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Understanding Affirmative Defenses


It’s important for anyone filing a personal injury lawsuit in Florida to understand what arguments the defendant might make. Generally the defendant will start by saying that he wasn’t negligent and didn’t cause the plaintiff’s injuries. But the defendant could also take a more aggressive approach. For example, the defendant may raise an affirmative defense to defeat the claim entirely or to mitigate liability (lessen the severity of the damages).

Types of affirmative defenses that can be used in Florida are:

  1. Assumption of risk. Under the “assumption of the risk” doctrine, courts limit liability when plaintiffs knew the risks of a dangerous activity. A plaintiff who “assumed” the risk can’t necessarily blame anyone else for the injury. In those cases, the defendant can say, yes, the plaintiff sustained an injury, but the plaintiff knew what he was getting himself into. Injuries sustained while playing a contact sport like football are one common example. Another is when you sign a contract that says you are assuming a particular risk. For example, baseball tickets have a clause that says guests assume the risk of getting hit by a baseball.
  2. Contributory negligence. Florida follows a pure comparative negligence standard, which means that your recovery is limited by the percentage that you were negligent. So if you are injured in an accident but you were 30 percent at fault, then the amount of compensation you can receive will be reduced by 30 percent. The jury will assess each party’s percentage of fault and assign damages accordingly.
  3. Res judicata. This is a legal doctrine that prevents parties from relitigating the same claim. In other words, you can’t sue the same person twice for the same negligence claim.
  4. Statute of limitations. The law only gives injured plaintiffs a limited amount of time to file a lawsuit. Generally, you only have four years from the date of the accident to file your claim. But there are exceptions to this rule and special circumstances that have a different time limit. Contact an experienced attorney immediately to make sure you file your claim in time.
  5. Arbitration and award. Some negligence claims are governed by a contract signed by both parties. If the contract has a provision requiring the parties to go through arbitration then the defendant may raise that arbitration clause as an affirmative defense.

These are just some of the affirmative defenses that a defendant may raise in your case. The facts of your claim will determine what defenses may be applicable. An experienced attorney will explain what to expect in your personal injury case.

Contact Us Today

Contact a West Palm Beach personal injury attorney at The Pendas Law Firm today for a free consultation if you were injured because of someone else’s negligence. We will examine the facts of your case and develop an effective strategy to defeat any affirmative defenses raised by the negligent party.

The Pendas Law Firm also represents clients in the Fort Lauderdale, Orlando, Fort Myers, Miami, Tampa, Jacksonville, Daytona Beach and Bradenton areas.



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