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Liability Defenses - What are possible causes the defense can use to 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.  

Contributory Negligence

If an injury is caused by one own’s 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.

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%.  

Act of God or Act of Nature

A natural event that causes damages such as weather related events. No human control or intervention can cause or trigger the loss.

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.  

Statute of Limitations

A statute that defines the time period for a claimant to take legal action against another party.  If no legal action is taken within this time period, 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 explanations written by William F. Schaake, CIC, CRM herein is 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 council and the terms and conditions of your insurance contract.  © 11/19/2011