If you’re a defendant and the plaintiff has survived a motion to dismiss, your affirmative defenses are your next best chance to prevail. Affirmative defenses are much like claims in that the person asserting them must prove that all the required elements are present. Still, if you have any chance of saying, “The plaintiff was wrong too”, take it. And there are no better plaintiff-was-wrong-too affirmative defenses than contributory and comparative negligence.
In general, affirmative defenses are a way of giving reasons why the defendant shouldn’t have to pay damages to the plaintiff even if the facts stated in the complaint are true. Like claims, affirmative defenses carry with them the burden of proof. The defendant has the job of proving that he should prevail. In the case of contributory and comparative negligence, the defendant is saying that the plaintiff or someone else shares some of the blame for the harm to the plaintiff.
If you want to know more of the nitty gritty of asserting affirmative defenses, our blog discusses that in detail in previous posts.
The Difference Between Contributory and Comparative Negligence
Contributory and comparative negligence are all about fault. Both rely on the behavior of the plaintiff to determine the degree to which he is compensated for his injuries. The difference is that in comparative negligence states, fault is divvied up amongst the parties like a pie. If the plaintiff is 10% responsible for his injuries, any compensation he gets will be reduced by 10%.
Some states employ a modified form of comparative negligence where the plaintiff is compensated only if he’s not the person most responsible for his injuries. For instance, if he’s responsible for at least 51% of his injuries, he’s not compensated at all.
By contrast, in contributory negligence states, a plaintiff is barred from collecting damages if he had even the slightest degree of fault in an accident. States that still use a contributory negligence rule include Alabama, District of Columbia, Maryland, North Carolina, and Virginia. The rest of the states use comparative negligence or some hybrid, less harsh, form of compensation for personal injuries as described above.
Consider This Scenario
Shop owner and operator Ray has a store in a large mall setting. A repeat customer, Lee, has previously sued Ray for Americans with Disabilities Act (ADA) violations. After settling the case with Lee, Ray proceeded to upgrade the facilities to meet ADA standards.
One day, Lee approaches Ray’s store while he is mopping the floor. Ray has mop in hand, a mop bucket, and a shiny wet floor. Yet, he has not put up a “Caution” sign despite the fact that he is mopping during operating hours. Lee proceeds to enter the store and falls down. He sues Ray for personal injury and lost wages, alleging negligence.
Ray Asserts Affirmative Defenses
In his affirmative defenses, Ray asserts that Lee not only failed to take reasonable care when entering the store but that Lee intentionally put himself in harm’s way. Ray further says that Lee clearly saw him mop the floor and should have been more careful. We’ll review his position using both a contributory and comparative negligence point-of-view.
Defending In a Comparative Negligence State
A comparative negligence approach suggests that Ray and Lee were both negligent. This doctrine is a partial defense and reduces the damages Ray would have to pay. If a court finds that by not putting up the “Caution” sign, Ray was slightly more negligent than Lee, he would have to compensate Lee, at least partially, for the injuries he suffered and the lost wages he experienced.
This isn’t ideal for Ray, but it’s better than having to pay the entire amount of damages.
Defending In a Contributory Negligence State
In a contributory negligence state, Ray would be protected from having to pay anything to Lee. Ray asserts that he did not need to put up a sign because it was readily apparent that he was mopping and the floor was shiny wet. If Ray can prove that Lee saw him mopping and still entered the store and stepped on the wet part of the floor, he may get off scot free. Lee would not collect damages because he contributed to his own injury. Had Lee not walked onto the wet floor, he would not have fallen and injured himself.
This would be ideal for Ray. Despite his own negligence, he wouldn’t have to pay.
A defendant claiming contributory and comparative negligence asserts that the facts mitigate what the plaintiff alleges is unlawful conduct. With these defenses, the defendant can avoid some or all of the costs of plaintiff’s injury. Indeed, with the right affirmative defense, you can disarm even the most compelling complaint.
- 31 Affirmative Defenses And How To Assert Them
- Estoppel, Waiver, And Ratification. Three Affirmative Defenses For When The Plaintiff Was Wrong Too
- How To Use Elements To Prove Your Case Or Defend Yourself
- Things To Remember When Writing The Answer And Affirmative Defenses
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