On Using Comparative Negligence As Defense Against Tort Liability

Someone that has been injured in an accident cannot automatically claim compensation for those injuries. That victim must come forward with certain proofs. For instance, he or she must prove that the actions taken by the negligent defendant caused the claimant’s injuries.

In other words, if a defense team could show that a plaintiff’s injuries had not resulted from the effects of the accident, the negligent defendant could not be the legitimate target of a personal injury claim. That fact highlights the appeal of comparative negligence as a defense against tort liability.

Facts that relate to comparative negligence

• The size of the plaintiff’s award gets reduced in proportion to the extent to which the plaintiff’s negligence contributed to the factors that caused the accident-related injuries.
• The defense team often uses testimony from expert witnesses to demonstrate the existence of comparative negligence.
• Evidence of a plaintiff’s negligence cannot be used as a defense in a worker’s compensation claim.

Categories of comparative negligence

Pure: In this case a victim can receive all of a damage award, regardless of the issues related to liability.

Modified, with a 51% role: In this case the plaintiff can receive the award if his or her liability equals or is less than the level of the defendant’s liability.

Modified, with a 50% role: In this case, the liability of the plaintiff must be less than the liability of the defendant.

How lawyers deal with charges of comparative negligence?

Experienced Personal Injury Lawyer in Kingston know how to reach out to professionals that can offer an opposing view, but one that is held by an expert witness. That view forces the jury to contemplate the veracity of the statements made by each expert. The jury tends to give greatest credence to the argument that is easiest to understand.

A lawyer’s familiarity with the rights of someone with a chronic medical condition helps to strengthen the fight against an unfounded charge of comparative negligence. Sometimes the defendant’s attorney suggests that the plaintiff should have been using an added form of protection, due to the fact that the plaintiff had a chronic medical condition.

An experienced attorney would know how to gather the client’s medical records, in order to prove that the same client had a stabilized medical condition. Once a medical problem has been treated and stabilized, it cannot be pointed to as a possible cause of new problems. That fact weakens any suggestion that a client’s medical history serves as grounds for charging negligent behavior by a plaintiff that did not use an added form of protection.

If a client had failed to wear a seat belt or to come to a full stop at a stop sign, then it would be the lawyer’s task to deal with that proven charge. That would be a firmly grounded charge of comparative negligence. In the absence of such a well-founded charge, it becomes the attorney’s job to bring the facts into the limelight.