An affirmative defense is an argument that the defendant claims in response to a plaintiff’s cause of action that, if proven, negates liability even if the plaintiff has proven that the defendant committed the wrongdoings that are alleged. A defendant must raise any affirmative defense they wish to use in their answer to the plaintiff’s complaint or they risk waiving those defenses. The defendant bears the burden of proof when asserting affirmative defenses and must prove each element of their affirmative defense(s) by a preponderance of the evidence. Common affirmative defenses raised in personal injury lawsuits include assumption of the risk, comparative negligence, and failure to mitigate damages.
Assumption of the Risk
Assumption of the risk is a legal doctrine under which a plaintiff cannot recover damages for an injury sustained when they voluntarily exposed themselves to a known danger. If a plaintiff knew of a hazardous condition and willingly exposed themselves to it anyway, they are precluded from recovering damages for any injury they sustained as a result.
To prove assumption of the risk, the defendant must show that:
- The plaintiff had actual knowledge of the risk involved.
- The plaintiff voluntarily accepted the risk, either expressly through agreement or implied by their words or conduct. If the plaintiff assumed the risk, the defendant does not owe them a legal duty and the plaintiff cannot recover for their injuries caused by either the inherent risk of the activity or by the defendant’s negligence.
Assumption of the risk is commonly raised in premises liability cases when the defendant had a “no trespassing,” “enter at your own risk,” or similar sign warning entrants of possible danger on the property. Other common claims in which defendants assert assumption of the risk are exposure to dangerous chemicals and extreme sports activities. Fitness centers commonly include an assumption of the risk clause in their membership agreements.
Comparative Negligence
Comparative negligence may be asserted when both the plaintiff and the defendant were negligent in bringing about the plaintiff’s injury. In states that apply a “pure” theory of comparative negligence, when the jury allocates fault, it reduces the plaintiff’s damages by the percentage of fault it attributes to the plaintiff. For example, if the jury determined that the defendant was 60% at fault for the plaintiff’s injury and the plaintiff was 40% at fault, the plaintiff would only recover 60% of their total damages. Conversely, if the jury determined that the plaintiff was actually 60% at fault and the defendant was 40% at fault, the plaintiff would recover only 40% of their total damages.
Some states apply a modified version of comparative negligence, which permits the plaintiff to sue only if they are less than 50% at fault for the accident. A very small majority of states apply a contributory negligence standard under which the plaintiff cannot recover any damages if they are even 1% at fault for the accident.
Failure to Mitigate Damages
A plaintiff has a duty to mitigate damages where possible, and if they fail to do so, the defendant may raise this as an affirmative defense. For example, the defendant might claim that the plaintiff did not seek medical attention soon enough after the accident or failed to follow the doctor’s instructions for recovery. In a car accident case, the plaintiff can fail to mitigate damages if they do not move their car to the side of the road after the accident and it is hit a second time by a distracted driver. The affirmative defense of failure to mitigate damages requires the defendant to prove that the plaintiff did not take reasonable steps to reduce their losses.
If you or someone you know needs a personal injury lawyer, like one from Eglet Adams, you should reach out to a personal injury law firm right away. You do not want to miss the statute of limitations for filing.