ABA Family Legal Guide

Home Ownership

Property Insurance and Other Protections

Floor Wax and Dog Attacks: Liability Issues

What happens if someone is injured on my property and we are both at fault?

While your best defense to any charge of negligence is that you exercised due care, there are several other defenses available. In some cases, a jury may decide that although a homeowner was partially responsible for what happened, the person injured was also partially responsible. This is called comparative or contributory negligence. For example, if you forget to tell your houseguest that you have just dug a pit in your backyard for the new septic system, and the guest decides to get a breath of fresh air and wander around in the backyard in total darkness, a jury might find both of you partly responsible for your guest's broken leg. In that case, the jury might reduce the amount of the damage award you might otherwise have to pay.

In other cases, the jury might decide to absolve you of any responsibility because of what the law calls assumption of risk. For example, when a Georgia homeowner and his neighbor were trying to get rid of a nest of wasps, the neighbor climbed a ladder and sprayed the nest with insecticide. The wasps swarmed out, and the frightened neighbor fell off the ladder. When he sued the homeowner for the resulting injuries, the court ruled that the neighbor knew perfectly well that wasps tend to swarm, yet he assumed the risk. In that case, the homeowner was not liable.