Accidents can often be a messy affair. There’s always a lot of paperwork and legal technicalities that need to be covered by both parties. Plus, the threat of a lawsuit over injuries can be something that can cause quite a bit of headache.
Personal injury lawyers from Lynnwood to Ohio know this well — and while they may have limited control over how the accident happened, they can have influence as to how the lawsuit can go. One of the most-cited defenses (and certainly something you can use) is called contributory negligence.
What is Contributory Negligence?
Contributory negligence is a form of affirmative defense often used in civil lawsuits to either lower the amount of compensation that the defendant has to pay, or ideally, to achieve dismissing the case entirely. However, since abolishing the case can often lead to harsh results for the losing party, a “comparative negligence” approach has been adopted by courts.
The burden of proof when using this defense differs from different jurisdictions. In some states, it usually lies on the plaintiff. This gives the defense counsel extra time to prepare if necessary. In other states, the defendant has to successfully prove that the plaintiff was negligent to a certain degree as well.
When Can You Use Contributory Negligence as a Defense?
Ideally, the best time you should use it for your defense is when you have solid proof that the accident or injury you caused was partly the plaintiff’s fault as well. However, keep in mind that this may lead to longer cross-examination, so if you are going to use it as a defense, prepare for a long haul.
Always be sure of your position before doing it. With the ubiquity of things like smartphones and other public recording devices, it can be easy to prove — or disprove — your case if the corresponding evidence is acquired. If in doubt, it’s best to ask your lawyer or personal defense attorney.
There are also some jurisdictions that do not allow this as a defense unless a certain percentage of contributory negligence is reached by the plaintiff (for example, 50% of their injuries were entirely their fault). The defense needs to be familiar with both the extent of the plaintiff’s injuries and the allowed percentage for them to use their negligence as a basis for the case.
What Happens If The Defense Succeeds?
If the judge rules that the plaintiff has also contributed to their injury through their actions, then the amount of your compensation to them will be adjusted accordingly. Some jurisdictions may follow different criteria to adjust the rate, while others may stick to a flat percentage. On some rare occasions, the judge may allow the defendant to set their own compensation.
Finally, it’s important to not confuse contributory negligence to joint and several liability, which holds more than one defendant responsible for their injuries. The most prudent course of action if multiple parties are involved is for the plaintiff to sue them as one party rather than individuals.
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