What are the Personal Injury Defenses?

Rarely does a personal injury matter go to trial. If you are injured, chances are that the case will be resolved via negotiation or settlement and the balance proceeds for trial. Nonetheless, attempts are still made by lawyers to resolve the dispute via alternative dispute resolution techniques. Upon exhaustion of all the other remedies, the matter has to be tried by a court and you could then need personal injury defenses.

Am I entitled to damages if I get injured?

Now, establishing that the negligent conduct of the defendant ensued in personal injury does not per se entitle the plaintiff of the damages. While it does entitle compensation to the plaintiff, the amount may be diminished, partially or completely as the case may be, if the defendant proves that it was not solely his activities that caused the injury but in fact the plaintiff was also partly responsible. Striking a balance between the rights of the plaintiff and defendant has ensured fair and equitable justice to the parties concerned in such a lawsuit.

What personal injury defenses can be used in a lawsuit?

Broadly speaking, there are five types of personal injury defenses a defendant in a lawsuit can bank upon, depending upon the facts and circumstances of the case:

  1. Contributory and comparative negligence
  2. Volenti non fit injuria or assumption of risk
  3. Pre-existing injuries
  4. Release or waiver of liability
  5. Statutory limitation

As soon as the plaintiff establishes his case, the onus to prove any of the afore-stated defenses shifts on the defendant.

What is Contributory Negligence in a personal injury lawsuit?

In case of personal injury lawsuits where a defendant has been slammed with accusations based on negligence, contributory negligence has been established as a weapon to mitigate the liability.

According to the rule of contributory negligence, the plaintiff is absolutely barred from claiming any compensation in a personal injury lawsuit if he himself fails to exercise reasonable care and his conduct has been found to be negligent which contributes to the causation of the injury. The application of this doctrine is absolute and heedless to the culpability of defendant’s negligence. That is to say, irrespective of the defendant being found guilty of negligent conduct ensuing in personal injury, he needs to establish only a minor negligence, as less as 1%, at the plaintiff’s end to preclude self from damages.

These personal Injury defenses were gradually reckoned to be perpetrating injustice against the plaintiffs. Consequently, majority of the States substituted this defense with the doctrine of comparative negligence. However, the states of Alabama, Maryland, North Carolina, Virginia and Washington, DC continue to apply this doctrine as a defense in the undiluted form.

The Supreme Court of Alabama, in John Cowley & Bros., Inc. v. Brown, held that a plaintiff shall be disentitled to receive any compensation if he is also found negligent in a personal injury lawsuit arising out of negligence. However, such negligence must not be mere ignorance but a conscious act putting him in the dangerous situation.

What is Comparative Negligence in a personal injury lawsuit?

The conventional approach of contributory negligence was found to be extremely harsh and unjust from the plaintiff’s standpoint primarily because it discharged the defendant from all the pecuniary liabilities. Hence, if you are injured from a personal injury, courts will use a more lenient approach that will help to reduce the defendant’s liability instead of defeating your claim as the plaintiff altogether.

While the principle of contributory negligence determines whether the plaintiff was also negligent, the principle of comparative negligence has been devised to ascertain the damages to be awarded to the plaintiff keeping in mind his negligent conduct as well. According to the doctrine of comparative negligence, the plaintiff shall receive damages from the defendant only to the extent the personal injury is the outcome of latter’s act and not be compensated towards the injury arising out of his own negligence.

As far as your injuries is concerned, the damages are apportioned in proportion to the fault of the defendant, making it only a partial defense unlike contributory negligence. Therefore, the defendant shall establish the extent of plaintiff’s negligence to reduce his liability to the extent of his fault and no more.

What legal rules are applied in personal injury cases?

Over the course of years, the principle of comparative negligence has evolved and been further classified as:

Pure Comparative Fault Rule

As per this principle, the liability of the defendant is reduced to the extent of his negligence. Thus, even if the plaintiff’s fault is evaluated to be 99%, he shall still be entitled to receive compensation after diminishing it by the extent of his fault. Excluding the amount of compensation to the extent he is not responsible safeguards the interest of the defendant and parallelly, delivers justice to the plaintiff. This principle has been adopted and is applied by 12 states in the U.S.

In a leading motor vehicle accident case where the plaintiff was also found to be negligent, the Supreme Court of California observed that the principle of pure comparative negligence shall supersede the principle of contributory negligence. Accordingly, the plaintiff, instead of being barred from receiving compensation, shall receive reduced compensation proportionate that to the defendant’s negligence.

Slight-Gross Negligence Comparative Fault Rule

South Dakota practices a modified form of pure comparative fault rule known as Slight-Gross Negligence Comparative Fault Rule. As the name suggests, the fault of plaintiff is compared with that of defendant for the determination of damages provided the fault of former is slight and that of latter is gross. Else, the plaintiff shall be barred from receiving any compensation. No strict definition has been rendered to ‘slight’ and ‘gross’ opening doors for ambiguity.

Modified Comparative Fault Rule

Embracing the characteristics of both the afore-stated principles, this rule entitles the plaintiff to receive compensation after diminishing it in proportion to the extent of his fault, provided his fault does not exceed a prescribed percentage. This cap limit varies from state to state.

Some states follow 50% bar rule which means your injury will be denied any compensation if he is found at fault equal to or more than 50%. Others follow 51% bar rule and so, in order to be eligible to receive compensation from the defendant, the plaintiff’s fault shall be less than 51%. Accordingly, the defendant shall establish the plaintiff’s fault equal to or more than 50% or 51%, as may be specified by the state, to be discharged from the liability.

The respective States’ Codes, such as Arkansas Code § 16-64-122 or Idaho Code § 6-801, lucidly states that a defendant shall not be liable to pay damages to the plaintiff if the latter is found at 50% or more at fault. Adhering by the 51% rule prescribed in the Delaware Code § 8132, the Superior Court of the State of Delaware found plaintiff to be at 79% fault and hence, did not award any damages.

Though the primary intention of this rule was to strike a balance and deliver justice to the parties to the personal injury lawsuit, it has been criticized for the complications encompassed in suits comprising multiple at-fault parties.

What is volenti non fit injuria or Assumption of Risk?

Volenti non fit injuria is a latin phrase for ‘to a willing person, no injury is done’. An affirmative defense under the Federal Rules of Civil Procedure, the liability of a defendant shall be abrogated if he proves that the plaintiff was well-aware of the risk and had voluntarily exposed himself to the same. Therefore, a defendant can avoid the liability if he establishes that firstly, the plaintiff had distinct knowledge of the associated risk and secondly, despite being aware of the risk, he voluntarily accepted, explicitly or implicitly, to participate in the same. Such obviation includes liabilities arising due to risks inherent in an activity as well as those from defendant’s negligence.

Prof. Bohlen in his Contributory negligence remarked that while contributory negligence presumes existence of defendant’s duty towards plaintiff and is a defense for its subsequent breach as a consequence of negligence, volenti non fit injuria as a defense negates the existence of defendant’s duty per se. The assumption of risk may be primary or secondary.

What is primary assumption of risk?

Primary assumption of risk is when the plaintiff has complete knowledge of the risks involved and willingly participates in an event or activity. Such an assumption of risk may be explicit or implicit. As a rule of defense, the prior knowledge of the associated risks releases the defendant from every kind of legal duty towards the plaintiff, thereby eliminating the scope of negligence in toto at his end. This defense generally comes into play in personal injuries arising due to premises liability or in a sports event.

The landmark ruling by the Court of Appeals of the State of California, in Knight v. Jewett, noted that the primary assumption of risk completely bars the plaintiff from seeking any compensation from the defendant in a personal injury lawsuit. However, not being an affirmative defense, the burden lies on the plaintiff to show that the defendant owed a duty of reasonable care towards him and in fact he was not aware of the risk. The failure to prove the same shall by default release the defendant from the liability.

What is secondary assumption of risk?

This defense comes into play when the defendant owes a duty of reasonable care to the plaintiff. The defendant argues that the plaintiff voluntarily chose to participate in an event or activity despite being aware of the risks that may arise due to the negligence by the defendant. As an affirmative defense, secondary assumption of risk should be posited by the defendant upon establishment of his negligence by the plaintiff. Since both the parties have a role to play in the causation of personal injury, the cases are often merged into comparative negligence and the plaintiff receives compensation only to the degree of negligence of the defendant.

While secondary assumption of risk and contributory negligence are separate defenses, some courts have construed the two to be more or less the same on the ground of the unreasonable conduct of the plaintiff engendering personal injury. For example, the Minnesota Supreme Court has appreciated that the two defenses overlap each other in Parness v. Economics Laboratory, Inc. and the former may be phased into the latter to the limited extent of plaintiff’s unreasonable conduct in Knutson v. Arrigoni Brothers Co.

What is Release or a Waiver of Liability?

A release or waiver of liability is an exculpatory contract that exempts the defendant from any known or unknown liability that may arise due to his ordinary negligence causing injuries to the plaintiff while participating in an event or activity. By signing such a waiver, the plaintiff relinquishes his right to resort to legal remedies upon the happening of such unfortunate occurrences as enlisted in the contract. Correspondingly, the defendant is precluded from all the parallel liabilities. The defense is generally contended in personal injury lawsuits arising at sports or recreational programs.

In the case of Hussein v. L.A. Fitness International, LLC, the plaintiff and the defendant had executed a contract that included a ‘release and waiver of liability and indemnity’ clause explicitly stating that the member, i.e., the plaintiff in the instant case, shall assume complete responsibility for the risks and injuries caused to his person or property from the use of services, facilities and equipment of the L.A. Fitness and not hold it liable. The Hon’ble Court accepted the defense of waiver of liability raised by the defendant and dismissed the case.

In another case where the plaintiff encountered injuries during a bicycle tour and contended that the defendant acted negligently by not informing him about the hazardous grooves in the route which caused his fall, the Hon’ble Pennsylvania Commonwealth Court, taking due notice of the liability waiver clause incorporated in the contract executed between the parties, observed that the plaintiff was well-aware that indulging in such an activity could result in a serious bodily injury and had acknowledged the same by signing the contract.

Therefore, for a defendant to claim the defense, following must be established:

  • The clauses in the waiver must be crystal clear to preclude the defendant from all legal liabilities, including those arising from his negligence.
  • The waiver clause must not be hidden in fine prints.
  • The waiver must be signed by the plaintiff.

However, it must be noted that the defendant is exempted only for ordinary negligence and not for gross or intentional negligence. A grossly negligent act may be understood as extreme departure from the ordinary standard of conduct that a reasonable man shall employ to prevent harm to oneself or to others. The Supreme Court of California noted that a liability waiver contract that attempts to shroud the grossly negligent act of the defendant is unenforceable in the eyes of law owing to public policy. Accordingly, in another case, the Hon’ble Court found the gym to be grossly negligent for failing to take even the minimal care of its equipment and held it liable to compensate the plaintiff.

How can statutory limits be employed?

The statute of limitation prohibits a plaintiff from instituting any accident or injury suit in a court of law beyond a specified period of time. A plaintiff is entitled to seek legal remedies only within a certain time period. Upon the expiry of the prescribed period, he is legally barred from claiming any damages from the defendant, and accordingly, the defendant can use it as a defense for the dismissal of the suit without getting into its merits. The limitation period may be as less as one year, such as in the states of Kentucky and Louisiana, or as high as six years, such as in the states of Maine and North Dakota.

However, mere filing of suit within the specified period is not sufficient and requires diligent service of process by the plaintiff to the defendant. While some states require only reasonable attempts for service of process, irrespective of it being a success, such as Texas, others require effective service within a specified period of time, such as 180 days in Oklahoma and 120 days in Nevada.

In the absence of exercise of diligence by the plaintiff, the defendant can employ it as a good ground of defense in a personal injury lawsuit. In Ashley v. Hawkins, the contention of the defendant that the expiry of eight months before the third attempt of service of process was made by the plaintiff exhibited lack of diligence was accepted by the Supreme Court of Texas. On the contrary, the 37 attempts made by the plaintiff within 9 months for the service of process were held to be diligent and hence, the Hon’ble Court rejected the defense of statutory limitation raised by the defendant.


While the personal injury laws allow compensation to the victims, the defendants are simultaneously vested with defenses to protect their rights and interests. Therefore, should the plaintiff decide to take the matter to trial, the defendant may, depending upon the facts and circumstances of the case, employ the appropriate personal injury defenses to reduce his liability. Further, it is always recommended to seek advisory from and engage a civil defense attorney, preferably someone specializing in the subject matter of the lawsuit.

By Anushri Maskara, Attorney

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