Essay by PaperNerd ContributorUniversity, Bachelor's July 2001

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Defenses in Negligence Once a plaintiff makes an accusation of negligence against the defendant, the defendant has the opportunity either to answer the charge with a legal justification for the alleged misconduct or to demonstrate that the plaintiff's own actions contributed in part or totally to his or her injuries. There are three basic defenses for negligence: contributory negligence, assumption of risk, and superseding cause.

        Contributory negligence is a plea in mitigation of damages based on the plaintiff's failure to take reasonable care for his or her own safety and well-being that contributes to the injuries suffered, or the occurrence of a situation in which injuries are accountable. In other words, if the plaintiff's own carelessness or recklessness contributed to his or her injury, the defendant is not liable. If a state allows the comparative negligence defense, the judge or jury determines how the plaintiff's carelessness compares to the defendant's carelessness.

If the plaintiff is found partially at fault for an accident, he or she has not lost the case altogether. Comparative negligence is simply used to calculate the degree of the plaintiff's negligence and, as a result, reduce the plaintiff's claim reward. The award of damages to the plaintiff will be reduced in direct proportion to the plaintiff's percentage of fault, no matter what the ratio.

        A plaintiff who chooses to participate in activities that he or she recognizes as risky or dangerous "assumes the risk" of that activity. While in some states assumption of risk provides a complete defense, in many states a comparative or contributory negligence analysis of the wrongful conduct is then applied. A plaintiff is said to have assumed the risk of certain harm if she has voluntarily consented to take her chances that harm will occur. If a plaintiff engages in an activity that has...