December 20

What Are Some Common Defenses in Personal Injury Cases?

In personal injury, numerous defenses are available to the defendant, with varying impact – some can have the lawsuit entirely dismissed. In contrast, others will simply reduce the compensation to which the plaintiff is entitled. Whether you’re a personal injury plaintiff concerned about the strength of your claim, or a defendant concerned about your potential liability, it’s good practice to understand the defenses that can be asserted both for and against you.

Pure Comparative Negligence – Plaintiff’s Fault

Under pure comparative negligence, the fault of each involved party is determined as a percentage of the total mark. That percentage is then applied to the total damages. This can reduce Plaintiff’s settlement by the amount he or she was at fault for the accident or injuries. Pure comparative negligence operates as a partial defense in personal injury actions – while it doesn’t shield the defendant from liability for the injuries caused, it may reduce their total liability.

Because Pasadena applies a pure comparative negligence scheme, defendants who have failed at raising alternative, more complete defenses can still submit a last-ditch reason by arguing that the plaintiff was at least partially at fault for their injuries.

Assumption of Risk

The assumption of risk defense bars a plaintiff’s recovery for injuries in a negligence-based personal injury action if said plaintiff: 1) had actual knowledge of the risk involved in the activity they engaged in, and 2) voluntarily accepted the risk. To succeed in an assumption of risk defense, the defendant also has to prove that the activity was inherently dangerous – that plaintiff’s injuries were not explicitly caused by the defendant’s negligence but were a natural consequence of engaging in the dangerous activity.

In cases involving implied assumption of risk, the plaintiff and defendant do not enter into a written or explicit verbal agreement. Instead, the plaintiff behaves so that a reasonable person would determine that the plaintiff was aware of and accepted the inherent danger of the activity at issue. 

Failure to State a Claim

If the defendant can prove that the plaintiff has failed to establish one of the fundamental elements of their claim (here, negligence), the plaintiff’s claim will be dismissed. This is a complete defense. It doesn’t merely reduce the defendant’s liability: it shield’s the defendant from liability altogether. Let’s consider a negligence-based personal injury claim for use as an example.

In a negligence action, the plaintiff must prove several elements of his claim: 1) that the defendant owed him a duty of care, 2) that the defendant breached this duty, 3) that the defendant’s breach caused the plaintiff’s injury; and 4) the plaintiff suffered damages.

The defendant may be able to get the court to dismiss the plaintiff’s claim if the defendant can show that the plaintiff failed on one or more of these elements. The defendant may be able to show that no duty of care was owed, that the defendant did not breach the duty of care, or even that the defendant’s breach of the burden of care was not the substantial cause of the plaintiff’s injury. Of course, this gives the defendant many options for asserting a complete defense. As a plaintiff, having your claim dismissed (with prejudice) means you are out of luck. You cannot bring the same claim against the defendant.

Failure to Mitigate Damages

If the facts allow it, a defendant may assert a partial defense (which will not shield the defendant from liability but will reduce their overall liability) that the plaintiff has failed to mitigate damages. Plaintiffs must mitigate their damages, or perhaps more simply stated, to ensure that they take reasonable actions not to worsen their injuries and to take reasonable steps to minimize them. For example, a plaintiff seriously injured in an accident is reasonably expected to go to the hospital for medical care following the accident. If the plaintiff fails to go to the hospital after the accident, and if the plaintiff’s condition materially worsens as a result, then the defendant may be able to argue that the plaintiff failed to mitigate their damages.

Suppose a defendant can show that the plaintiff failed to mitigate their damages properly. The court may reduce the total damages accordingly, as the defendant cannot be held responsible for the plaintiff’s negligent actions so far down the causal chain of events.

While there are many defenses in personal injury cases, these are just a few. An experienced Pasadena personal injury attorney can walk you through any defense that may or may not apply to your specific case. Our Pasadena law firm, Grigoryan Blum & Grigoryan, has attorneys ready and willing to speak to you. Schedule a free consultation to learn more about how we can help you.

Click here for our complete guide to hiring a personal injury lawyer.


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Pasadena, CA 91103
United States