5 Defenses Used To Counter Personal Injury Claims

When you bring a personal injury claim in California, the defendant(s) may assert a number of different defenses in order to avoid liability. A well-argued defense can seriously hurt your potential damage recovery. As such, it's absolutely critical that you work with an experienced personal injury attorney who has a track record of success in securing favorable results despite the presence of difficult defendants. Contact Attorney Brian O' Grady today for a free consultation to assess your various claims.

The following is a non-exhaustive list of common defenses used by defendants to counter a personal injury claim.

There Were Pre-Existing Conditions

A plaintiff is only entitled to compensation if he or she can show that they were actually injured and suffered damages. This can create difficulties in cases where the plaintiff has a pre-existing medical condition that is closely related to the injury suffered due to the defendant's negligence.

Let's clarify with a brief example.

Suppose that you have a constant, minor tremor in your hands that is not connected to any serious neurological illnesses, such as degenerative disorders - this is your pre-existing condition. You are injured in a slip-and-fall accident on defendant's business premises. The injury damages your spine, resulting in more significant tremors and muscle weakness that affect your ability to manipulate your environment, and even to do your job properly.

The defendant will try to claim that the injury is not "new." They will argue against any damages relating to the tremor and its affect on your quality of life (and wage loss).

You can overcome this defense by showing that the injury, though closely related in certain ways, is actually different. For example, you could have your treating doctors testify that the new tremor is significantly worse and that it is caused by actual nerve damage.

Worth noting, also, is that California law entitles plaintiffs to recover for injuries that are worsened by the defendant's negligence, but that are not newly created. For example, if you have a broken leg, and then you break it more severely thanks to the defendant's negligence, you could recover for the damages suffered due to the worsened injury.

There Was an Intervening Event

A defendant cannot be held liable for an injury that they did not actually cause. In many personal injury lawsuits, the defendant will argue that they should not be held liable because of the occurrence of some intervening cause that frees them of liability. Importantly, this intervening cause cannot have been reasonably foreseeable.

What does this mean, exactly?

Imagine that a defendant negligently shoves you out of the way while you are walking past each other on a busy public sidewalk. To stop yourself from tripping and falling, you grab onto another pedestrian. This third-party pedestrian is angered and suddenly punches you in the face, causing you injuries. The shoving defendant may have a solid defense by arguing that he could not have reasonably anticipated that another pedestrian would punch you as a result.

Now let's take a look at a different situation.

Imagine that a defendant-driver rear ends you into oncoming traffic and you get into a second collision, where you are seriously injured. Though the defendant might try to argue that the second driver (in oncoming traffic) was an intervening cause, you could overcome this defense by showing that it was reasonably foreseeable that by rear ending you into oncoming traffic, you would be hit by a second vehicle.

No Duty of Care Was Owed to the Plaintiff

For a defendant to be held liable under a theory of negligence, the plaintiff must prove that a duty of care existed between them. Understanding how the duty of care applies can be a bit confusing, so let's use an example for clarification.

Suppose that a person breaks into a store after hours. The floor is slick with cleaning chemicals, and as a result, he slips and injures himself. This plaintiff would likely have their claim dismissed, as the defendant would be able to argue that they owed no duty of care to a breaking-and-entering plaintiff who came into the store after hours.

Liability Was Waived by the Plaintiff

Liability waivers are common, especially in dangerous commercial recreational activities (i.e., rock climbing, rafting, bungee jumping, etc.). In California, liability waivers are enforceable, though they do not always apply - it largely depends on the circumstances of the accident.

When a liability waiver has been signed, the defendant can argue that the plaintiff has quite literally "signed" away their right to sue for damages. If you have been injured during recreational activities for which you signed a liability waiver, don't be distraught! It's worth consulting with an attorney to determine whether the liability waiver is applicable to the circumstances of your case.

Comparative Fault Applies

California applies pure comparative fault. In pure comparative fault, every party that contributed to the plaintiff's injuries is assigned a percentage of the total fault - even the plaintiff!

For example, imagine that a plaintiff is injured in a motor vehicle accident, but the facts reveal that the plaintiff was partially at-fault for not doing more to avoid the accident. The defendant might be held 70% at-fault, while the plaintiff might be held 30% at-fault. This a partial defense for the defendant, as it will not eliminate the plaintiff's ability to recover damages, but will reduce their total damage recovery by the percentage fault they are responsible for.


To set up a free consultation with an experienced California personal injury attorney, call the Law Offices of Brian O' Grady at (650) 318-6131. Attorney Brian O' Grady values open and honest communication with clients, and will address any questions or concerns you may have.

We look forward to speaking with you.