Being the subject of a personal injury or negligence claim can be a stressful experience. If you’re judged to be liable for a person’s injury, you could have to pay out a substantial sum of money. Additionally, the media attention surrounding the claim could be damaging to your brand if you run a business. To makes things even worse, negligence claims are often a slow and involved process.
According to Forbes, the average time between a claim being made and a settlement being reached is over 11 months. Knowing how to protect yourself in the event of a claim being made is essential. Let’s go over the basics.
What Is a Negligence Claim?
A negligence claim is when the defendant (person being sued) is accused of having fallen short of the standards that would be expected of a reasonable person. For a negligence claim to succeed, the plaintiff (person who initiated the claim) must prove that you had a duty of care over them.
Furthermore, they must prove that you failed in that duty or were otherwise at fault. They must also prove that the loss they experienced was a foreseeable consequence of your breach of duty. These things are not always easy to prove. However, they are often open to interpretation by a judge or jury.
Common Defenses to Negligence Claims
There are several ways to defend against a negligence claim. These include demonstrating that you didn’t owe a duty of care to the claimant or that the claimant’s injuries weren’t caused by you. Another defense is that you did, in fact, exercised reasonable care. Depending on the state in which the claim is being made, several doctrines may apply to either limit or eliminate liability based on alleged negligence. These include the following legal concepts.
- Contributory negligence
- Comparative fault
- Assumption of risk
Defend Against Claims With Contributory Negligence
Contributory negligence describes the idea that the plaintiff was in some way responsible for the accident. For example, let’s say you run a workshop. An employee is injured while working with a tool because they failed to engage the tool’s safety guard. As a result, they bring a negligence claim against you (and your business).
You may be able to show that you provided the right safety tools and training to the plaintiff. You could argue that the plaintiff wouldn’t have sustained an injury if they had followed the proper procedures and the health and safety training they were given. Basically, you are saying “it’s your own fault you got hurt, not mine.”
Comparative Negligence Applies in Many States
In many states, the concept of contributory negligence has been replaced by that of comparative negligence. When comparative negligence is applied, instead of a plaintiff’s claim being voided if they contributed to their accident, any compensation they would qualify for is reduced by the percentage in which they’re found to have been at fault for their accident. So even if you’re judged to be 25% at fault, you may still be forced to pay damages.
In some states, the claim is only reduced if the plaintiff is found to have been more at fault than the person they’re claiming against. This is similar to the way in which claims for car accidents are calculated.
When Does Assumption of Risk Apply?
Depending on the nature of the accident, the concept of assumption of risk may apply. If the plaintiff chose to engage in an activity they knew was dangerous, they may not be able to claim for injuries sustained during the activity. For this to apply, the plaintiff must have a clear knowledge of the subjective risk of the activity and must have voluntarily accepted that risk.
An example of this may be if someone is injured playing a sport. This defense can’t apply to any additional dangers or if the plaintiff was unaware of the risk they were assuming. This is also why signing a liability waiver is common for doing physical activities like rock climbing or signing up for a soccer league.
Be Proactive to Prevent Negligence Claims
Rather than fighting negligence claims, look for ways to prevent them from being made at all. Depending on the nature of your business, you may be able to take many precautions. The easiest and most common precaution is to provide proper health and safety training, plus safety equipment. You can also purchase certain types of liability insurance that will protect you against these claims. (Even better, the insurance company will provide experienced legal counsel if you are sued for negligence.)
If you work with members of the public, such as at a gym or fun fair, you can still take precautions. You should brief customers on the use of the equipment and then have people supervise the use of any equipment that might be dangerous. Any steps you can take to prove you took your duty of care seriously may mitigate future claims.
Seek Legal Advice if Faced With a Negligence Claim
If someone decides to sue you for negligence, it’s likely they’re working with an attorney. Personal injury attorneys pursue claims for their clients quite aggressively, so it’s vital to be proactive in defending yourself too. These attorneys often work on contingency, meaning they don’t get paid unless they are successful in winning damages or reaching a settlement.
To ensure the best chances of mounting a successful defense, you should do the same. Never attempt to defend yourself without a legal expert — it’s an easy recipe for failure. Instead, speak to a professional injury attorney before responding to the claim. With support from a legal professional, you can reduce the risk of your business falling victim to false or malicious claims and protect your reputation and hard-earned income.