Negligence Dilution: An Alternative Defense

NEGLIGENCE DILUTION: AN ALTERNATIVE DEFENSE

When defending negligence lawsuits, the first lines of defense include arguments that the defendant is not negligent and the plaintiff is more negligent than the defendant. However, in the alternative, the defendant may argue negligence on behalf of other parties, who may not even be named in the lawsuit, in order to dilute any negligence on behalf of the defendant. A common example is a third party claim in the context of a work injury. In such a case, the plaintiff is injured at work, resulting in the worker’s compensation exclusive remedy statute prohibiting any negligence claimed against the employer. However, a claim may be brought against an allegedly negligent third party, such as a manufacturer. When the claim against the third party goes to trial, the third party may argue negligence on behalf of the employer, even though the employer is not a party to the action and cannot be held liable. The defendant third party should argue that the allegedly negligent employer be on the verdict for a consideration as to the employer’s negligence. Such a tactic may dilute or even bar any liability on behalf of the third party defendant. When the verdict is drafted in this way, the negligence apportionment argument can become an effective last line of defense.