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North Carolina is a contributory negligence state, which means that a personal injury claim can fail if the injured party can be found liable for any portion of their injuries. An affirmative defense is anything a person may assert to avoid responsibility in a personal injury case, and responding to these defenses is exactly why a person should hire a Durham personal injury lawyer.

Two types of affirmative defenses that may be used against the plaintiff in a personal injury case are contributory negligence and assumption of risk. Assumption of risk is when an individual understands that there is risk of harm in an activity and decides to proceed in the conduct anyway, while contributory negligence is when the individual failed to meet the expected standard of responsibility in exercising the appropriate level of care for themselves or another person. Another affirmative defense might be accorded satisfaction, where a person already resolved their claim through a contract or some other means, or a failure to mitigate damages after the harm is caused, meaning that the person failed to do everything in their power to minimize the bad effects.

If you believe you have cause to pursue a personal injury case, a Durham personal injury lawyer can help identify where the source of your injuries fits within expected harm, and where the injuries qualify for recovery from another responsible party. Affirmative defenses can potentially affect your ability to recover from the person that you might otherwise think is at fault. 

Assumption of Risk

Assumption of risk generally applies in settings in which there is a contract, such as purchasing a ticket, or signing up for an activity. For example, when an individual buys a ticket to a baseball game and goes to the stadium, they understand, and the baseball stadium wants them to be aware, that there is a risk of a foul ball being hit into the stands and striking the spectator. A batter could swing his bat, let go of it, and the bat could continue flying into the stands and hit the spectator. Sometimes, there is fine print on the back of a baseball ticket that states that by purchasing the ticket, the individual acknowledges that there is a risk of harm. That acknowledgment is known as assumption of risk.

In an assumption of risk case, there is some sort of a contractual relationship (such as a ticket) and an inherently dangerous aspect of the activity involved.  Another example of an affirmative defense is an individual joining a hockey team. It is understood that in hockey there are pucks flying around the rink and there are people swinging hockey sticks. These are inherently dangerous activities where participants could potentially get hurt.

Risk of Affirmative Defense

An affirmative defense, if successful, can preclude or limit the injured person’s claim, and can substantially and adversely affect the settlement value of a claim. Contributory negligence is an affirmative defense because if successful at establishing contributory negligence, the injured person’s claim fails.

Defending Against an Affirmative Defense

A personal injury lawyer gathers the testimony or the evidence necessary to refute the affirmative defense. For example, in car accident cases, the alleged at-fault driver may assert contributory negligence as an affirmative defense and say that the plaintiff is also at fault for the car accident. The personal injury lawyer has the opportunity to obtain the other driver’s sworn testimony, and can ask that driver everything that they saw and heard. The lawyer can ask about the defending driver’s personal knowledge of what the plaintiff did that they are alleging contributed to the accident. Frequently, the driver cannot answer the question, so the contributory negligence affirmative defense fails because there is not enough evidence to support it.

In response to an assumption of risk claim, a personal injury lawyer can argue that the harm that occurred in a particular case was outside of the anticipated scope of harm. For example, in the context of a hockey game, it is understood that hockey pucks are flying around and players are swinging hockey sticks. However, in hockey there is a rule that prohibits players from lifting up their sticks and swinging at another player’s head. If that happens, the person did not assume the risk of someone intentionally swinging a hockey stick at their head. That is outside of the scope of anticipated harm.