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.

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 lawyer 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.

Roman Austin Personal Injury Lawyers – Tampa Office
6601 Memorial Hwy Suite 202
Tampa, FL 33615
(813) 686-7588

Roman Austin Personal Injury Lawyers – Clearwater Office
1811 N. Belcher Road, Suite I-1
Clearwater, FL 33765
(727) 787-2500

Roman Austin Personal Injury Lawyers – Congress Ave Office
2360 Congress Avenue
Clearwater, FL 33763
(727) 591-5610

Roman Austin Personal Injury Lawyers – New Port Richey Office
2515 Seven Springs Blvd.
New Port Richey, FL, 34655
(727) 815-8442