Defenses to Personal Injury Cases in California
If you have been injured in an accident and want to recover damages, then it’s important to know how the other side may fight your claim. This is especially important when you have been sued in a personal injury case and need helpful information, or you are looking for a lawyer to defend you. It is worth saying that personal injury cases are not always successful––either the victim may sometimes end up with nothing or less than what would have been considered just and fair––all because they didn’t consider the defendant’s possible arguments to avoid or reduce liability.
There are statutory defenses as well as affirmative ones. A smart, experienced personal injury attorney will have the insight to anticipate what the at-fault party may argue. That’s why it is critical to find the right attorney in Los Angeles. We help you in that endeavor. So, contact us as soon as you can to find a committed, respected personal injury attorney. In the meantime, here’s an overview of some of the most common defenses at-fault or defending parties will try to employ.
Defenses to Negligence
When a person or entity’s negligent act causes bodily harm to another person, the harmed person can claim damages from the negligent party or his/her insurance company, and/or file a lawsuit. The alleged at-fault party, however, has an opportunity to defend against the claim or lawsuit. Defenses may be statutory or affirmative. Statutory simply means it is a defense created by statute while affirmative means the defendant admits guilt but has a justification for the wrongful act. When a defendant invokes a defense, however, the defendant has the burden to prove it.
Common defenses to personal injury claims based on negligence include the following.
Pure Comparative Negligence is a statutory defense where the defendant argues the plaintiff contributed to his/her own injury. This type of defense typically reduces the compensation package but does not allow the defendant to avoid liability altogether.
Assumption of Risk is a statutory defense where the defendant argues the plaintiff assumed the risk. Some examples include: a trespasser assuming the risk of a dog bite when he unlawfully entered the premises of another person and the dog attacked him; a football player assuming the risk of harm when playing football according to the rules and he suffers a concussion or another sports injury; or a vet assuming the risk of an animal attack during the course of his professional work.
Consent. This is an affirmative defense similar to the assumption of risk where the defendant argues that the plaintiff consented. For example, in cases of negligent sexual transmission of diseases––if the defendant can prove the plaintiff consented to sexual contact knowing the existence of the disease, the defendant may have a viable defense if the plaintiff’s claim was based on acquiring the sexually transmitted disease.
Statute of Limitations is an affirmative defense where the defendant argues the time to file a claim or lawsuit has expired. This defense, if proven accurate, will relieve the defendant of all liability and the case will be dismissed. That is why it is critical to your case to retain a trusted personal injury attorney in Los Angeles as soon as possible.
Emotional State of Patient is an affirmative defense where the medical professional claims that the risks of a medical procedure were not disclosed to the plaintiff because the plaintiff would have been so upset that he would not have been able to reasonably assess the risks and, as such, would not have reasonably been able to consider the risks of refusing the medical procedure.
Absence of an Element of Personal Injury Claims. Personal injury cases are only successful when the plaintiff can prove four specific elements: (1) Duty; (2) Breach; (3) Causation; and (4) Damages. If one of these elements is lacking or not proven beyond a preponderance of the evidence, the claim will fail. The defense, for example, can show that though there was a duty, breach of that duty, and an injury caused by the breach, the injury was mostly to a plaintiff’s ego, thus, legal damages could not be established. Without damages, the case fails.
Defenses to Negligence Per Se
Negligence per se occurs when a law was violated and the violation was a substantial factor in causing harm to another person. There are specific defenses to negligence per se claims.
Violation Excused is a rebuttal to a presumption of negligence. This defense may be viable if the defendant can show the violation of the law was reasonable because of the defendant’s incapacity (e.g., disability) or the defendant––even though taking reasonable care––was unable to avoid violating the law due to (1) an emergency caused by someone else’s misconduct; or (2) greater risk of harm to the plaintiff, defendant, or others.
No Violation is a defense if the defendant proves he did not violate the law, effectively challenging a negligence per se claim. If the defendant is successful, he or she still has to defend against negligence claims. The jury will have to decide first if the law was violated, and if it determines it wasn’t, it will then have to decide if the defendant was negligent despite not having broken the law and if that negligence substantially contributed to the plaintiff’s injury.
Violation of Minor Excused is a rebuttal to negligence per se claims and will be successful if the defendant is a minor who violated the law while also being as careful as a reasonably careful child of the same age, intelligence, knowledge, and experience would have been in the same circumstances.
Defenses to Medical Malpractice
Medical negligence involves claims or lawsuits against medical professionals and facilities. Defenses can include any above-mentioned under negligence claims but can also include the following defenses specific to medical negligence cases in California.
Success not Required is an affirmative defense where the defendant is not necessarily negligent simply because efforts were not successful or makes a mistake considered reasonable given the circumstances. When a person undergoes a medical procedure or treatment, the desired results are not always rendered even when the doctor is skilled, knowledgeable, and careful as other reasonable doctors would be in similar circumstances. If this is true, the defendant has a defense.
Alternative Methods of Care is an affirmative defense where a doctor chose a medically accepted method of treatment or diagnosis over another medically accepted one, even though the latter was a better choice. For example, maybe your injury could have been surgically addressed rather than via medicine, but your doctor chose medicine over the better option of surgery. If the medicine failed to effect the desired result, the doctor will likely not be found liable.
Patient’s Duty to Provide for the Patient’s Own Well-Being is an affirmative defense where the defendant is not responsible for the plaintiff’s injury because the plaintiff failed to use reasonable care in following the medical professional’s instructions or care plan and because of this failure, the plaintiff was injured.
Plaintiff Would Have Consented is an affirmative defense the defendant can make when a plaintiff is harmed from a medical procedure and claims he/she did not consent to it. To invoke this defense, the defendant claims the plaintiff would have consented to the procedure even after being informed of the procedure’s risks. The defendant must prove that the plaintiff would have consented to the medical procedure even (1) after being informed of the risks; and (2) in spite of the facts a reasonable person in the same situation would not have consented.
Waiver is an affirmative defense the defendant can use when the plaintiff asked not to be informed of the medical procedure’s risks.
Simple Procedure is another affirmative defense in California where the medical professional or facility claims it did not have to inform the plaintiff of a medical procedure’s risks when (1) it is a simple procedure; and (2) the risks are commonly understood.
Defenses to Gross Negligence
Gross negligence means the defendant lacked any care or took an extreme departure from what a reasonably prudent person would have taken under the same circumstances to prevent harm. In some cases, a statute will identify what constitutes gross negligence versus ordinary negligence.
In addition to the above defenses, the only other defense available in gross negligence cases is when the negligence is actually ordinary and not gross. When the wrongful act that caused harm was indeed ordinary and the plaintiff assumed the risk of ordinary care, then the defendant has a viable defense. For example, if you go skiing and sign a waiver that relinquishes the ski resort of liability, you cannot claim gross negligence if you fell off a ski lift that was running under normal circumstances (compared to, say, a ski lift that was accelerating in speed above normal speed because a few staff members wanted to get some laughs, and as a result, you fell and injured yourself).
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Defenses to Recklessness
Recklessness is a greater level of liability than negligence and gross negligence. Oftentimes, these cases can result not only in compensatory damages but punitive damages. A defendant will fight hard against such claims, and to do so, can use any of the above defenses. A defendant may also be able to successfully use either of the below two defenses.
Absence of Knowledge is a defense that disproves one fundamental element of recklessness: that the defendant knew that his or her conduct was dangerous to others. If the defendant was unaware of the dangers, then a jury must determine if the defendant should have known that his actions were dangerous. Of course, the jury may find that the defendant was still negligent, if not reckless or grossly negligent.
Absence of Danger is another defense that disproves another fundamental element of recklessness: that others would be placed in danger. If the defendant can prove that the conduct did not actually place anyone in danger and would not have placed anyone in danger if there had been people around, then it could be a viable defense. Of course, the jury may find that the defendant was still negligent.
Defenses to Intentional Torts
Intentional torts differ from claims of negligence given that the wrongdoing was intentional and, in many cases, is also criminal. Here are the most common defenses employed in intentional tort cases.
Absence of Intent is a defense to an intentional tort and is invoked when the defendant claims he or she did not intentionally harm the other person. Of course, the defendant has the burden to prove the absence of intent. If successful, then a jury will still need to determine if the defendant was negligent.
Consent can be a defense in some intentional tort claims when the plaintiff gave permission to the defendant to engage in conduct that is otherwise unlawful. For example, in assault cases, if the plaintiff consented to fight but is then injured, the defendant can successfully invoke consent if he or she proves it.
Self-defense or Defense of Others is a defense when the defendant can prove he/she did the act to defend himself/herself. It’s also a defense when the defendant commits an act to defend a third party or his/her own property.
Necessity can also be a defense when the claim involves conversion or trespass to real or personal property. For example, during a storm, the defendant tied his boat to the plaintiff’s dock. This act damaged the dock but was necessary to save the defendant’s boat or someone’s life. Even though necessity is a defense, it usually only wards off punitive damages––the defendant may still be ordered to pay for actual damages. Necessity can be private (when one protects private property or a small group) or public (when one protects public at large).
Justification or Authority is a privilege that the defendant can use against an intentional tort claim and basically means the defendant was justified or authorized in his/her act for the social good. For example, a mother in California was sued for spanking her child. The court found that the mother was justified to reasonably discipline her child and successfully won her case.
Defenses to Strict Liability
Strict liability cases typically involve either abnormally dangerous activities, product liability, or animal attack cases. Defenses can include the following.
Provocation is a defense in dog bite or some animal attack cases where the defendant alleges (and must prove) the plaintiff provoked the dog.
Trespass is another defense in dog bite cases where the defendant shows the plaintiff was unlawfully on the property at the time the dog bit or attacked him/her.
Sophisticated User is an affirmative defense in product liability cases where the defendant claims the plaintiff––by virtue of his/her position, profession, etc.––should have known of the dangers of using a particular product. This defense is invoked most often in failure to warn or inadequate warning claims.
Product Misuse or Modification is a defense a defendant invokes when the plaintiff misuses a product or modifies a product in an unforeseeable way and this misuse causes harm.
Inherent Danger is another product liability defense a defendant uses when a plaintiff claims a product is defective because it is dangerous. Under this defense, the defendant must show that the product––though dangerous––is no more dangerous than the ordinary consumer can expect. For example, a knife is inherently dangerous but no more dangerous than what you would expect.
Other Ways an At-Fault Party May Defense Itself
It’s not always about the defense but the argument and the way the argument is made. On this method alone, defendants can secure a win and plaintiff, a loss. What are these tactics? They vary, and they depend on whether they are defending themselves against a claim or a lawsuit.
Examples of Defense Tactics to Personal Injury Claims
- Delays. The insurance company or another at-fault party will try to delay the settlement negotiations as long as possible. They do it because they know the longer the plaintiff goes without a settlement, the more he/she will accrue debt, and thus the more desperate he/she will be to settle (and settle for anything, including what would be unjust and unfair compensation).
- Pre-Existing Injuries. If you allow the insurer’s adjusters or lawyers to review your entire medical history, then they may find something to manipulate. They may argue your injuries were pre-existing rather than the result of the accident. And of course, there is a solid counter-argument to this position.
- Intimidation. An insurance company or any other opposing party you are dealing with may have lots of lawyers on their side. You may not have an attorney or you may only have one. The opposing parties will wield their power to intimidate you into settling. Only a strong, competent personal injury lawyer will know the difference and fight against it for you or your loved ones.
Examples of Defense Tactics to Personal Injury Lawsuits
- Motions. There are motions a defense can use to delay the case. Delaying a lawsuit has the same effect as delaying a claim: to make you more desperate so you settle for less rather than more.
- Counter Expert Witnesses. The defendant’s lawyers will use their own expert witnesses to counter the evidence.
- Impeachment of Lay Witnesses. When at trial, one of the most common tactics used is the strategy to impeach a witness. An opposing lawyer will attempt to discredit a lay witness in a number of ways, including digging up dirt on the witness and using it to their advantage.
Retain a Los Angeles Personal Injury Lawyer, Skilled & Ready to Win
As the plaintiff, you have the burden to prove that the defendant is at fault for your personal injuries. The defendant then gets a chance to defend against the accusations. Because the defense goes last, it’s the defense’s arguments that typically get the last word or last impression. What the defense says will still be ringing in the ears of the jury as they go to a room to deliberate.
To be successful, the plaintiff must have provided a thorough, convincing case that persuasively and proactively counters what the defense might argue. A strong personal injury lawyer with the right insight and skill can do this for you. We have the resources and network to make sure you retain the right personal injury attorney in Los Angeles. Your case depends on it. Your compensation depends on it. Perhaps your family’s wellbeing depends on it. Contact us today to learn more and make a right decision.
