Liability Defenses

What situations are the defenses to reduce or absolve liability?

Assumption of Risk

If a person voluntarily engages in a hazardous activity or with knowledge that harm may be caused by an activity, that person assumes the risk of being injured. Hence this defense is often used against claims made by those partaking in sporting events such as skiing, mountain climbing, scuba diving, racing, or flying. It is also a common defense for injuries resulting from operations of tools and machinery.
  • Bob skis down a trail and hits an ice patch causing him to lose control and hits a fence breaking his arm. He had assumed the risk of skiing from natural elements and obstacles by purchasing the lift ticket.
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Liability Defenses

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What situations are the defenses to reduce or absolve liability?

Assumption of Risk

If a person voluntarily engages in a hazardous activity or with knowledge that harm may be caused by an activity, that person assumes the risk of being injured. Hence this defense is often used against claims made by those partaking in sporting events such as skiing, mountain climbing, scuba diving, racing, or flying. It is also a common defense for injuries resulting from operations of tools and machinery.
  • Bob skis down a trail and hits an ice patch causing him to lose control and hits a fence breaking his arm. He had assumed the risk of skiing from natural elements and obstacles by purchasing the lift ticket.

Contributory Negligence

If an injury is caused by one’s own negligence, whole or in part, the negligence can be deemed contributory. When multiple parties are involved, a percentage of fault is generally defined, and if the injured party is determined to be even partially at fault, say 10%, that party would have contributed to their own injury and thus be negligent. As a defense, contributory negligence is not commonly imposed in many states due to its harshness.

  • Alice observes Bob colliding with the fence and attempts to help him by crossing over the trail.  Not checking for traffic coming down the mountain, his struck by Tom who couldn’t prevent himself from hitting and injuring Alice. Tom’s defense for Alice’s injury could be her contributory negligence.

Comparative Negligence

When it is determined an injury is caused by multiple parties, a comparative percentage of fault is apportioned to each party. The intent of imposing comparative negligence is to assign a percentage of recovery to the injured parties proportional to their percentage of fault. This defense may preclude recovery to the injured is comparative negligence is determined to be over 50%.

  • After colliding with Alice, Tom admits he was skiing above his ability and couldn’t prevent himself from hitting Alice even though she did not check for oncoming traffic.  Alice sued Tom and files a claim with Tom’s insurance company.  An arbitrator appointed by the carriers apportions 50% at fault to both parties.  Alice receives 50% of her recovery due to her comparative negligence.

Act of God or Act of Nature

A natural event that causes damage such as weather-related events. No human control or intervention can cause or trigger the loss.
  • While parked at the ski slope, Bob’s car is damaged after a strong gust of wind causes a large branch to crash down on his hood. The ski slope may attempt to disclaim liability by stating the falling branch was caused by an Act of God or nature.

Intervening Cause

If in the sequence of events, an act or omission that breaks the connection from the proximate cause to the injury. It may be used to relieve the defendant of liability for the injury or loss.
  • John, the carpenter who was hired by the ski slope to repair the fence removes the safety guard and cuts the tip of his finger off. The act of removing the safety guard would be considered a modification by the injured to a product that deviates from the original manufacturer’s design and thus considered the intervening cause to the injury.
 

Intervening Cause

If in the sequence of events, an act or omission that breaks the connection from the proximate cause to the injury. It may be used to relieve the defendant of liability for the injury or loss.

  • John, the carpenter who was hired by the ski slope to repair the fence removes the safety guard and cuts the tip of his finger off. The act of removing the safety guard would be considered a modification by the injured to a product that deviates from the original manufacturer’s design and thus considered the intervening cause to the injury.

Statute of Limitations

A statute that defines the time for a claimant to take legal action against another party.  If no legal action is taken within this time, then under most circumstances, the party is barred from further action and/or recovery.  One exception may occur if a minor is injured.  Typically, the statute of limitation would start at the date the minor reaches adulthood.

  • The statute of limitations in the state of the ski slope is two years.  At first Tom makes no claim against Alice as there were no apparent injuries from his collision with her. However, after feeling lower back pain, it was discovered that he injured two discs. Tom filed a claim against Alice two and half years after the accident but was denied any recovery. Even though Alice was deemed 50% at fault due to her comparative negligence, Tom’s claim was denied as he did not file a suit within the required time.  Alice’s insurance company used the defense of failure to file suit within the statute of limitations.

The explanations written by William F. Schaake, CIC, CRM herein are intended to provide a basic understanding of the terms and concepts. This information provided is not intended to provide legal advice or opinions. Please check with your legal counsel and the terms and conditions of your insurance contract.  © 11/19/2011 – 2023