In personal injury, there are numerous defenses available to the defendant, with varying impact – some are capable of having the lawsuit dismissed in its entirety, while others will simply reduce the available compensation that the plaintiff is entitled to. Whether you’re a personal injury plaintiff concerned about the strength of your claim, or a defendant concerned about your potential liability, it’s good practice to understand the defenses that can be asserted both for and against you.
For an initial overview of the basics of California Personal Injury, please read our article here.
Pure Comparative Negligence – Plaintiff’s Fault
Ever since the landmark Supreme Court of California case of Li v. Yellow Cab Co. in 1975, the state of California has applied pure comparative negligence to personal injury cases. Under pure comparative negligence, the fault of each involved party is determined as a percentage of the total fault. That percentage is then applied to the damages total. Each party is liable for the modified amounts. Pure comparative negligence operates as a partial-defense in personal injury actions – while it doesn’t shield the defendant from liability for the injuries caused, it may reduce their total liability.
Confusing? See the example below for further clarification.
Imagine that a plaintiff sues a defendant in an automobile accident case. Perhaps the defendant was not looking when he turned, causing the accident. The damages are $100,000. Ultimately, the court finds that defendant is liable for the injuries, but defendant asserts that plaintiff is also at-fault. Defendant might reasonably assert that plaintiff was speeding, and that this speeding contributed significantly to the accident. It is not unlikely that the court will assign a fault percentage to plaintiff and defendant. Rather than assign the defendant 100 percent of the fault, the court finds that plaintiff is 30 percent at fault, and defendant is 70 percent at fault. Thus, given the damages total, defendant will be liable to plaintiff for $70,000.
Because California applies a pure comparative negligence scheme, defendants that have failed at raising alternative, more complete defenses can still raise a last-ditch defense by arguing that the plaintiff was at least partially at fault for their own injuries.
Assumption of Risk
The assumption of risk defense bars a plaintiff’s recovery for injuries in a negligence-based personal injury action if said plaintiff: 1) had actual knowledge of the risk involved in the activity he or she engaged in; and 2) voluntarily accepted the risk. To succeed in an assumption of risk defense, the defendant also has to prove that the activity was inherently dangerous – that plaintiff’s injuries were not specifically caused by defendant’s negligence, but were a natural consequence of engaging in the dangerous activity.
Importantly, the consequences must be expected, not unexpected. The injury result can be a rare, unwanted result, but it must flow as a natural consequence of the activity. For example, if a person is stabbed by another player during a game of football, the defendant-stabber cannot assert an assumption of risk defense by claiming that plaintiff should have expected the possibility of injury during a game of football. The possibility of a stabbing injury is certainly unexpected. If the defendant had instead accidentally tackled plaintiff in such a way that plaintiff was significantly injured, defendant could then legitimately assert an assumption of risk defense, as a tackle-related injury is a reasonable, expected consequence of playing a game of football.
There are two kinds of assumption of risk – express and implied.
In cases involving express assumption of risk, the plaintiff and defendant enter into a written or verbal agreement, usually a waiver, in which the plaintiff acknowledges the risks and inherent dangers of the activity with which he is about to engage. If plaintiff injures himself while engaged in the activity-at-issue, then he cannot thereafter pursue legal action against the defendant.
In cases involving implied assumption of risk, the plaintiff and defendant do not enter into a written or explicit verbal agreement. Instead, the plaintiff behaves in a manner such that a reasonable person would determine that the plaintiff was aware of and accepted the inherent danger of the activity-at-issue. For example, if a plaintiff decides to free-climb a cliff face (climbing without safety gear), then it can be reasonably inferred that the plaintiff, even without having entered into a written or verbal contract with defendant (a climbing expedition company, perhaps), is aware of and accepts the inherent danger in climbing without safety gear. If the plaintiff injures himself while free climbing, he cannot thereafter sue defendant for failing to prevent those injuries.
Failure to State a Claim
If the defendant can prove that plaintiff has failed to establish one of the fundamental elements of their claim (here, personal injury), then the plaintiff’s claim will be dismissed. This is a complete defense. It doesn’t merely reduce the defendant’s liability: it shield’s the defendant from liability altogether. Let’s consider a negligence-based personal injury claim for use as an example.
In a negligence action, the plaintiff must prove several elements of his claim: 1) that defendant owed him a duty of care; 2) that defendant breached this duty; and 3) that defendant’s breach caused plaintiff’s injury.
The defendant may be able to get the court to dismiss plaintiff’s claim if the defendant can show that plaintiff failed on one or more of these elements. The defendant may be able to show that no duty of care was owed, or that defendant did not breach the duty of care, or even that defendant’s breach of the duty of care was not the substantial cause of plaintiff’s injury. Of course, this gives the defendant a lot of options for asserting a complete defense. As a plaintiff, having your claim dismissed (with prejudice) means that you are out of luck. You cannot bring the same claim against the defendant.
Failure to Mitigate Damages
A defendant may, if the facts allow it, assert a partial defense (will not shield the defendant from liability, but will reduce their overall liability) that the plaintiff has failed to mitigate their damages. Plaintiffs have a duty to mitigate their damages, or perhaps more simply stated, to ensure that they take reasonable actions so as to not worsen their injuries, and in fact, to take reasonable actions so as to minimize their injuries. For example, a plaintiff who has been seriously injured in an accident is reasonably expected to go to the hospital for medical care following the accident. If the plaintiff fails to go to the hospital after the accident, and if plaintiff’s condition materially worsens as a result, then the defendant may be able to argue that plaintiff failed to mitigate their damages.
If a defendant can show that plaintiff failed to properly mitigate their damages, then the court may reduce the damages total accordingly, as the defendant cannot be held responsible for the plaintiff’s own negligent actions so far down the causal chain of events.
The Plaintiff Already Had Pre-Existing Injuries
This defense is one that is quite commonly asserted against personal injury plaintiffs. For example, imagine a car accident takes place in which the defendant rear-ends the plaintiff’s car at a traffic light, causing neck injuries to the plaintiff. The plaintiff thereafter sues defendant for damages. The defendant may be able to minimize his or her damages (this is not a complete defense!) by arguing that the neck injury was pre-existing. In most cases such as this, the defendant’s attorneys will seek the plaintiff’s medical records to determine if plaintiff has ever previously suffered from neck injuries of the sort that they are now claiming in the lawsuit.
So, what if the plaintiff in the above example did have a pre-existing neck injury? Would that significantly hurt the plaintiff’s lawsuit? The answer is, as with many legal issues: it depends.
If a plaintiff has pre-existing injuries, the defendant is still liable for enhancing or worsening the injury. In the legal field, a plaintiff who has a pre-existing injury that was worsened by an accident is known as an eggshell plaintiff. Importantly, the plaintiff will have to prove through the medical evidence that their injury was worsened by the accident, and would not have worsened to such a degree had the accident been avoided. As eggshell plaintiff claims are complicated and involve more nuanced legal strategy, you’ll want to retain an experienced personal injury attorney for such claims to ensure that you’re claim is being litigated to the fullest extent.