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Comparative Negligence and Assumption of Risk

Comparative Negligence

One of the primary defenses to a personal injury case involves the concept of comparative negligence. To understand this concept, you must first consider that the total amount of negligence involved in the accident equals 100%. This total is divided between the negligence of the defendant (or defendants) and the plaintiff’s comparative negligence. Your recovery is reduced by the comparative negligence.

For example, if the defendant rear-ended your stopped car, the defendant’s negligence represents 100% of the total negligence. The verdict is not reduced under this scenario. If, however, the accident involves a defendant who ran a red light, comparative negligence may figure in. If it was determined that you were speeding at the time of the accident and this contributed to the accident, the jury might find that the defendant was 80% negligent and you were 20% comparatively negligent. If the jury determined that the damages justified a verdict of $10,000, the judge would reduce the award by 20% and you would receive $8,000.

Assumption of Risk

A standard defense is the claim that you assumed the risk of injury and therefore, should not be able to recover damages from the defendant. This is a valid defense to many injury claims. For example, most skiing accidents are not compensable because skiing is an obviously dangerous activity involving frequent injuries. The law in your state may not permit personal injury lawsuits for skiing accidents unless truly reckless conduct can be shown. For example, if the ski resort knew that the design of its slopes was extremely dangerous and failed to warn skiers, it is possible that you would not be found to have assumed the risk of an injury on these slopes.

If you get struck by a batted ball at the ballpark, you should probably forget about suing the team, the stadium, or anyone else. When you entered the stadium you assumed the risk that a ball would fly into the stands, possibly injuring you. If you are aware of an obvious danger, purposely elect to abandon a position of relative safety, and place yourself in the zone of danger under circumstances showing a willingness to accept the risk of injury, you cannot collect for your injuries. That is what assumption of risk is all about.

This defense doctrine is often asserted in fall down accident cases. For example, if you are aware of an isolated patch of ice in a parking lot, park your car next to it, and then slip on it-you are probably not going to get any awards. You assumed the risk of falling when you knowingly parked next to the patch of ice. However, if the entire lot was icy and you had no reasonable alternative route, you can still sue for your injuries.

The assumption of risk defense is generally successful only in the most extreme cases. Do not assume it will bar your lawsuit unless you fit clearly into one of these scenarios. It is a defense that is often asserted, but rarely prevails.

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