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By Leigh Goessl

Techniques attorneys use to defend liability in negligence suits

In a lawsuit that accuses a business of liability, the plaintiff must be able to successfully show fault, and a defendant has to be able to defend against the allegations. Additionally, the defendant must show the plaintiff’s injury was not caused by negligence on the part of the defendant. Negligence falls under the broad category of tort law, which also includes strict liability and intentional wrongs.

There are a number of ways a defending attorney can approach fighting a negligence lawsuit. These methods are pursued in the hope it can be demonstrated the defendant is not liable. An attorney will typically choose one of the following types of defenses when handling a negligence lawsuit.

Contributory and comparative negligence

Contributory negligence and comparative negligence are similar in nature, but there is one key difference: level of blame. This difference has led to most states abandoning the contributory defense approach.

Basically, a contributory defense implies the plaintiff likely would not have been injured if not for his or her own actions that were negligent. Criteria for this defense will vary from state to state and, as noted, only a handful of states still use it.

Comparative negligence is the more commonly used defense these days. It is preferred because it allows blame to be allocated. In other words, the defense applies a percentage of fault to each party involved in the lawsuit. According to, there are three primary types of comparative negligence: pure, modified and slight-gross.

Assumption of risk

In the assumption of risk defense, an attorney will move to demonstrate that the plaintiff acted voluntarily despite knowing risks associated with the behavior that led to the injury. Basically, it means the individual knew of risks associated with an act and decided to continue despite the jeopardy potentially involved. Unknown dangers do not apply and cannot be held against the plaintiff in this defense.

Superseding or intervening cause

In order to establish liability, there must be a direct link between the negligent behavior and the plaintiff’s injury. In legal terms, this is called causation. For instance, if an action occurred between the negligence and the injury and this behavior played a role in the damage or harm that may have changed what the outcome would be, this is called intervening cause. For superseding and/or intervening cause to be an effective defense, the attorney must demonstrate the event to be unforeseeable. (The Rottenstein Law Group LLP provides a good illustration of how this works with a situational example and further explains how superseding cause must be present as well).

Good Samaritan statutes

Another defense an attorney may choose to use is called the Good Samaritan statute. This defense is often used in situations where the person(s) charged with negligence was trying to assist or rescue the injured party. According to the definition, there are three key elements in the Good Samaritan statute:

  • Care was given as a result of an emergency situation
  • The initial injury was not due to the person where this defense is used
  • Care for the injury and/or emergency was not reckless or negligent in itself

This defense can also be used in situations where an individual tried to prevent or control property damage. The above principles still apply – the assistance cannot be reckless in nature.

Tort law can be complex; however, an attorney will typically choose one of the above defenses when defending a client against a negligence claim. The type of defense chosen will depend upon the individual case and what factors are involved.

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