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Types of Defense to Negligence – What If It Wasn’t Your Fault?

Rachel Present Schreter | Jun 21, 2018

Everyone makes mistakes. Sometimes we even have to admit to things we’d rather not have done. But there are also times when we have to stand up for ourselves. Understanding professional negligence claims and how to defend yourself against them are the keys to knowing what to do in each situation and how to figure out your next steps if you get a claim that you were negligent. Of course, if you are the subject of a legal claim and need a defense to negligence, you should speak to a lawyer. This information is not intended to substitute for legal advice in any situation.

So What Is Negligence?

While the world “negligence” can legally cover a wide variety of situations, the basic idea is that a professional caused damaging by not doing something they should have. For a client or customer to claim that you were negligent, they have to show negligence existed. In order to that, they have to prove a few different things:

Duty

There was an obligation that existed between the business owner and the client. For example, if a client hired you to renovate a kitchen, they can’t claim negligence because you didn’t fix the plumbing in the bathroom. If you didn’t renovate the kitchen, they can claim you had a duty to do that. Importantly, you as a licensed professional can also be considered to have a duty on issues regarding following safety precautions according to law/best practices.

Breach

A breach means the business owner didn’t take necessary precautions, and breached their duty to their customer. To show this, the client will have to prove that you actually took shortcuts, skipping a step that a responsible professional should have taken. In some cases, this is clear-cut, especially when the government has mandatory safety regulations in place. In other cases, it can be subjective and it may be up to the judge to decide.

Causation

To show causation, someone must show that the damage they claim took place was actually a result of negligence. You may have been negligent and your client’s property may be damaged, but that doesn’t mean the two are related. If there’s water damage in the new kitchen you installed, the homeowner will have to prove that it came from the sink you forgot to caulk and not the leak from the upstairs bathroom.

Damages

There was actual harm. You may have forgotten to caulk the sink, but if you come back to finish the job two months later, and there hasn’t been any water damage, the customer can’t claim negligence.

Types of Negligence

The right defense to negligence will depend on the type of negligence the customer was claiming. Defending against a personal injury claim will be very different from a claim of professional negligence for property damage. Negligence claims and defenses against negligence can fall into a number of different categories. These are a few of the most common:

Professional Negligence

Professional negligence is specific to a business relationship. Customers rely on particular expertise from professionals. If a customer feels that the business owner didn’t live up to their professional credentials, they would be likely to file a professional negligence claim and your defense to negligence will reflect that.

Comparative and Contributory Negligence

Comparative and contributory negligence is when damage is only partially the fault of the business owner. For example, if a massive tree falls on a roof there will be damage no matter how well the roof was built. The customer could claim, however, that the roof was poorly constructed and the damage was worse than it would have been to a well-built roof. On the other hand, it may be partially the homeowner’s fault because they knew the tree was rotting and took no action. Whether this is called contributory or comparative negligence and how that will affect proceedings varies from state to state.

Statutory Duty

Statutory duty is where legal regulations come in. The definition of a business owner’s statutory duty is the precautions they are required to take by the law. If they didn’t fulfill those obligations and there was damage, they are liable for negligence, even if they never committed to that customer that they would take that particular step.

Assumption of Risk

Assumption of risk is a common defense to negligence claims. If a contractor is hired to build a backyard deck, they will, of course, construct sturdy, reliable railings all around which conform to all safety regulations. But there are still risks. If an adventurous kid or tipsy BBQ guest climbs the railing and falls, the homeowner cannot claim that the accident was caused by the contractor’s negligence.

First Things First: Call Your Lawyer

Many of us will instinctively recoil from a claim that we didn’t do our job right. But denial isn’t going to win us any points with a customer who is hurting, whether or not it’s our fault. A lawyer can tell you about different defense to negligence options and help you figure out which one is the most appropriate for your individual situation.

This is Why You Have Insurance

If you’re being sued for negligence, you should call your insurance company as soon as you’ve spoken to a lawyer, whether or not it’s a valid claim. For covered claims, your insurance policy, whether general or professional liability insurance will help keep the lawsuit from taking over your business so that you can focus on moving forward.

Authors

  • Sofya PogrebSofya Pogreb
  • Sanjay BiswasSanjay Biswas
  • Natalie CutlerNatalie Cutler
  • Guy GoldsteinGuy Goldstein
  • Rachel Present SchreterRachel Present Schreter
  • Alon HuriAlon Huri
  • Evyatar SagieEvyatar Sagie
  • Annie RyanAnnie Ryan
  • Zeke ScherlZeke Scherl
Rachel Present Schreter
Rachel Present Schreter | Author
Rachel is passionate about helping small businesses get the tools they need to succeed. Rachel is a marketing guru with years of experience working with tech companies, non-profits and small businesses to ensure that they are reaching the right audiences with their products.

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