In a personal injury lawsuit, the victim of a personal injury accuses the defendant of liability to financially compensate for their injuries. Usually, but not always, the victim asserts that the defendant’s careless or wrongful behavior was the cause of the victim’s injuries. 

In some cases, the victim asserts liability against a defendant who was not personally at fault. For example, the at-fault party’s employer often bears liability for the on-duty wrongdoing of their employee.

Defendants and Insurance Company Lawyers

Typically, the defendant will rely on a liability insurance policy to pay any compensation should they lose the case. The insurance company will supply the defendant with a lawyer to help the defendant defeat the victim’s claim. 

Liability: Elements of a Negligence Claim

A negligence claim asserts that the victim’s injuries arose from the at-fault party’s careless behavior. Not all personal injury claims are negligence claims, of course. You can face a lawsuit for deliberately assaulting someone, for example. 

Nevertheless, most personal injury claims, including almost all vehicle accident claims, are negligence-based. To win a negligence-based claim, you must prove the following:

  • The defendant owed the victim a duty of care;
  • The defendant breached their duty of care;
  • The victim suffered an injury; and
  • The defendant’s breach of their duty of care was the proximate cause of the victim’s injury.

The victim needs to prove all four of these elements to win their claim. The standard of proof, called “a preponderance of the evidence,” requires the victim to prove that there is a greater than 50% chance that the victim’s version of events is true.


You can rest assured that the defendant will fight back against the victim’s assertion of liability. There are three main ways of doing this: negotiations, direct denial of liability, and affirmative defenses.


You can negotiate a claim any time before a jury announces a verdict, whether or not you have already filed a lawsuit. A defendant might flatly refuse to negotiate, but they will typically try to negotiate a lower value for your claim. They might also suggest other forms of alternative dispute resolution, such as mediation or arbitration.

Direct Denial of Liability

Another option for the defendant is to directly deny one or more elements of your claim. If they can prevent you from proving at least one element of your claim, they can win even if you prove all of the other elements.

Affirmative Defenses

Affirmative defenses are different from other types of defenses in two main ways: (i) the defendant must initiate the defense themself, and (ii) the defendant has the burden of proving their defense. Normally, the plaintiff bears the burden of proof. 

Expiration of the statute of limitations deadline

Florida recently reduced the statute of limitations deadline for most personal injury claims to only two years (from four years previously). The statute of limitations sets the deadline for you to file a formal lawsuit regarding your personal injury lawsuit. If you don’t do so by the deadline, the defendant will use it as an affirmative defense and ask the judge to dismiss your case. 

Assumption of risk

The assumption of risk defense applies when you voluntarily engage in a dangerous activity whose risks you are aware of. If you get hurt that way, a court might not hold the defendant responsible for your injuries. This defense is especially likely to be successful if you signed a waiver of liability before you engaged in the activity.

Comparative fault

You will lose at least some of your compensation if the accident was partly your fault. If the accident was mostly your fault, you will lose all of your compensation under Florida law. 

Failure To Mitigate Damages

A court will not award you compensation for injuries you could have avoided by exercising reasonable care. If you get hurt but fail to follow your doctor’s instructions, for example, the court might refuse to award you compensation for any injuries caused by your failure to follow medical advice.

Hire a Clearwater Personal Injury Lawyer To Help Assert Your Claim

Hiring a reputable Clearwater, FL, personal injury lawyer is likely to greatly improve your odds of obtaining a generous verdict or settlement. Since almost all personal injury lawyers work on a contingency fee arrangement, you won’t have to pay a dime until and unless you win compensation. Even then, your legal fees will equal a pre-agreed percentage of your total monetary award or settlement. Contact us at (727) 787-2500 and one of our experiences lawyers at Roman Austin Personal Injury Lawyers will help you today with your initial consultation.