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Building a contributory negligence claim to escape liability

| Apr 27, 2021 | Insurance defense |

If someone has been hurt and now you’re being accused of being liable for those injuries, whether as a business or an insurance company, then you need to know how to aggressively defend yourself and protect your interests. This is no small feat, especially if the evidence seems stacked against you. But there’s a significant probability that you’ve got some defense options available to you that could either minimize your eliminate your exposure.

How to build contributory negligence arguments

As you probably know, Maryland is a contributory negligence state, meaning that recovery on a tort claim will be denied if the plaintiff was even 1% at fault. This leaves you in a strong position. All you have to do is show the person who is suing was partially at fault for his or her injuries, then you’ll escape liability altogether.

But how do you go about building a contributory negligence argument? It depends on the facts at hand and the type of case you’re dealing with. For example, in a car or truck accident case, you might be able to show that the plaintiff was engaging in distracted drive, was driving too fast, or was following too closely when the accident occurred.

Evidence of these facts might not be readily apparent, though, which is why you might want to conduct an accident reconstruction where an expert uses the laws of physics to analyze the facts and determine how, exactly, the wreck occurred and who is to blame.

In a defective product case, you might be able to show that several actions taken by the plaintiff invited the harm and therefore constituted contributory negligence. For example, a consumer might modify a product or use it in a way that is counter to its intended use. Some consumers even fail to abide by warning labels, which can also constitute contributory negligence.

Can you shift the blame to a third-party?

Even if you can’t show contributory negligence, you still might be able to avoid liability. In many tort cases, the facts are complex and it’s hard to tell who was at fault for the injuries in question. These ambiguities leave the door open for legal argument as far as fault is concerned. There may be one or more third-parties that are responsible for the damage at hand, and, if that’s the case, you need to be prepared to prove it.

Again, you might be able to utilize expert witnesses to provide clarification to the court or at least give you a strong negotiating position when you engage in settlement negotiations. But you can also depose witnesses and gather relevant documents, including police reports, hospital records, and even email correspondence with the injured party.

Take the holistic approach you need to your case

There are a lot of ways that you can try to limit your liability in tort claims. But you can’t afford to leave your case to chance. Instead, you need to be aggressive in approaching every claim that is levied against you. You need to know the rules of trial procedure, the rules of evidence, and statutory and case law that might apply to your case. Only then can you take the holistic approach to your case that you need to protect your interests.

Although you might have a lot of options at your disposal when it comes to legal representation, we encourage you to choose carefully and only after you have thoroughly vetted those firms that pique your interests. After all, there are only a handful of firms out there that have both extensive experience in this area of the law and a strong track record of success.