Third Party Defenses to Action

When a third party is sued for his role in causing an employee’s injury, he may present various defenses. One such defense is the contributory negligence of the employee or his employer. If the employee shared in causing his injury, the contributory negligence defense could be wielded by the third party and be just as viable as with any other negligence action. When the employer is the employee’s subrogee, the defense is as powerful against the employer. Further, in those jurisdictions adhering to the comparative negligence rule, the employer’s recovery would be reduced by the amount of fault allocated to the employee. When an employer negligently contributes to the employee’s recovery, it is generally held that the contributory negligent defense is ineffectual; as the employer is stepping into the shoes of the employees, its own negligence has no bearing on the “employee’s” cause of action.

Another defense that can be presented by the third party is that the statute of limitations has run on the action. Generally, the limitations period applicable to the employee’s action is also applicable to his subrogee. Further defenses include that the subrogee’s action was preempted by another statute and that a settlement agreement entered into between the employee and the third party barred the employer’s action because no “fault” by the third party had been proved or admitted.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.