Affirmative defense for personal injury occurs when the defendant provides evidence in the hope of negating their liability. Negating liability is possible even if it has been proven the defendant is responsible for the personal injury. The following are some common examples and instances of affirmative defenses for personal injury claims.

Filing after the Personal Injury Statute of Limitations

The statute of limitations can be thought of as a sort of deadline. If you suffered a personal injury and wished to sue, the suit must be filed by the deadline. The scope of the statute of limitations will generally begin on the day on which one sustained the injury.

Complaints of personal injury must be filed within two years of the initial injury. It is essential to file your lawsuit within that two-year timeline because if you fail to do so, it is likely that the court will not hear the case. The would-be plaintiff will not be able to recover damages if this occurs.

Exceptions to the Statute of Limitations

Certain exceptions may extend this two-year statute of limitations, during which a personal injury suit must typically be filed.

  1. If the injury was not found right away, then the statute of limitations is one year from the date of the injury rather than two.
  2. Discovery rule exception: the statute of limitations count down does not begin until the injury is discovered, rather than immediately after it happened.

Let’s illustrate this with an example. Person X goes to a store and slips and falls because the store behaved negligently and did not put out wet floor signs. This fall does not cause any immediate observable injury. However, say person X goes to the doctor because they feel aches and pains. The doctor then discovers that the injuries person X sustained from the fall at the store are much more severe. Because of the rule of discovery, the statute of limitations time limit would not begin until the doctor discovered the full extent of the injury.

Affirmative Defense through Apportionment of Responsibility

Apportionment of responsibility applies when individuals other than the defendant contributed to the plaintiff’s injuries. The apportionment of responsibility means that damages must be divided amongst all contributors of the personal injury, i.e., everyone gets their “fair share.”

In this situation, the jury will allocate fault, and it will usually be based on a percentage. For instance, if the jury believes that one person is responsible for 80% of the injury and the other responsible for 20%, then that is how they will split the cost when awarding damages.

Affirmative Defense through Failure to Mitigate Damages

Failure to mitigate damages applies when the plaintiff does not take reasonable steps to prevent or diminish damages they claim to have endured. Therefore, while the defendant may be partially or primarily responsible for the injuries the plaintiff sustained, there may have been some steps the plaintiff neglected to take that could have prevented the injury.

For example, say the defendant was driving recklessly and caused a car accident that injured the plaintiff. It is clear, upon observation, that the plaintiff is injured. However, the plaintiff decides not to go to the hospital right away. After a few days, their condition worsens, so they decide to go to the hospital. Because the plaintiff did not take the necessary steps after the accident, they would likely be partially responsible and unable to recover the total damages.

Affirmative Defense through an Act of God

An “Act of God” applies to injuries and damages the plaintiff endured and were caused by a natural occurrence rather than the defendant. The Act of God defense is what an insurance company may use if there is a natural disaster or unforeseen medical emergency.

For instance, this defense could be used if a natural disaster caused a tree branch to knock into your property and injure someone. A landlord may use this defense and say they are not liable because they are not at fault for the tree falling. However, if they should have taken steps to make sure a tree branch was not too long to prevent it from knocking into a house, they may be found liable.

Affirmative Defense through Superseding Cause

Superseding cause occurs when the plaintiff’s personal injury is almost entirely caused by an incident occurring before the incident of personal injury. Suppose the personal injury occurred due to a prior incident. In that case, the defendant is not responsible for paying the plaintiff’s claimed damages.

For instance, say someone put out a “Beware of Dog” sign on their yard fence. They do this so people know that their dog can be aggressive. Later, some neighborhood teenagers walk by and decide to remove the sign because they think it will be funny. The dog owner is not aware that their sign has been removed. Another individual walks by their house without not knowing the dog is dangerous. They try to interact with the dog but instead get attacked. In this scenario, likely, the dog owner would not be found wholly or even partially liable because they took the necessary steps to prevent someone from being injured by their dog.

Pure Comparative Negligence Rules

Pure comparative negligence refers to the process in a personal injury case where the court will determine what percentage of the responsibility should be placed on the plaintiff. The comparative negligence accounts for the plaintiff’s actions or irresponsibility, which led to the injury and caused them to file the initial lawsuit. If the plaintiff was partially responsible for the damages they suffered, then they will have to pay for the portion that the court deems “their fault.”

For example, say you were riding your bike in the middle of a neighborhood street. Then, tragically, a car hit you. You sue the car driver for personal damages to yourself and your bike. However, it may be the case that the judge decides you are partially responsible for the damages you endured. The judge claims that you made the conscious decision to ride your bike in the middle of the street. Even though neighborhood streets are relatively safe, you still knew that there was a possibility that a car might hit you. The judge will then determine what percentage of the damages are due to your irresponsibility. This is the percentage of the costs you will have to pay.

If you or a loved one has been involved in a personal injury accident, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.

Contact Pride Legal

If you or a loved one has been involved in a personal injury accident, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.

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