In a personal injury lawsuit, the plaintiff (the injured victim) files the claim, while the defendant opposes it. The term “defendant” typically refers to someone who is being sued in a lawsuit rather than someone who is the subject of an insurance claim. Nevertheless, the term “defendant” is sometimes used loosely enough to include the subject of an insurance claim.
Defendants in Negligence Claims
Most personal injury lawsuits are based on negligence claims. To win a negligence claim, you must prove:
- The defendant owed you a duty of care;
- The defendant breached their duty of care;
- You suffered harm (damages);
- The defendant’s negligence was the actual cause of your harm; and
- The defendant’s negligence must have been foreseeable under the circumstances (proximate cause).
You must prove your claim based on the “preponderance of the evidence” standard. That means you must prove that the defendant is at least 51% likely to be liable. This is a lot easier standard to meet than the “beyond a reasonable doubt” standard that is used in criminal prosecutions.
Defendants in Product Liability Claims
To win a strict product liability claim for an injury caused by a defective product, you must prove:
- The product contained a design defect, a manufacturing defect, or inadequate product warnings;
- You were using the product as intended;
- You suffered harm (damages);
- The product defect was the proximate cause of your injury; and
- The product was defective when it left the defendant’s hands.
You can sue any party in the product’s chain of distribution, such as the manufacturer, retailer, or distributor.
Defendants in Vicarious Liability Claims
A vicarious liability claim arises when you sue one party for another party’s misconduct. Typically, you sue an employer for an employee’s misconduct. You must prove that the employee was acting within the scope of their employee at the time they committed the misconduct. Simply being on duty is not necessarily enough.
Defendants in Intentional Tort Cases
An intentional tort arises when one party deliberately harms another. On common example of an intentional tort is an assault. If one person assaults another, the assailant would be the defendant.
Defenses That Defendants Might Raise Against a Personal Injury Claim
There are two kinds of defenses against a personal injury claim: the general defense, and affirmative defenses.
The General Defense
The general defense simply denies that the plaintiff has met their burden of proof and has failed to support the required legal elements of their claim adequately.
For example, their witnesses weren’t credible, or they didn’t offer any evidence of causation. This is typically a question for the jury to decide, although sometimes the judge will intervene and make the decision.
An affirmative defense states that the defendant is not liable for some special reason. It is not part of a lawsuit unless the defendant initiates it. Below are some common affirmative defenses:
- The plaintiff’s own misconduct rendered them partly responsible for their injuries.
- The plaintiff voluntarily accepted the risk in advance. This is easier to prove if the defendant signed a waiver of liability before the injury.
- The plaintiff consented to the actions that led to their injury.
- The plaintiff missed the statute of limitations deadline to file a lawsuit.
- The plaintiff did not take reasonable steps to minimize the seriousness of their injuries (for example, they failed to follow medical advice).
- The injury was caused by an unavoidable natural event, such as a hurricane or a volcano.
- The defendant acted in self-defense or in defense of others.
- Government immunity: Government entities and officials may claim immunity from lawsuits under certain circumstances.
These are not the only possible affirmative defenses. The defendant bears the burden of proving an affirmative defense.
Hire an Experienced Personal Injury Lawyer
Winning a personal injury lawsuit is often quite difficult, even if you sue in small claims court. If your claim is sizable, your best bet is to seek the assistance of an experienced personal injury lawyer. A good lawyer can not only improve your odds of victory, but also increase the amount of money that you bring home.
Most personal injury lawyers offer free initial consultations. They will also represent you free of charge unless they win compensation for your case. If they do win, your legal fees equal a percentage of the amount they win for you. This puts you and your lawyer on the same side–the more you win, the more they earn.