Personal injury plaintiffs are likely to encounter certain common defense arguments over the course of litigation. Read on to learn more.
Assumption of Risk
With the assumption of risk defense, the defendant asserts that the plaintiff - even if he or she was actually injured - knew and recognized the injury risks inherent to the activity.
Suppose that a plaintiff makes use of a bike rental service to see some beautiful paths in their city. At some point during the biking trip, however, the plaintiff briefly loses control of the bike and falls to the ground, injuring himself. In this scenario, it is likely that the plaintiff would not be able to sue the bike rental service, as the occasional road accident is an inherent risk of biking and the plaintiff was almost certainly aware of such risks.
The assumption of risk defense is not an absolute bar to a personal injury lawsuit in every scenario, however. Certain circumstances do weaken the defense. For one thing, a defendant must ensure that reasonable safety precautions are taken so as not to enhance the inherent risk of the activity. If the defendant acts in any way to enhance the danger, then the defense is likely to fail and they may be found liable for the injuries.
Signed Waiver of Liability
For many public-facing activities and products, defendants shield themselves from liability using liability waivers. When signed, a personal injury liability waiver indicates a plaintiff's intent to relinquish all injury claims related to the activity/product at-issue. Florida generally enforces liability waivers so long as they are deemed "valid."
A liability waiver may be deemed invalid if the plaintiff can show that the language of the waiver is unclear, ambiguous, or nonspecific.
Not all clear, unambiguous, and specific liability waivers are necessarily enforceable. Liability waivers forcing a plaintiff to relinquish injury claims relating to a defendant's intentional or reckless conduct are generally unenforceable.
Pure Comparative Negligence
In Florida, pure comparative negligence - otherwise known as pure comparative fault - applies to personal injury cases. Defendants typically argue for a more favorable fault split to minimize their liability.
To put it in simpler terms, the theory of pure comparative negligence recognizes that the fault for an accident doesn't always lie with one party. Sometimes multiple defendants may be at fault, or the plaintiff may also be partially at fault for their injuries. Pure comparative negligence assigns fault to each involved party, represented as a percentage of the total fault for the accident.
This defense does not shield a defendant from liability completely, but instead reduces their liability. For example, in a $100,000 value case, if the defendant is found to be 70% at fault, and the plaintiff is found to be 30% at fault, the defendant will only be responsible for $70,000 in damages.
No New Injury
If a plaintiff suffers from a pre-existing condition that relates to their new claimed injury, then the defendant will almost certainly assert a defense on grounds that the plaintiff has not suffered a "new injury."
The success of a personal injury claim requires that the plaintiff show that the defendant's negligent conduct actually caused the plaintiff's injuries. If the plaintiff suffers from a related pre-existing condition, it can be quite difficult to show that the defendant's actions were the true cause.
For example, imagine that a plaintiff has suffered from a lifelong neck condition. A defendant-driver then collides with the plaintiff on a highway, causing further neck injury. The defendant will likely attempt to argue that the claimed neck injury is not a new and separate injury, but in fact an expression of the lifelong condition.
Fortunately for Florida plaintiffs, a personal injury claim can assert that a pre-existing condition was aggravated by an accident. The plaintiff can therefore escape the defendant's assertions of "no new injury" by showing that the injury is in fact different than the pre-existing condition, or showing that the injury was aggravated by the accident.
If the sequence of actions leading up to the plaintiff's injury are a bit convoluted, the defendant may argue that there was an intervening cause and therefore no liability should attach.
Florida personal injury law attaches liability to a defendant's negligent actions when the plaintiff's injuries result from the direct and natural sequence of events following said actions. Some events are simply unpredictable and unnatural, however. If a plaintiff slips-and-falls on the defendant's stairs, but is then struck by lightning, the plaintiff cannot sue the defendant for the lightning-caused injuries. The lightning event would constitute an "intervening cause." An intervening cause completely cuts off the defendant's liability relating to such injuries.
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