There are many defenses to personal injury cases. There are those defenses which “negate” or “deny” liability like mistake of fact and there are also defenses which “avoid” liability such as “affirmative defenses” like assumption of the risk. By raising an affirmative defense, the defendant is asserting that even if the defendant committed all of the wrongful acts alleged by the plaintiff, the plaintiff has no cause of action because there are other facts which, under the law, justify or excuse the otherwise wrongful action. Here are some defenses to personal injury claims.

 

PROCEDURAL DEFENSES

There are certain defenses which have nothing to do with the cause of action but with procedural defects regarding how, where, and when the case is filed. These include:

 

• lack of standing or not having the legal right to bring a particular case to court by the plaintiff; the court’s lack of jurisdiction over the case,

 

• the hearing of the case in the wrong venue;

 

• failure to state a claim upon which relief can be granted. In other words, the complaint does not allege all the necessary elements of a cause of action;

 

• the expiration of the statute of limitations;

 

If no statute of limitations exists, the rule of laches may apply because the plaintiff has waited too long to bring the claim; or there is a preemption of the plaintiff’s claims by a specific state or federal law that governs cases of the type being litigated.

 

SELF-DEFENSE, DEFENSE OF ANOTHER, CONSENT

Other affirmative defenses are based on the facts of the case and include: the defendant acted in defense of himself, another person, or property; another defense in intentional tort cases is consent;

 

NEGLIGENCE DEFENSES

Some defenses are only used in certain specific types of personal injury cases. Defenses in negligence lawsuits alleging comparative or contributory negligence relate to the plaintiff’s role in the accident and have the effect of denying that the defendant is completely 100% at fault for the accident and damages caused thereby.

 

Assumption of the risk is a defense where the plaintiff understood the risk of injury but acted regardless of such risk, and thus assumed the risk. Similarly, the plaintiff may incur the risk of his injuries by voluntarily undertaking an act that might injure him.

 

DEFAMATION DEFENSES

In a defamation case, the defendant might assert that the defamatory statement is privileged or even true, that it is an opinion, or that it was not published to a third party. Contracts may govern the and there may exist a “limitation on liability” clause.

 

PRODUCTS LIABILITY DEFENSES

In a products liability case, the defendant might claim the intervention of a learned intermediary assumed the responsibility of warning or instructing the plaintiff about the proper use of the product. Similarly, a defendant might assert that the plaintiff himself is a sophisticated user who knows minimally as much about the product as the designer or manufacturer. In a products liability case, the defendant might also assert that the product was state of the art, that there was a misuse of the product by the plaintiff or someone else, or that some modification of the product occurred, thus overriding its warranty, warnings and/or safety features.

 

OTHER DEFENSES

The plaintiff may have been guilty of a failure to mitigate damages, or to reduce as much as possible all of the costs that result from injury.

 

The defendant acted out of the necessity to prevent greater harm.

 

Another person is partly or entirely responsible for the plaintiff’s injuries and should be included in the case. This is the defense of nonparty liability.

 

An intervening or superseding cause breaks the connection between the defendant’s act and the plaintiff’s injury, such that the defendant is not the one responsible for the injury.