How to Defend Against Negligence Claims

how-to-defend-against-negligenceWhether you are a business owner or a property owner, you may one day have a personal injury claim filed against you. In most cases the plaintiff will try to establish that you were negligent, and thus liable for their injury.

What Is Negligence?

Negligence is a legal concept that is based on the idea that we all have a duty to act reasonably to secure the safety of others. For example, it is reasonable for a homeowner to keep his sidewalk free of ice in the winter, so that it is safe for pedestrians. A case of negligence occurs when someone does not exercise a reasonable standard of care, and then someone else becomes injured as a direct result.

To establish negligence, the plaintiff will have to prove a few things:

• The situation was unreasonably dangerous
• The defendant knew or should have known of the danger
• The dangerous hazard was a direct cause of the plaintiff’s injury

The most common ways to defend against a negligence claim include:

• No duty of care
• Proving reasonable exercise of care
• No causal connection to injury
• No actual injury
• Comparative negligence
• Assumption of risk

No Duty of Care

In some situations, the defendant will not have a responsibility to exercise care for the plaintiff. A good example is regarding trespassers. Because they had no right to be on the property, the owner has no duty to keep the property safe for their entry.

Proving Reasonable Exercise of Care

If you can prove that you were acting reasonably to provide for others’ safety, then you will not be found negligent. Imagine you are a business owner who has a large hole in the entrance to your business. You have a sign and warning material around the hole, and even warned the victim about it before he entered. It is possible that the court will determine that you took reasonable action to prevent injury.

No Causal Connection to Injury

A plaintiff cannot sue you for every injury suffered, only the ones that were directly caused by your negligence. For example, if the plaintiff suffered from food poisoning after he ate at your restaurant, he will have to present evidence that the food poisoning was caused by your restaurant’s food and not from another meal he had.

No Actual Injury

This is self-explanatory. The plaintiff will need to have real injuries that incurred real costs, such as medical bills or lost wages. Emotional distress is almost never enough to establish damages.

Comparative Negligence

Comparative negligence is the legal theory that if the plaintiff was also negligent for the injury, the defendant should only pay damages for the percentage that was the defendant’s fault. This concept works differently in different states. In Nevada, the defendant will only have to pay the percentage to which they are responsible, but if the plaintiff’s negligence is greater than 50%, then the defendant will have to pay nothing.

Assumption of Risk

This concept applies when the plaintiff knew of the risks of their action and decided to do it anyway. If they assumed the risks, then the defendant will not be liable.

Bighorn Staff

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