The difference between general negligence and contributory negligence lies in who is making the argument. Both sides can argue negligence; however, the former is a prosecuting argument, whereas the latter is a defense argument.
The plaintiff will generally begin a personal injury case by arguing how the defendant is guilty of general negligence, meaning they caused the accident that injured the plaintiff. The defendant can review the plaintiff’s argument as well as the evidence presented and counterargue that the plaintiff is guilty of contributory negligence, meaning their actions also contributed to the cause of the accident.
There are laws that determine how compensation may be distributed, depending on whose argument wins. However, the reason why people emphasize the importance of understanding contributory negligence is that Maryland has a tort rule mandating that plaintiffs who are guilty of contributory negligence cannot collect damages. Because of this, many people hire personal injury lawyers to help them prepare their case arguments against the opposing parties.
The Plaintiff Has to Prove the Other Party Was Completely at Fault
No matter what kind of personal injury case you bring, your case argument will focus on proving how the other party’s negligence caused the accident that led to your injuries. If your case involves multiple parties, you have different reasons for why each party was negligent, but your argument structure will generally follow the same formula.
The Four Elements of Negligence
As the Legal Information Institute (LII) explains, arguing general negligence involves proving four elements, which are:
- Who had a duty of care: A “duty of care” is an obligation one party has to another to keep them safe from harm. This duty can be defined differently depending on the context of the situation and what would be reasonably expected of an individual, company, or entity. For example, in motor vehicle accidents, all drivers have a duty of care to obey traffic laws. However, drivers are not expected to sacrifice themselves to ensure the safety of every individual on the road.
- Who breached their duty of care: Once the plaintiff establishes that the other party owed them a duty of care, they must then argue how the defendant failed to fulfill this obligation. To continue our motor vehicle accident example, this could be as simple as the at-fault driver’s traffic violation, such as driving while intoxicated or texting.
- What caused the accident: The plaintiff then must prove how the defendant’s breach caused the accident to show how both are connected.
- What damages resulted from the accident: Finally, the plaintiff must present a list of damages they incurred as a result of the accident, which can range from physical injuries to financial losses they experienced.
Your personal injury lawyer can help you build this argument by collecting evidence for each of these elements.
The Defendant Might Try to Assign Blame onto the Plaintiff as a Defense
After the plaintiff presents their argument, the defendant has an opportunity to fight against these claims. If the accident is ambiguous or there might be other legal factors at play, the defendant may attempt to argue contributory negligence to assign fault onto the plaintiff. If successful, the defendant would then have no obligation to compensate the plaintiff’s damages since the plaintiff also contributed to their injuries, according to the American Bar Association (ABA).
Arguments Defendants Might Use
Some examples of counterarguments defendants might use include:
- Assumption of risk: The plaintiff understood or had previous experience with the hazards that caused their injuries (common argument in premises liability and product liability cases).
- Comparative fault: The plaintiff also could have avoided the accident had they followed their duty of care, meaning the plaintiff’s actions or inactions contributed to the accident.
- Misuse or alteration of a product: The plaintiff did not use a product for its intended purpose or altered it in some way, which brought on hazards that were not initially present.
Call the Law Offices of Adam M. Smallow for a Free Case Review
Now that you know the difference between general negligence and contributory negligence, consider calling the Law Offices of Adam M. Smallow to learn more about how our attorneys may be able to help you build your case arguments, both to prove how the other party was at fault and how you were not. When you call our law firm at (410) 877-6021, you get a free case review from a member of our staff, who can also explain the options you have to pursue compensation.
If you decide to have one of our Edgewood personal injury lawyers represent you, we can start setting up your profile in our client records and assign you a unique texting number, which you can use to communicate with us any time of the week. If necessary, we also refer you to a medical care provider to treat your injuries or get more information about your condition.
We care about the needs of our clients and treat them with respect. Our mission at the Law Offices of Adam M. Smallow is to give back to the community and fight for their justice, and we aim to do everything possible to achieve that.