It’s difficult enough to experience an accident, especially if you suffer an injury. It gets even worse if the other party tries to blame you for it. When this happens, you almost certainly need a personal injury lawyer to help you defend yourself. Florida law offers many possible defenses.
The Elements of a Personal Injury Claim
The plaintiff must prove certain facts (“elements”) to win a personal injury claim. Different types of personal injury claims require the plaintiff to prove different elements, however.
The elements the plaintiff must prove to win a negligence claim differ from those they must prove to win a product liability claim, for example. A product liability lawyer can evaluate the facts of a case and determine which legal theory offers the strongest basis for recovery.
Example: The Elements of a Negligence Claim
The elements of a negligence (carelessness) claim are:
- You owed the victim a duty of care;
- You breached your duty of care,
- The plaintiff suffered damages, typically a physical injury; and
- Your breach of duty was the foreseeable cause of the plaintiff’s damages.
Negligence is the most common ground for a negligence claim. Almost all car accidents, for example, are based on negligence.
The Burden of Proof
The party who bears the burden of proof is the party who must produce evidence to back up their claim. If the other party accuses you of causing the accident, they must prove it. You don’t have to prove that you didn’t cause the accident.
However, under certain circumstances, the burden of proof is reversed, and you shoulder the burden of proof (see below).
The ‘Preponderance of the Evidence’ Standard
The preponderance of the evidence standard is the standard of proof that applies to almost all personal injury claims – except for punitive damages claims. The standard of proof tells you how much evidence the plaintiff needs to prove their claim.
Under the preponderance of the evidence standard, the plaintiff needs to prove each element of their claim by at least a 51% likelihood. This is not a very demanding standard.
Ordinary Defenses
“Negligence in the air, so to speak, will not do.” This quote, attributed to Lord Atkin in the case of Donoghue v. Stevenson (1932), means that, in a personal injury case, negligence is not enough to justify liability unless the negligence actually caused the injury at issue.
If the plaintiff cannot prove causation, their claim must fail. If it would fail in court, it would probably fail at the settlement table as well.
This is also true of any other element of a negligence claim – duty of care, breach of duty, and damages. Failure to prove any of these is fatal to the claim. To win the case, the plaintiff shoulders the burden of proving all of the elements of liability.
An ordinary defense means that you assert the plaintiff has failed to meet their burden of proof.
Affirmative Defenses
An affirmative defense is a special kind of defense that you, the accused, initiate yourself. When you assert an affirmative defense, you are essentially saying that you are not liable even if everything the plaintiff says is true.
If you assert an affirmative defense, the burden is on you to prove it. Below are some examples of affirmative defenses:
- Expiration of Florida’s two-year statute of limitations deadline to file a personal injury lawsuit (this is the time limit for most, but not all, cases).
- Assumption of the risk: The plaintiff was hurt participating in an inherently dangerous activity, and they consented to participate after knowing of the risks.
- Comparative negligence: The plaintiff is partly to blame for the accident. This is a partial defense, but if the plaintiff was mostly to blame (51% or more), it is a complete defense.
- Failure to mitigate damages: The plaintiff didn’t take reasonable steps to mitigate their damages. They failed to follow doctor’s orders, for example. This is a partial defense.
Florida law offers several other commonly used affirmative defenses; speak with your St. Petersburg personal injury attorney to find out if any of them are relevant to your case.
You Might Even Have a Counterclaim
Just as the plaintiff can claim against you, you can counterclaim against the plaintiff if you have plausible evidence. You might just turn the tables on the plaintiff and win, either in court or at the settlement table.
Under the contingency fee system, your legal fees will equal a certain percentage of whatever amount your lawyer is able to win for you.
Contact the Clearwater Personal Injury Law Firm of Roman Austin Car Accident and Personal Injury Lawyers for Help Today
For more information, please contact the legal team of Roman Austin Car Accident and Personal Injury Lawyers for a free initial consultation with a personal injury lawyer in Clearwater. We have convenient locations in Florida: St. Petersburg, Safety Harbor, Clearwater, New Port Richey, and Tampa.
We serve throughout Pinellas County, Hillsborough County, Pasco County, and its surrounding areas:
Roman Austin Car Accident and Personal Injury Lawyers - Clearwater Office
1811 N. Belcher Road, Suite I-1
Clearwater, FL 33765
(727) 787-2500
Roman Austin Car Accident and Personal Injury Lawyers - Congress Ave Office
2360 Congress Avenue
Clearwater, FL 33763
(727) 591-5610
Roman Austin Car Accident and Personal Injury Lawyers - Tampa Office
6601 Memorial Hwy Suite 202
Tampa, FL 33615
(813) 686-7588
Roman Austin Car Accident and Personal Injury Lawyers - New Port Richey Office
2515 Seven Springs Blvd.
New Port Richey, FL, 34655
(727) 815-8442
Roman Austin Car Accident and Personal Injury Lawyers - St. Petersburg Law Office
840 Beach Dr NE Suite 202
St. Petersburg, FL 33701
(727) 787-2500
Roman Austin Car Accident and Personal Injury Lawyers - Safety Harbor Law Office
202 9th Ave S Suite A-2
Safety Harbor, FL 34695
(727) 787-2500
