Two of the defenses that might be used in a negligence lawsuit are contributory negligence or comparative negligence. These defenses are used when the plaintiff was also negligent in some way. A defendant could also claim assumption of the risk, meaning the other individual participated in activity that he should have known could cause an injury. If an individual is hurt but does not obtain medical treatment right away, a defense could be failure to mitigate damages. The type of negligence defenses available varies depends on local statutes and the individual circumstances.
Contributory negligence is one of the more common negligence defenses. It is used when the person who suffered damages was also negligent in some way. This could be because he was distracted, driving recklessly, or under the influence of drugs or alcohol. The argument is that if the individual was not participating in negligent behavior, he would not have been hurt because he would have been able to avoid the incident.
In areas that recognize contributory negligence as a defense, the plaintiff is barred from recovery if he is found to have contributed even slightly to the incident. For this reason, many jurisdictions have now shifted to using comparative negligence as a defense instead. This defense only bars the plaintiff from recovering damages by the percent he is deemed to be at fault. For example, if a plaintiff were deemed two percent at fault and the defendant 98 percent at fault, his damages would be reduced by two percent rather than the entire amount.
Assumption of the risk is one of the negligence defenses used when people are hurt while participating in dangerous activity. This is typically when they reasonably should have known they might be injured. Some examples of this could be sky diving or bungee jumping. It could also be applicable whenever someone knowingly uses faulty equipment to do a job, such as climbing on an unsafe ladder. This defense may be used in many jurisdictions whether or not a waiver has been signed.
People who are injured have a duty to prevent their afflictions from getting worse. Failure to mitigate damages is one of the negligence defenses used when a party neglects to seek medical treatment after an accident. This is because if medical advice is not sought quickly, the condition could become worse. Many courts feel people should be liable only for harm they have caused rather than complications that arise from improper care.