When you’ve been hurt because of the carelessness or negligence of another person, it can seem like an open and shut case. That’s seldom the reality, though, as the defendant will often have some policy of insurance that provides some level of coverage, and will have lawyers retained by the insurance company whose job is to diminish or defeat your claim. Accordingly, you can expect that those attorneys will raise a number of potential defenses to liability. Those defenses generally allege either that you (the plaintiff) caused the accident or that your injuries did not arise from the accident.
Contributory and Comparative Negligence
It’s not uncommon that both parties involved in an accident were negligent in some way—the driver who hit you may have been speeding, but you may have failed to come to a complete stop at a red light. In reality, it’s almost always possible to assert that, had you done something differently, the accident would not have occurred. For centuries, this doctrine, known as contributory negligence, was a complete bar to recovery by an injured person. If the defendant could show that you contributed to the injury in any way, you could recover nothing.
Because of the perceived harshness of such a rule, the doctrine of contributory negligence has generally been replaced by the concept of comparative negligence. There’s some disagreement with respect to the scope of comparative negligence. Some states apply a rule of “pure comparative negligence,” where an injured person may always recover something, even if he or she was primarily at fault. Other states, including New Jersey, have adopted what is known as “modified comparative negligence,” where the plaintiff may only recover if his or her liability was less than that of the defendant(s).
Assumption of Risk
This defense contends that the injured person knew that the activity engaged in was potentially dangerous and voluntarily assumed the risk of injury by participating in the activity or event. This type of defense is common when someone is injured at a spectator event (being hit by a baseball or a hockey puck, for example), or when someone is hurt while engaged in a dangerous activity, such as bungee jumping or skydiving.
Contact the Law Offices of Mallon & Tranger
To learn how we can help you if you have been injured, contact us online or call us at 732-410-6094 (toll free at 877-320-0692). There is no charge for your first meeting. We have offices in Freehold, Toms River and Point Pleasant.