How Affirmative Defenses Work in Personal Injury Cases

If you’ve been sued for personal injury, you’re likely wondering what your strongest defense will be. The good news is that defendants in personal injury actions are not limited to just one type of defense, but can present multiple defenses for the strongest impact. The bad news is that some defenses are more difficult to wield than others. One of the most common defense tactics for defendants in personal injury cases is to present affirmative defenses, which in some cases require a great deal of effort on the defendant’s part but can be highly effective at mitigating or even avoiding liability. Here, our North Carolina personal injury defense attorneys explain how affirmative defenses work. 

How Affirmative Defenses Differ From “Standard” Defenses

The burden of proof is on the plaintiff in personal injury actions, meaning that the plaintiff must prove all of the elements of their claim (typically negligence) by a preponderance of the evidence in order for the defendant to be found liable. The defendant does not have to disprove anything. Even so, defendants can and do mount vigorous defenses in litigation to protect their interests. 

With “standard” defenses, the defendant challenges the sufficiency of the plaintiff’s case by attacking one or more of the elements of their claim. For example, in a premises liability action, the plaintiff could argue that the defendant breached a duty by not warning of a hidden danger,  to which the defendant could respond by arguing that the plaintiff’s evidence does not show that the danger was, in fact, hidden. If the plaintiff cannot prove a breach — a required element of a negligence claim — the entire claim will fail. 

With affirmative defenses, the defendant makes a counter-argument that could defeat or mitigate liability even if the plaintiff’s allegations are true. One particularly well-known example of an affirmative defense is self-defense in the criminal law context, where the defendant argues that their actions were necessary to protect themselves or others. A defendant who raises an affirmative defense bears the burden of proving it by a preponderance of the evidence (a phenomenon known as “burden shifting”). 

Our North Carolina personal injury defense attorneys have extensive experience successfully wielding all defenses available at law on behalf of our clients. 

Common Affirmative Defenses Available to Defendants in Personal Injury Actions

The following are some of the most common and effective affirmative defenses available to defendants in personal injury actions: 

The Statute of Limitations Has Expired 

The statute of limitations for most civil actions in North Carolina (including personal injury actions) is three years. While that sounds fairly straightforward and unlikely to lead to disagreements, statutes of limitations are more complex than they first appear. Generally, the statute of limitations starts running when bodily harm or property damage becomes apparent or ought reasonably to have become apparent, whichever occurs first. That date can be hotly contested in certain types of personal injury claims (particularly medical malpractice), as the parties disagree over when the injury was apparent or “should have” been apparent to the plaintiff. A defendant who argues that the statute of limitations has run must present evidence that the plaintiff knew or should have known of their injury before a particular date.  

The Plaintiff Assumed the Risk 

The assumption of the risk doctrine holds that a defendant cannot be held liable for a plaintiff’s injuries if the plaintiff knew of the risks associated with a particular activity and voluntarily exposed himself or herself to them. To prevail on an assumption of the risk defense, the defendant must show (1) the plaintiff appreciated the risk and (2) the plaintiff consented to the risk. “Consent” in this context may be either express (e.g., by signing a liability waiver) or implied (e.g., the risk was open and obvious to the plaintiff). This defense can be tricky to pursue, as reasonable minds can differ as to how open or obvious a particular risk was and whether the plaintiff truly appreciated the full scope of the risks involved in a particular activity. 

The Plaintiff Was Partially Responsible for Their Injuries 

Unlike most states, North Carolina follows the contributory negligence rule, which bars plaintiffs from recovery if they were even slightly at fault for their injuries. To illustrate, assume that a customer is briskly walking through a store and slips and falls and breaks their ankle, after which they sue the store owner for negligence. However, the defendant presents evidence that the customer walked past several “wet floor” signs and was thus partially responsible for the fall. In the products liability context, contributory negligence could include misusing or improperly modifying the product at issue. If the defendant can prove that the plaintiff was contributorily negligent, he or she will be able to avoid liability for the negligence claim. Contact one of our North Carolina personal injury defense attorneys for more information about how contributory negligence works. 

The Plaintiff Failed to Mitigate Their Damages 

Successful plaintiffs in personal injury actions are entitled to recover the full measure of damages from the defendant. However, a plaintiff is only entitled to recover damages that are attributable to the defendant’s conduct, and plaintiffs have a legal duty to mitigate their damages. Damage mitigation in the personal injury context could include, for example, seeking medical treatment, following doctors’ orders, and refraining from engaging in activities that would exacerbate an injury. In many cases, plaintiffs attempt to recover more damages than they are entitled to, which makes failure to mitigate an attractive affirmative defense for defendants. 

Let a North Carolina Personal Injury Defense Attorney Craft the Best Defense Strategy for You

If you’ve been sued for personal injury, you need to mount a vigorous defense that takes the facts and circumstances of your individual case into account. The best way to do that is to speak with an experienced defense attorney. To get started, please contact a North Carolina personal injury defense attorney at Harris, Creech, Ward & Blackerby by calling 252-638-6666 or using our online contact form.