In personal injury cases, the at-fault party’s insurers and legal teams will typically employ a range of legal defenses. These defenses are aimed at reducing or eliminating their own liabilities. After all, they don’t want to pay you more than they have to. To do this, they must defend against your claims and build a case showing they’re not to blame.
If you’re involved in a personal injury lawsuit or claim, your attorney will work to fight back against baseless claims the insurance company might use to reduce their liabilities, and they’ll poke holes in any defenses they use.
Here are the top most commonly used defenses that we see in personal injury cases.
In Florida, defense strategies in personal injury cases frequently try to say that you share some portion of the blame for your injuries. This is because Florida is a modified comparative negligence state. This means that the compensation you receive is reduced by an amount equivalent to your percentage of fault in contributing to the accident.
What does this look like? Suppose you were speeding through an intersection. However, as you passed the intersection, another driver ran the red light and t-boned your vehicle. The court might find that you were 20% responsible for the crash and your injuries because you were speeding. Because of this, they might reduce any award you receive by 20%.
Florida’s modified comparative negligence rule, as detailed in Florida Statutes section 768.81, says that if an injured accident victim is 50 percent or more responsible for their injury, they are barred from receiving any compensation.
Because of modified comparative negligence, determining fault becomes critical in winning your case. You need an injury lawyer who can gather comprehensive evidence and use skilled legal argumentation to minimize the fault assigned to you after an accident.
Assumption of Risk
In Florida, when someone is accused of causing an injury during a risky activity, like trampolining or skydiving, their legal team may claim that the injured person knew what they were getting into. The defense has to show two things to make this argument stick: First, that you understood the dangers, and second, that you willingly decided to proceed with the activity anyway.
In practical terms, if you participate in a contact sport like football or a high-risk activity like skydiving, you are presumed to have consented to the risk of the types of injuries common in that activity. If an injury occurs due to the inherent risks of the activity, the assumption of risk defense may significantly limit or even eliminate your ability to recover damages.
In Florida, for the assumption of risk to be applicable, the activity’s risks must not have been enhanced by the defendant’s behavior beyond the inherent risks. If, for instance, a skydiving company fails to maintain equipment in a reasonably safe condition and that negligence leads to your injury, the company may not hide behind the assumption of risk defense because they have increased the inherent risk.
To effectively argue the assumption of risk, the at-fault party’s legal team will typically present evidence such as signed waivers, testimony about your experience and understanding of the activity, and expert opinions on the risks involved. To win your case, your Florida personal injury lawyer must prove that the injury was not a foreseeable risk of the activity or that the defendant’s conduct exacerbated the inherent danger.
When facing a personal injury lawsuit in Florida, defendants may counter that your injuries aren’t new but instead are related to previous medical issues. This argument, known as the pre-existing condition defense, posits that the damages were present before the incident and, thus should not be attributed to the defendant’s actions.
To make this defense more convincing, defendants rely heavily on detailed medical records and the insights of medical experts. They will comb through your medical history to find any evidence of past injuries or conditions that match the current complaints. For instance, if you suffered a back injury in a car accident but had a history of back injuries in the past, the defendant will try to claim that the car accident didn’t cause your injury because it was pre-existing.
Expert testimony becomes particularly valuable here. Your personal injury attorney will need medical professionals to analyze your health records, provide an opinion on the likely cause of the injuries, and discuss whether the type and extent of the injuries are consistent with the incident or a pre-existing condition.
However, it’s important to note that the presence of a pre-existing condition doesn’t automatically mean you won’t win your injury claim. If the accident aggravated the pre-existing condition, you can still sue the defendant for making it worse.
Statute of Limitations
Under Florida law, the statute of limitations is a critical deadline for filing a personal injury lawsuit. In the Sunshine State, individuals who have suffered harm due to someone else’s actions typically have just two years from the accident to file a lawsuit.
If you do not file their lawsuit within this two-year window, you might lose your right to sue altogether. For defendants, the statute of limitations is a powerful shield. If they can demonstrate to the court that the deadline has passed, they can file a motion to dismiss the case because you waited too long to sue.
There are, however, particular circumstances where the statute of limitations may be extended or tolled. One such instance is when the injury was not immediately discoverable despite due diligence. In these cases, the statute of “limitations clock” may start ticking from when the injury was discovered or should have been discovered rather than the date of the incident itself. This is known as the “discovery rule.”
In cases involving minors or incapacitated individuals, the statute of limitations may also be tolled until the disability is lifted, such as when the minor reaches the age of majority.
In Florida, the principle of sovereign immunity offers government entities considerable protection against personal injury lawsuits. However, Florida’s stance on sovereign immunity is not absolute. Legislative provisions, particularly under Florida Statutes section 768.28, have waived sovereign immunity to a certain extent, allowing government entities to be held liable in situations where a private individual or entity would normally be responsible for damages.
Despite this waiver, there are specific limitations and procedural nuances that must be meticulously followed when one seeks to bring a lawsuit against a government entity in Florida.
Before you can file a lawsuit, you must provide the government entity with a notice of claim, which allows them to investigate the claims.
You often have very little time to file claims against government entities, so you must act quickly. Talk to an experienced personal injury lawyer at our law firm to ensure you don’t miss any critical deadlines for pursuing compensation.
Release of Liability
In Florida, as in many states, a release of liability or waiver is a common legal tool that can greatly influence the outcome of personal injury claims. When you sign these documents, you typically agree not to hold the defendant liable for certain types of harm or losses that could occur as a result of participating in an activity or using a service.
These waivers are particularly prevalent in activities that carry inherent risks, such as cruise ships, extreme sports, recreational activities, or even community events. The document typically outlines the potential dangers and indicates that you are choosing to proceed at your own risk.
Under Florida law, courts generally uphold releases of liability, provided they are clearly written, unambiguous, and specifically indicate the rights being waived. The courts look for clear language that a reasonable person would understand and agree to. If the waiver meets these standards, it can be a formidable barrier to your case.
However, there are limitations to the enforceability of liability waivers. They will not protect a defendant from consequences for gross negligence or intentional harm. Moreover, waivers may be scrutinized and potentially invalidated if they are deemed to be against public policy, not clear and specific enough, or if they were signed under duress or with inadequate understanding.
You should not assume you won’t win your case simply because you signed a waiver. Call our law firm immediately to explore your legal options.
Failure to Mitigate Damages
In Florida’s personal injury cases, the concept of ‘failure to mitigate damages’ hinges on the expectation that individuals will act reasonably and try to lessen the severity of their harm after an incident. If you neglect to take appropriate actions to reduce the consequences of your injuries, this can significantly influence the damages awarded.
For example, if you refused a necessary surgery that would likely decrease your recovery time, you may be unable to claim lost wages for the extended period you remain out of work.
This argument doesn’t aim to dismiss the defendant’s responsibility for the initial injury completely, but it does focus on your own actions post-injury. The defendant’s goal is to provide evidence that your damages were worsened by your own lack of action or by taking steps that a reasonable person would not have taken under similar circumstances.
For the defense to successfully leverage this argument, they must show:
- You had the opportunity and ability to take reasonable steps to alleviate the impact of your injuries.
- You neglected to take these steps.
- As a result of this inaction, additional harm or costs were incurred.
In Florida courts, this defense is not an automatic reduction of liability but a factor that is carefully considered. It underscores the legal expectation that while defendants are responsible for the harm caused by their actions, injured accident victims also have a responsibility to avoid contributing to the severity of their damages through inaction or imprudent decisions.
Contact Our Florida Personal Injury Lawyers Today
If you or someone you love suffered harm in an injury accident in Florida, we are here to help. You do not have to go up against large insurance companies or defense legal teams alone. Let us fight this battle for you so you can focus on your recovery and on rebuilding your life after a serious injury accident.
Let Prosper Shaked help you through this difficult time. Call us for a FREE consultation and review of your case at 305-694-2676 or fill out our confidential contact form. We fight for the rights of accident victims. Call us today!