{"id":44,"date":"2019-12-03T00:47:28","date_gmt":"2019-12-03T00:47:28","guid":{"rendered":"https:\/\/courses.lumenlearning.com\/ny-personal-injury-law\/?post_type=chapter&p=44"},"modified":"2019-12-17T19:28:05","modified_gmt":"2019-12-17T19:28:05","slug":"defenses-to-negligence","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/ny-personal-injury-law\/chapter\/defenses-to-negligence\/","title":{"raw":"Defenses to Negligence","rendered":"Defenses to Negligence"},"content":{"raw":"DEFENSES TO NEGLIGENCE:<\/strong>\r\n\r\nOften in a negligence lawsuit, the defense will raise what are called \u201caffirmative defenses.\u201d This could mean that even if a plaintiff\u2019s claims of negligence are true, the defendant may not be responsible if the affirmative defenses can be proven.\r\n\r\nComparative Negligence:<\/strong>\r\n\r\nSometimes, there is negligence on the part of both parties involved in a negligence lawsuit. When this happens, the jury will be asked by the defendant to consider the comparative negligence of the plaintiff and reduce the percentage of the plaintiff\u2019s recovery of damages by that percentage. See https:\/\/law.justia.com\/codes\/new-york\/2015\/cvp\/article-14-a\/<\/a>\r\n\r\n(April 8, 2019)\r\n\r\nAssumption of Risk:<\/strong>\r\n\r\nThe assumption of risk defense means the plaintiff, either expressly or by implication, understands that the risk of injury is inherent with the situation or plaintiff\u2019s conduct and therefore waives the right to recover damages if injured. Sometimes, this is by contract. You want to go skydiving and sign a waiver with the company providing that service assuming the risk of injury if things don\u2019t go as planned. Jumping out of an airplane by its very nature is risky.\r\n\r\nAnother example would be playing high school sports. There are inherent risks associated with playing sports in general, and students who participate in those activities assume the risk of injury.\r\n\r\nStatutes of Limitations:<\/strong>\r\n\r\nThe law puts deadlines on when most legal actions can be commenced, both civil and criminal. These limits are called \u201cstatutes of limitations.\u201d They are set by statute. In NYS, most, not all can be found in either the CPLR for civil cases or the CPL for criminal cases. There are numerous reasons for having statutes of limitations. For example, over time memories of witnesses diminish, evidence gets more difficult to obtain or may be lost, and people move. In NYS, a general personal injury negligence case has, pursuant to CPLR \u00a7 214(5), a three year statute of limitations Medical malpractice on the other hand, even though it is based on negligence, has a two year six month statute of limitations pursuant to CPLR \u00a7 214-a.\r\n\r\nTolling of the Statute of Limitations:<\/strong>\r\n\r\nIn some instances, the statute of limitations may be extended or tolled. Under NYS law, a minor usually has three years from the date of their eighteenth birthday to commence their lawsuit. However, if the minor\u2019s lawsuit is a medical malpractice claim, the statute of limitations cannot be extended for more than ten years from the date of the act or omission giving rise to the injury. In some situations, such as mental incapacity, the statute of limitations may be tolled three years.\r\n\r\n ","rendered":"

DEFENSES TO NEGLIGENCE:<\/strong><\/p>\n

Often in a negligence lawsuit, the defense will raise what are called \u201caffirmative defenses.\u201d This could mean that even if a plaintiff\u2019s claims of negligence are true, the defendant may not be responsible if the affirmative defenses can be proven.<\/p>\n

Comparative Negligence:<\/strong><\/p>\n

Sometimes, there is negligence on the part of both parties involved in a negligence lawsuit. When this happens, the jury will be asked by the defendant to consider the comparative negligence of the plaintiff and reduce the percentage of the plaintiff\u2019s recovery of damages by that percentage. See https:\/\/law.justia.com\/codes\/new-york\/2015\/cvp\/article-14-a\/<\/a><\/p>\n

(April 8, 2019)<\/p>\n

Assumption of Risk:<\/strong><\/p>\n

The assumption of risk defense means the plaintiff, either expressly or by implication, understands that the risk of injury is inherent with the situation or plaintiff\u2019s conduct and therefore waives the right to recover damages if injured. Sometimes, this is by contract. You want to go skydiving and sign a waiver with the company providing that service assuming the risk of injury if things don\u2019t go as planned. Jumping out of an airplane by its very nature is risky.<\/p>\n

Another example would be playing high school sports. There are inherent risks associated with playing sports in general, and students who participate in those activities assume the risk of injury.<\/p>\n

Statutes of Limitations:<\/strong><\/p>\n

The law puts deadlines on when most legal actions can be commenced, both civil and criminal. These limits are called \u201cstatutes of limitations.\u201d They are set by statute. In NYS, most, not all can be found in either the CPLR for civil cases or the CPL for criminal cases. There are numerous reasons for having statutes of limitations. For example, over time memories of witnesses diminish, evidence gets more difficult to obtain or may be lost, and people move. In NYS, a general personal injury negligence case has, pursuant to CPLR \u00a7 214(5), a three year statute of limitations Medical malpractice on the other hand, even though it is based on negligence, has a two year six month statute of limitations pursuant to CPLR \u00a7 214-a.<\/p>\n

Tolling of the Statute of Limitations:<\/strong><\/p>\n

In some instances, the statute of limitations may be extended or tolled. Under NYS law, a minor usually has three years from the date of their eighteenth birthday to commence their lawsuit. However, if the minor\u2019s lawsuit is a medical malpractice claim, the statute of limitations cannot be extended for more than ten years from the date of the act or omission giving rise to the injury. In some situations, such as mental incapacity, the statute of limitations may be tolled three years.<\/p>\n

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Candela Citations<\/h3>\n\t\t\t\t\t
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