Tort Components: Affirmative Defenses
There are generally three types of affirmative defenses that Defendants use to avoid liability for your injury:
- The affirmative defense of "Assumption of the Risk" is often claimed by Defendants in lawsuits regarding an injury that occurred during some form of risky or hazardous activity. Assumption of the risk basically stands for the proposition that you, the Plaintiff, knew that the activity you were participating in could be dangerous, and since you went ahead and participated anyway, you accepted that risk of injury and therefore you should not be compensated for any injuries that did occur. Essentially, the meaning of the assumption of the risk defense can be summed up with the phrase "you, the Plaintiff, knew what you were getting into, so don"t complain afterwards if you were hurt."
- The affirmative defense of "Contributory Negligence" allows the Defendant to escape liability and win the case if you, the Plaintiff, contributed to your own injury. That is, if the Defendant was negligent and had a role in causing the injury, but you were also negligent and your own negligence also played a part in causing your injury, then the Defendant will win the case. The affirmative defense of contributory negligence means just what it sounds like, if your own negligent behavior contributed to the injury, then the Defendant is not liable.
- Many states have done away with the affirmative defense of contributory negligence and replaced it with the similar, yet importantly different affirmative defense of "Comparative Negligence." While the affirmative defense of contributory negligence frees the Defendant from any and all liability if the Plaintiff is at all, even remotely, responsible for his own injury, comparative negligence does not absolve the Defendant as completely. Under comparative negligence, the Defendant is liable and must compensate the Plaintiff in proportion to the Defendant"s responsibility. For example, if the actions of both the Plaintiff and the Defendant caused the injury, then they are each liable for their fair share. That is, if the Plaintiff"s own negligent act is the cause of 35% of the injury and the Defendant"s negligent action caused the other 65% and the total injury cost the Plaintiff $100,000, then the Defendant must pay the Plaintiff $65,000, or 65% of the total cost. The Plaintiff cannot recover the other $35,000 because the Plaintiff himself was responsible for 35% of his own injury.
-- Article Courtesy of InjuryBoard.com
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