Negligence defendant had a duty to the injured

Negligence simply means a person is not acting as responsibly as they should. There are defenses that can be used to mitigate the degree of responsibility a defendant must assume, with each defense having its own unique elements that reduce liability.

Negligence

Negligence is an action taken by a defendant that causes foreseeable danger or injury to another, like intentionally throwing a banana peel on the floor of the office cafeteria. Someone is bound to slip and fall.

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The elements are pretty simple:

  • The defendant had a duty to the injured party
  • The defendant failed to act on his duty
  • The negligent act caused direct injury
  • The injury should have been reasonably foreseeable

Once the elements have been satisfied, a defendant can be held liable for injuries sustained by the plaintiff. But is every injury sustained at the hands of another party a cause for a negligence lawsuit?Maybe the banana peel tossing pest doesn’t have very good aim? Should he be held fully liable if a co-workers slips? Well – maybe! But not every action is cause for litigation. There are several defenses that can be used to reduce a defendant’s liability or shift a portion of the liability onto the plaintiff.

Negligence Defenses

You had a few too many cocktails during Happy Hour, but somehow you remembered to stop off at the market to pick up cat food. On your way down the pet food aisle, you trip, slip, and slide on your bottom from one end of the store to the other. Ouch!When help arrives, it was witnessed that no slip hazard existed. No spills, no sticky stuff, nothing! But everything, from your bum to your ego, is sore, and you want justice.

Well, not so fast – the law may see it a different way.Although mostly abolished by the courts in modern times, contributory negligence may save the market from a costly lawsuit. This defense holds the plaintiff responsible for their injury if the plaintiff was in any way responsible for it – even if the defendant was more responsible for the injury than the plaintiff.In other words, if you arrived at the market after a night of heavy drinking, that may have been the contributing cause for your fall. Had you not been drinking, it is possible, even probable, that you would have remained upright.

The more recognized defense is comparative negligence. In this defense, the court will apply a percentage of negligence to both parties, depending on the degree of responsibility each has toward the injury.So, in the case of the grocery store slip, the court will want to know a few things:

  • How much alcohol did the plaintiff consume prior to shopping?
  • What type of shoes was the plaintiff wearing at the time of the fall?
  • Was the floor clean and dry at the moments prior to the fall?
  • Was the fall foreseeable?

There are three categories of comparative negligence: pure, modified, and slight-gross.Pure comparative negligence awards the plaintiff damages based on the percentage the defendant is responsible for injury. Let’s say you order a hot bowl of soup at a restaurant. When the server arrives, he warns you that the contents may be hot and to be careful when eating the soup. If you dive right in and take a big spoonful and burn your tongue, the restaurant is not liable for the burn.

You were warned about the soup’s temperature prior to consuming it. Now, had the waiter failed to warn you that the soup may be hot, you may just have a case.In modified comparative negligence, the plaintiff’s negligence must be equal to or less than the defendant’s negligence. A good example would be two drivers who ignore a four-way stop and collide.Finally, slight-gross comparative negligence holds the defendant more liable than the plaintiff if the defendant’s negligence was much greater than that of the plaintiff.

This may help: If you were crossing a set of train tracks and were struck by an oncoming train because the warning lights and guard rail were not in proper working order, you would definitely be able to sue for negligence. It is mandatory that warning lights and guard rails are in working order.Back to the slip and fall in the grocery store. Once the questions have been answered, the court will decide on a percentage of liability for both parties. In this instance, the courts may rule that you are 75% at fault because you had been drinking prior to arrival, and the store was 25% liable for your injuries because they did not notice that you were intoxicated.Sometimes the plaintiff’s actions carry an assumption of risk, and this can be used to mitigate liability. It means when an action is so dangerous that the plaintiff assumes the risk of the activity, and in many cases is unable to recover for damages.

Just look at the back of any sports event ticket.You will see an assumption of risk disclaimer barring recovery for any injuries that may result from simply attending the game. So, if you were to catch a line drive between your upper and lower lip, you, in essence, assumed the risk of injury by sitting in an unprotected area of the stadium. In fact, anywhere you sit is considered an injury risk. If you receive an injury, you are probably going to have to pay your own medical bills!

Lesson Summary

In a nutshell, negligence is an action taken by a defendant that causes foreseeable danger or injury to another.

The elements are fairly cut and dry:

  • The defendant had a duty to the injured party
  • The defendant failed to act on his duty
  • The negligent act caused direct injury
  • The injury should have been reasonably foreseeable

The liability a defendant is responsible for can be mitigated using a few common defenses, like contributory negligence, comparative negligence and assumption of risk.Although contributory negligence is not used in most jurisdictions, it bears defining. This doctrine sides with the defendant in that it does not award the plaintiff any damages if the plaintiff was in any way responsible for the injury.Comparative negligence works differently. This defense allows a plaintiff to recover a percentage of damages based on their role in the injury, and there are three categories to consider.Pure comparative negligence awards the plaintiff damages based on the percentage the defendant is responsible for the injury, like tripping over a clearly marked hazard sign.In modified comparative negligence, the plaintiff’s negligence must be equal to or less than the defendant’s negligence, like drinking old milk that remained on the shelf days after it expired.

Finally, slight-gross comparative negligence holds the defendant more liable than the plaintiff if the defendant’s negligence was much greater than that of the plaintiff, like being hit by a drunk driver.Lastly, assumption of risk can be used to mitigate liability, which is when an action is so dangerous that the plaintiff assumes the risk of the activity, and in many cases is unable to recover for damages. You may find a disclaimer on the back of an amusement park entrance ticket or even a ski lift.

Learning Outcomes

After watching this lesson, you should be able to:

  • Define negligence
  • Identify and discuss the different types of negligence
  • Explain assumption of risk
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