You’ve Been Wronged, but Were You also Wrong? Analysis of Dual Faults

Woman injured

Negligence is acting, or failing to act, in the manner a reasonable person would under similar circumstances. Someone who acts negligently is liable for damages if someone is harmed by the negligent act, or failure to act.

What if the person harmed also did something wrong? There are different types of dual, or joint faults with different legal results and calculations. Two main types of fault of more than one person include: comparative fault and contributory negligence. There are other types of fault that fall under these two categories.

Comparative Fault in Minnesota

Minnesota statutes describe comparative fault in cases involving death, personal injury, property damage, and economic loss. Comparative fault is the fault, to some degree, of more than one person.

According to Minnesota statutes, comparative fault does not prevent recovery by an injured plaintiff for damages that are the fault of the defendant, as long as the fault of the plaintiff is not greater than the fault of the defendant. However, even when the fault of the plaintiff is not greater than the fault of the defendant, the plaintiff’s recovery, or damage award, may be diminished in proportion to the amount of fault of the plaintiff.

A Court may ask the jury to determine the amount of damages and percentage of fault attributable to each party. The court shall then reduce the amount of the damage award to the plaintiff by the amount of fault attributable to the plaintiff.

Contributory Negligence in Minnesota

Contributory negligence is the failure of the plaintiff in a case to exercise reasonable care. In some cases, contributory negligence is not a legally permissible defense, whether or not it occurred. In other cases the law permits contributory negligence as a defense to the allegations.

The negligence of a parent is not transferred to the parent’s child, and therefore an injured child may recover for injuries sustained as a result of the negligence of a third party, despite the negligence of the child’s parent. However, the negligent child’s parent may not make his or her own claim due to the injury of his or her child in these circumstances.

Assuming the Risk in Minnesota

Assumption of the risk is another legal consideration in determining fault. Both primary and secondary assumption of the risk principles exist under Minnesota law.

Primary assumption of the risk does not lead to a comparison of fault. Primary assumption of the risk occurs where a plaintiff has assumed the risk in the primary sense, and therefore the defendant owes no duty to the plaintiff, period. Primary assumption of the risk occurs in situations where the parties have voluntarily entered into a relationship in which the plaintiff decides to assume well-known, incidental risks.

Sometimes primary assumption of the risk may be implied by participation in sporting events and other naturally dangerous or risky activities. One example of a naturally dangerous or risky activity would be fighting fires. Primary assumption of the risk is a complete bar to any legal recovery by the plaintiff for damages.

Secondary assumption of the risk is another way of evaluating the faults of more than one person in Minnesota. Some courts have merged secondary assumption of the risk with contributory negligence finding that the only question is whether the plaintiff was negligent under the circumstances with regard to his or her own safety.

With secondary assumption of the risk, unlike primary assumption of the risk, the plaintiff’s assumption of the risk or own negligence is not a complete bar to the plaintiff’s recovery of an award of damages for the plaintiff’s injury.

Product Misuse in Minnesota

Product misuse is a defense in some cases. Product misuse as a defense means that the plaintiff’s misuse of a product was negligent. This may also be merged into the defense of contributory negligence. Product misuse is essentially a type of contributory negligence.

Failure to Mitigate or Avoid an Injury

Sometimes plaintiffs unreasonably fail to avoid an injury or mitigate damages. In such circumstances the concepts of comparing fault of the plaintiff to that of the defendant may be applied.

When a plaintiff unreasonably fails to avoid an injury or mitigate damages, either the plaintiff’s failure to mitigate damages will be considered as an aspect of the plaintiff’s contributory negligence, or it will be subject to the comparative fault comparison, but not both.

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