When a Defendant Faces a Negligence Lawsuit, What Defenses Are Available?

Those are three common defenses that a defendant in a negligence lawsuit may choose, depending on the facts of the case and the jurisdiction.

Assumption of Risk

Assumption of risk argues that the plaintiff knowingly and voluntarily accepted a known danger, relieving the defendant of liability in a personal injury lawsuit.

It often arises in sporting events, recreational activities, or situations where the plaintiff signed a waiver. The defendant generally must show the plaintiff had actual knowledge of the specific risk and chose to encounter it anyway.

Comparative Fault

Comparative fault focuses on the plaintiff’s own fault, but instead of barring recovery entirely, it reduces the plaintiff’s damages in proportion to their share of responsibility.

Under pure comparative fault, a plaintiff found 90% at fault can still recover 10% of their damages. Under modified comparative fault (used in most states), the plaintiff recovers a reduced amount only if their fault stays below a threshold (typically 50% or 51%) and recovery is barred if they are found to be at blame.

Contributory Negligence

Contributory negligence argues that the plaintiff’s own carelessness contributed to their injury.

In its traditional (pure) form, contributory negligence is a complete bar to recovery. If the plaintiff was even slightly at fault, they recover nothing. Because this rule is so harsh, not many U.S. states follow it.