Personal Injury -- Defense

• Intentional: These are wrongs intentionally carried out by the defendant. Battery and assault, for instance, are intentional torts.
• Negligence: There are four necessary parts to negligence: a duty of reasonable care, breach of that duty, causation, and resulting injuries or damages. To satisfy the second element, breach of duty, the defendant must be shown to have acted without reasonable care, or to have deviated from how an ordinary careful citizen would behave under like circumstances.
• Strict Liability: Strict liability holds the actor liable even without the presence of intent to harm and the presence of demonstrated due care. Under strict liability, an actor can be held responsible for the injury if the incident that caused it is abnormally dangerous.

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Defenses for Personal Injury Lawsuit

Negating a Necessary Element: In order for there to be grounds for a personal injury lawsuit, certain necessary elements must be established to allow a jury to conclude that the tort has been committed. For instance, to constitute a battery, there has to be intent to harm or assault another party. In order to be considered negligence, there must be a breach of the duty of care. The defendant may simply negate one or more of the necessary elements of the tort. You may, for instance, present evidence in a battery case that you never touched the injured party, or that you did so unintentionally. Or in the case of negligence, you may show there was no duty to be breached.

Affirmative Defenses: The affirmative defense position asserts that, even if all the necessary elements for a personal injury offense are met, you are still not liable because of the additional facts that allow you to avoid liability. Some affirmative defenses have nothing to do with the incident that resulted in injury itself, but rather the procedure in which the suit is filed. For example, a defendant might take the position that the claim against her is barred by the statue of limitations, or the statutory period within which a lawsuit must be brought on a claim. This position holds that, even if the plaintiff can show that the defendant intentionally inflicted injury, the defendant is not liable because the suit was brought too late. Another common affirmative defense is self-defense, in which the defendant asserts that the injury was a result of protecting him or herself. In this case, even if all the necessary elements for battery are met, the defendant is not liable for the plaintiff’s injury because he or she merely acted in the interest of self-protection.

Shifting the Burden: The defendant may also shift the burden to someone else. In a case where there are multiple defendants, for example, one defendant may argue and show evidence that the other defendant, and solely the other defendant, is to be blamed for the injury incurred.

By Annie Pan