• Defenses Against Personal Injury Claims

    Defenses Against Personal Injury Claims

    Whether a person is a plaintiff or defendant, it is important to know what circumstances can foreclose on a successful personal injury lawsuit. If the personal injury claim has arisen from an intentional tort like battery a defendant may limit their liability if they acted in self defense or if the plaintiff consented. If the personal injury claim has arisen from negligence a defendant may limit their liability if the plaintiff contributed to the harm.

    Self-defense is a person’s privilege to defend their bodily integrity and dignity. This privilege allows a person to use reasonable force to defend against acts one reasonably believes will cause imminent harmful or offensive bodily contact. This privilege generally exists even if harm can be avoided by retreating or by giving up a right or privilege. This includes complying with commands which with you have no duty to comply (i.e. commands that the assailant has no privilege to enforce by the means threatened). However, a person who can avoid using deadly force by retreat is generally under a duty to do so, though this can vary from state to state.

    What constitutes reasonable force in self-defense is dependant on the circumstances. A person is generally under a duty to cause a minimum amount of harm. The minimum amount of force is based on immediacy of need and must usually be in proportion to the to the circumstances. The immediacy of the need is grounded in the current existence of the threat. Once the threat has abated then a person is under an obligation to cease their harmful conduct. The measures a person takes in self-defense must also be proportionate to the threat. A person may not defend themselves from a shoving with a stabbing. If a person escalates the level of violence (such as the above shoving to stabbing example) then they typically become the liable aggressor in the melee. Some jurisdictions treat an imminent apprehension of harm as sufficient justification to preemptively strike. Deadly force in self-defense is generally limited to instances where the same is threatened and there is no safe avenue of retreat.

    In some instances a defendant can claim that the plaintiff consented to an alleged battery. Consent is a willingness for conduct to occur. Consent can be manifested as either explicit/in-fact consent or as apparent/implied consent. Explicit consent is fairly straight forward and is an outward and obvious grant of authority for a person to act in a particular way. Apparent consent is less straight forward and can be implied through any conduct reasonably understood to grant consent. Implied consent could be shown through actions or words, a course of conduct between the parties, social conventions in a particular setting, or through the understanding of a specific personal relationship.

    There are circumstances where apparent consent is actually no consent at all. Parents and guardians can consent on the behalf of their children or wards, but only if it is in the best interest of the child or ward. Some people are incapable of giving consent, like minor children, the mentally incapacitated or insane, and the intoxicated. Consent obtained through mistake or misrepresentation, deceit, fraud, duress or coercion is also invalid. Though it should be noted that some threats or coercion do not invalidate consent. Economic threats to produce purely economic gains do not invalidate consent (ex. “I won’t buy your product unless…”). Threats from people of equal power or footing are also unlikely to invalidate consent because threats without the abuse of power are typically non-coercive (ex. “If you were really my friend…”).

    A defendant accused of some form of negligence can defend themselves by asserting comparative fault (also known as comparative negligence). This defense allows a defendant to mitigate their liability by claiming that at least some of the plaintiff’s harm was a result of the plaintiff’s own actions. Proving comparative negligence essentially requires the defendant to assert their own negligence claim against the plaintiff: that the plaintiff was engaging in unreasonable or risky behavior which was an in-fact and direct cause contributing to their own harm. A plaintiff found to be comparatively negligent will have their damages reduced in proportion to their fault. For example, if X suffers $100,000 in damages, but is found in comparative negligence to be 40% at fault then X will only recover $60,000. In some jurisdictions if the plaintiff is found more than 50% liable then they may not recover at all.

    It is also worth noting that in many jurisdictions if a defendant has acted wantonly or recklessly the comparative negligence defense may be foreclosed to them. Wonton and reckless behavior is more than mere negligence, it is the willful disregard of a serious risk of harm to others. An example of this may be two motorists driving at unreasonable speed on a public highway: driver X is moving at a negligent 75 mph, but driver Y is moving at a reckless 120 mph. Even though X was acting negligently, Y’s conduct is so outrageous that X, as a matter of law, will bear no liability for an accident between them.
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