects a dramatic departure from contributory negligence that historically prevailed in the U.S. and totally barred recovery if plaintiffs had any extent of fault for causing their own personal injury incident.
To prevent often grossly unjust outcomes that resulted from strict contributory negligence legal standards, state legislatures began to endorse one of two comparative negligence views.
Modified Comparative Negligence
This is the more common statutory design that prohibits recovery by plaintiffs found to have equal or greater fault for causing their damages. In such states, plaintiffs must be deemed less than 50 percent liable to recover any amount from any other at-fault party (ies).
Pure Comparative Negligence
A plaintiff’s total damage award is reduced by an amount equal to proportional fault that contributed to their own injuries. For instance, if a plaintiff’s total damages were $100,000 and the court deemed him or her 25 percent at fault, net judgment rendered in the plaintiff’s favor will be $75,000.
Whatever negligence standard is applicable in a particular case, prompt action to obtain competent legal assistance is vital to prevent very realistic lost ability to gain full recovery against parties who inflicted harm on virtually innocent victims. Never rely on insurance adjustors or defendants’ lawyers for advice about personal injury claims because they do not have your same interests at heart. By stark contrast, their sole legal and ethical duty is owed to those responsible for your losses. Thus, it might be smart to start your fight off right with qualified help standing solely by your side before you even begin the battle for best odds of final end in a solid victory.