Top Things to Know About Contributory Negligence and Assumption of the Risk in a Personal Injury Case

When you are injured in an accident caused by another party’s negligence or wrongdoing in Rochester or elsewhere in upstate New York, you may be thinking about filing a personal injury lawsuit against the at-fault party. Yet you might hear from the at-fault party that you are not entitled to compensation because you were also partially at fault for the severity of your injuries, or because you assumed the risk of an injury when you engaged in a particular activity.

The legal concepts of contributory negligence and assumption of the risk are included in a single statute in New York State (NY CPLR § 1411). Both are relevant and significant in a number of personal injury cases, and it is critical to learn more about how these issues could affect your claim. The following are the top things to know about contributory negligence and assumption of the risk in a New York personal injury case.

Contributory Negligence and Assumption of the Risk Are Types of Affirmative Defenses in a Personal Injury Case

When a plaintiff files a personal injury lawsuit in Rochester, a defendant will develop a defense strategy that may include contributory negligence (or comparative fault) or assumption of the risk. Both of these legal terms are types of affirmative defenses that a defendant will raise to lessen his or her liability.

Contributory negligence refers to a plaintiff’s own negligence that contributed to the injury itself or to the severity of the plaintiff’s injuries. Assumption of the risk means that a plaintiff may not have been negligent, but the plaintiff acknowledged that some type of risk existed and decided to engage in a certain action or behavior anyhow. In other words, the plaintiff “assumed” the risk associated with the behavior that resulted in his or her injury.

Both Contributory Negligence and Assumption of the Risk Concern a Plaintiff’s Own Culpability or Responsibility

In cases involving contributory negligence or assumption of the risk, it is important to understand that both concern the plaintiff’s own culpability or responsibility for her injuries. Yet neither suggests, necessarily, that the plaintiff is entirely at fault, but rather that the plaintiff may bear some liability or responsibility for injuries.

Contributory Negligence and Assumption of the Risk Affect a Plaintiff’s Ability to Recover Damages

Since both contributory negligence and assumption of the risk concern the plaintiff’s own liability or responsibility, either can result in the plaintiff’s damages award being reduced. However, both contributory negligence and assumption of the risk are types of a “partial defense,” which means it is not a complete defense for the defendant. How does this work in practice?

For example, imagine that a plaintiff was texting at the time of a collision involving a drunk driver, but the drunk driver ran a stop sign and collided with the plaintiff. The court might determine that the plaintiff was 20 percent at fault, for instance, and the plaintiff’s damages award would be reduced by 20 percent. 

Likewise, in a case involving a partial defense of assumption of the risk, imagine that a plaintiff goes to a tree farm to cut down a tree. The plaintiff rents a chainsaw and heads out to select a tree. In cutting down the tree, the plaintiff sustains a severe laceration. However, the tree farm did not have clear instructions and warnings about how to use the chainsaws properly to avoid injury. In such a case, the plaintiff may have assumed the risk of injury associated with the chainsaw, but the tree farm may still be some liability as a result of its failure to provide clear instructions and warnings.

Plaintiffs Can Dispute a Defendant’s Assertion of Contributory Negligence or Assumption of the Risk

With help from a personal injury lawyer, a plaintiff can always dispute a defendant’s assertion of contributory negligence or assumption of the risk. 

You should keep in mind that, even if a defendant raises the issues of contributory negligence or assumption of the risk, you can dispute such assertions and can seek full compensation. And even if a defendant can prove that your damages award should be reduced, we can help to ensure that you remain eligible for financial compensation to cover your losses.

An experienced Rochester personal injury lawyer at our firm will do everything possible to demonstrate that neither contributory negligence nor assumption of the risk are relevant in your case and that you deserve full financial compensation for the losses you have suffered. Contact King Law for help with your case.


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