2 ways to defend against negligence claims

On Behalf of | May 3, 2018 | Firm News |

After some sort of accident, it can take some time to determine who bears the responsibility for it. Law enforcement agencies, insurance companies and attorneys often conduct investigations into an accident to determine what happened, how it happened and who was at fault for it. Sometimes, it doesn’t take long or much effort to determine which party’s negligence led to the accident.

Few cases are that cut and dry, however. In most instances, both parties bear some liability for what happened. This means that it may be possible to defend against a lawsuit filed by the party who appears to be the victim.

Did the victim assume the risks?

Some activities are inherently dangerous. For instance, many theme park rides are dangerous, even with their safety measures. Even so, millions of people assume the obvious risks of these rides and get on them each year. The same goes for other activities in which the dangers are often clear.

If the victim knew the dangers associated with a particular activity, yet participated anyway, you could use this as a defense to a subsequent lawsuit. Of course, only the obvious dangers apply to this defense. Using the theme park ride example, the victim may assume the risk of hanging upside down 100 feet in the air, but shouldn’t expect that a bolt is loose or some other defect in the ride exists. These types of unknown risks would invalidate a defense based on assumption of risk.

Did the victim contribute to the accident?

As the saying goes, “It takes two to tango.” In many accidents, the fault lies with both parties. The question is who assumes more of the fault. Under the legal theory of comparative negligence, the court looks at the factors that led to the accident and determines which party bears more fault than the other does. The plaintiff (the person filing the lawsuit) may receive a reduced portion of any damages awarded based on his or her percentage of fault. There are three types of comparative negligence:

  • Slight-gross
  • Pure
  • Modified

Iowa subscribes to modified comparative negligence since a plaintiff may recover a percentage of any damages as long as the court rules that he or she was no more than 51 percent liable for the accident.

Using either of these defenses to a personal injury or wrongful death claim requires presenting the appropriate evidence to the court, which can be a challenge. It may be a good idea to make use of local legal resources for help.