When you file a personal injury claim of any kind, you are claiming that some other party—the defendant—caused you harm. The defendant has a right to argue that they are not responsible for the harm you suffered, or otherwise defend themselves in court. There are four types of defenses typically used in these cases:
- Claiming the victim caused the accident
- Claiming the victim failed to mitigate the accident
- Failure to state a claim
- Affirmative defense
A given defendant may try one or all of these defenses at different points in their case. We’ll look at each one below.
Claiming the Victim Caused the Accident
This is the first defense we see in most personal injury cases, from premises liability cases to car accidents. The basic claim in this defense is that you, the victim, actually acted negligently, and you are the one who is responsible for what happened.
This defense is popular for two reasons. One, it can completely get the defendant off the hook for any damages. Two, it turns the accusation around, putting the blame on the victim. This changes the tone of the case and can help turn the jury against your claim.
However, even if the court decides you share some responsibility for the accident, it’s unlikely you will lose your chance at a financial recovery altogether. This is because Georgia follows a policy called “comparative negligence.” Under comparative negligence, even if the victim acted carelessly and put themselves at risk, it doesn’t erase the negligence of the other party. The court compares the negligence of the two parties and decides how much of the responsibility each one bears. You can then win a recovery based on this number.
For example, let’s say you were injured in a car accident caused by a drunk driver. The accident is primarily their fault, but you were making an illegal right turn when it happened. The court might decide that the drunk driver was 80% responsible and you were 20% responsible. If your claim is worth $10,000 you would be awarded $8,000—the part that the drunk driver is culpable for.
Claiming the Victim Failed to Mitigate the Accident
Even as the victim in an accident, you have certain responsibilities over the damages. The law expects that you will take reasonable steps to keep the damages to a minimum even if they’re not your fault. For example, if someone caused a kitchen fire in your home, a reasonable person would call the fire department immediately. If you instead stood outside and watched your home burn, you allowed the damage to get worse. The person who caused the fire can then defend themselves by saying you failed to mitigate the damages.
Common examples of failure to mitigate include:
- You didn’t seek medical attention immediately after an accident, and your injuries got worse because of it
- You are claiming lost wages, but you passed up paying work
- You failed to take some action that would have reduced the severity of physical or property damages
Failure to mitigate does not get the defendant entirely off the hook. It just reduces how much they owe you.
Failure to State a Claim
This is just a formal way of saying that the accident isn’t the defendant’s fault, or that it doesn’t meet the legal definition of negligence. In a personal injury suit you have to prove not just that you were injured, but that another party was negligent, and that their negligence caused the injury. A defendant may seek to prove that there was some other cause for your injury, or that they weren’t negligent at all. If they succeed, you are unlikely to win anything.
This defense simply states that you don’t have legal standing for a lawsuit. The defendant might even agree that they caused your injury—“affirming” it—but they have a legal reason why they do not need to pay you damages. This could be because your claim is past the statute of limitations or for another technical reason.
When it’s successful, the affirmative defense can mean your case is thrown out altogether. But this is rare. If you hire a competent lawyer and you file your claim quickly after your accident, it is unlikely that you’ll face an affirmative defense.
How do I overcome these defenses?
The good thing about personal injury claims is that they’re much easier to prove than other types of cases. You do not have to prove your claim “beyond a reasonable doubt” to win. You only have to show that, based on the evidence, it’s most likely that the defendant caused your injury.
The best way to prove your case and overcome the defense is simply to have an experienced lawyer at your side. There is no substitute for legal expertise.