Do You Have Any Defense against Negligence Lawsuits?

In my last blog, I talked aboutnegligence. I defined it as committing an offense that causes someone else harm. Normally, negligence is accidental. People do not often try to hurt others. However, especially in traffic accidents, people’s actions can result in harm to others on the road. When that happens, plaintiffs often sue defendants for damages. At that point, the at-fault drivers will try to present a defense against negligence lawsuits.

Review of the 4 Elements of Negligence

I previously outlined the four elements needed to prove a defendant is negligent in civil lawsuits. In brief, the plaintiff must prove that the defendant:

• Had adutyof care to protect the plaintiff;
• Breachedthat duty of care;
• Causedthe plaintiff’s injuries in the accident; and
• Owes the plaintiff fordamageshe/she suffered from the accident.

Defense Against Negligence Lawsuits

Yet, what happens if you are the defendant, not the victim? What if you accidentally hurt someone else in a traffic accident?

To defend yourself against a negligence lawsuit, you must show that one or more of the four elements of negligence do not apply to you or this accident.

In other words, you will attempt to prove that youDID NOT:

• Have a duty of care to the plaintiff;
• Breach your duty of care;
• Cause the plaintiff’s injuries; or
• Cause the severity of injuries the plaintiff is claiming.

Let me walk you through how this could work.

#1 – Prove you did not have a duty to the other person.

If you are the defendant in a traffic accident lawsuit, proving you did not have a duty of care may be difficult. Here is why:

The only legitimate way to prove you did not have a duty of care in a traffic accident is to prove that you were not the one driving the vehicle.

#2 – Prove you did not breach your duty.

Assuming you cannot argue against the first element of negligence, you might be able to prove that you did not violate the second element.

In a traffic accident, someone breached a duty of care. However, as the defendant in that negligence lawsuit, you could argue that you are not the at-fault driver. You could attempt to prove that you did not breach your duty.

This defense questions the credibility of plaintiff, so you would need to have video footage of the traffic accident to prove your statement. Obviously, that video would have to show the other driver causing the accident.

#3 – Prove your breach of duty did not cause these damages.

Okay, let us assume you had a duty of care. You breached that duty. That means that you cannot defend yourself against the first two elements of negligence. However, you might be able to argue thatyou were not the sole causeof the accident or of others’ injuries.

Perhaps there was an intervening act. You rear-ended another driver and caused him whiplash and a concussion. An ambulance took the other driver to the hospital. However, on the way to the hospital, a semi-truck hit the ambulance. Are you then responsible for those injuries, which we assume would be more than whiplash? Of course not.

There was an intervening act that interrupted the chain of causation. Thus, your defense would be, “I had a duty. I breached it, but I did not cause those significant injuries.” In other words, you would say that you are not the sole cause, or even a large part, of the accident or the other drivers’ injuries.

Great, but what if there was not an intervening accident? What if you were at fault to some degree, but the other driver was also at fault? This is where we get into contributory negligence or comparative negligence.

Comparative Negligence Defense

Most states have comparative negligence, where two or more parties contributed to the accident.

In this type of defense to negligence, you might admit to some fault. However, your defense would be that the plaintiff bears some responsibility for the accident as well. You might say, “Yes, I rear-ended the plaintiff. I may have been following too close, but he came to a complete stop on the highway for no reason. There was no car in front of him.”

That is a solid defense. In it, you are accepting some, but not all of the responsibility. You are not saying the victim is liable. Obviously, someone has to pay. The question is just who and how much.

In a strict comparative negligence defense, the court determines each driver’s percentage of fault to determine how much the defendant owes the plaintiff. Thus, if you are able to prove the plaintiff bore some responsibility for the traffic accident, you canreduce(but not get rid of) the judgement against you.

Contributory Negligence Defense

Out of 52 jurisdictions in the United States, which include the District of Columbia and Puerto Rico, 5 jurisdictions use contributory negligence rules to determine whether a plaintiff can recover damages from an at-fault driver. Those 5 jurisdictions are:

• Alabama
• District of Columbia
• Maryland
• North Carolina
• Virginia

If, as a defendant, you admit to some negligence, but you also prove that the victim waspartiallynegligent, you can get the case against you dismissed by the rules of contributory negligence.

Only in the listed 5 jurisdictions, if a plaintiff is deemed liable, even as much as 1%, for his accident, then the plaintiff cannot recover any damages from the defendant. And honestly, if the plaintiff or his attorney knows that he is partially liable, the plaintiff is not even supposed to bring a lawsuit against the other driver.

#4 – Reduce the amount of damages you owe.

If the plaintiff proves that you had a duty, that you breached that duty, and that you caused the accident, is there any other defense you can provide? Yes, this is where you can dispute the fourth element of negligence – damages.

First, you might be able to prove that the plaintiff was not damaged, or hurt, by the accident. Perhaps the plaintiff’s vehicle was damaged, but the plaintiff was not injured. If the plaintiff was not injured, he has no reason to sue you for damages.

Second, you may be able to prove that the plaintiff’s damages were not as bad as he made them out to be. Sure, the plaintiff may have been injured in the accident you caused. However, if he is claiming his back was broken, and you have evidence he was bench pressing 200 pounds a few weeks later, then you can chip away at the amount of money you will owe him.

If your defense revolves around the fourth element of negligence, your strategy revolves around how much you can reduce what you owe, not that you owe.

Varieties of Defenses against Negligence Lawsuits

When evaluating your defense against negligence lawsuits, pick your battles.

If you know that you are responsible, then do not fight against duty or breach of duty. Try to prove that you were not solely responsible for the other driver’s damages. Chip away at your liability. Or try to prove that the other driver had prior injuries that the accident merely exacerbated.

As a defendant, you have a variety of defenses within the 4 elements of negligence you can use. You can accept full blame, partial blame, or no blame. You can argue that you are willing to pay for certain medical treatments the victim had but not others.