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Common Defenses to Personal Injury Claims

November 9, 2017

The success of your personal injury claim may depend on whether the defendant asserts a viable defense.  There are a number of legal theories and defense strategies that may prove fatal to your claim.  Even though the defendant is the proximate cause of your injuries, he may not be liable for your damages.  Bryan W. Crews, an Orlando personal injury attorney, will evaluate your case and discuss the viability of your claim.

Comparative Negligence

Florida is a pure comparative negligence jurisdiction.  This means that your damages are reduced by your degree of fault.  In a car accident, if the plaintiff is deemed 40% at fault, her recovery will be reduced by 40%.  This defense to your claim means that a full recovery is not possible.  In this scenario, the defendant may make a settlement offer, or an argument at trial that he contributed to the accent, but so did the plaintiff.  This is not a complete bar to recovery, but if the jury determines that you were over 50% at fault, recovery for damages becomes difficult.

Factual Disputes

Every detail of your personal injury claim will more than likely be disputed.  Documenting each and every aspect of your injury is critical to the success of your claim.  Without the appropriate supporting documentation, defendants and/or their insurance companies are less likely to make a settlement offer that adequately compensates for your injuries.  And if your claim proceeds to trial, convincing a fact-finder becomes increasingly difficult.

Defenses to Intentional Torts

In a personal injury claim involving an intentional tort, the defendant is not liable for negligent behavior if you consented to the defendant’s behavior.  Plaintiffs cannot give consent and then sue for damages.  Unless, the scope of the consent is exceeded.  A common example of exceeding the scope of consent are medical procedures.  Patients consenting to a tonsillectomy are not giving the physician permission to perform an appendectomy.  Consent can be express, or implied, and Bryan W. Crews, your Orlando Personal Injury will gladly evaluate your claim.

The facts of O’Brien v. Cunard Steam Ship, illustrate apparent consent.  While onboard the boat, a passenger held her arm out while a doctor administered a vaccination. The plaintiff said nothing to the doctor, but later had a bad reaction to the vaccination.  The passenger sued, and lost.  The court held that even though the consent was not explicit, the doctor could have reasonably relied on the passenger’s behavior and overt act of extending her arm as consent to receiving the vaccination.

Self-defense, defense of others, and defense of property are viable defenses to personal injury claims.  Injuries resulting from self-defense, defense of others, or defense or property more than likely involving criminal behavior.  Florida’s statute governing self-defense may be applicable, and it has undergone recent scrutiny.  But as a general rule, the use of reasonable force will serve as a defense in a personal injury lawsuit.

To understand the limits of your personal injury claim or defenses that may be raised, contact Bryan W. Crews, an Orlando personal injury attorney.



November 30, 2017
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