Are There Any Defenses Against Negligence?

Yes. Not all accidents are compensable.

Failure to Prove Negligence

The plaintiff has the burden of proof to establish all 4 elements of negligence: 1) Duty, 2) Breach, 3) Causation, 4) Damages. If the plaintiff fails to prove just one element, the defendant has a defense. If a person acts with reasonable care but still cannot avoid an accident, then the plaintiff may not be able to prove negligence. For example, if a restaurant left a puddle of water on the floor after cleaning the floor that could potentially be negligent. However, if that restaurant put out a wet floor sign to warn people of the danger, then the plaintiff probably cannot establish negligence if he/she were to fall on that wet floor sustaining injury.

Assumption of Risk

If a defendant can show that the plaintiff assumed the risk that would be considered an affirmative defense. This means that if a defendant were doing something dangerous that could cause harm to another person but that person was made aware of the risk and understand that the situation was dangerous and could possibly cause injuries and damages but voluntarily accepted that risk anyway, then the plaintiff will not be able to make a recovery for negligence. For example:

Comparative Fault

If a defendant can prove that the plaintiff contributed to his own injury that would be a defense.   This defense is known as contributory negligence.  For example, if a plaintiff were drinking and driving while proceeding through a green light with the right of way and a defendant ran a red light striking the plaintiff’s vehicle, the defendant can argue that the plaintiff is partially responsible because had the plaintiff been sober, he could have potentially avoided the accident.

Intervening or Superseding Act

If a defendant can show that he may have been negligent, but his negligence did not cause the plaintiff’s injury but another unforeseeable occurrence caused the injury that is a defense. For example, if a defendant strikes a pedestrian, breaking his leg and causing him to be thrown onto a nearby sidewalk and then a moving company drops a piano out of a window on top of the pedestrian, killing the pedestrian, the defendant can show that the moving company’s negligence is responsible for the death of the pedestrian, not the defendant driver because a piano falling out of a nearby window is not a foreseeable occurrence. However, if a defendant strikes a pedestrian, throwing him into the other lane and then another vehicle strikes the pedestrian, killing him because he was unable to avoid the pedestrian because the pedestrian flew into the second driver’s lane out of nowhere after being struck, then the initial defendant driver is still liable for the pedestrian’s death because it is foreseeable that if your vehicle negligently strikes a pedestrian, knocking him down in front of another vehicle, the pedestrian could be run over again, causing death. So even though the defendant may have only caused a broken leg when he struck the pedestrian, it was foreseeable that the plaintiff could be struck again, killing him, making the defendant liable for the pedestrian’s wrongful death even though pedestrian struck by a different vehicle.

If you have been injured due to someone else’s negligence, please don’t hesitate to contact us for a FREE consultation.