In personal injury cases, affirmative defenses can be partial or complete defenses, which affirm the plaintiff’s allegations, but present the facts differently. This means even if the incident happened as claimed by the plaintiff, the defendant does not need to pay any damages. Such defense could be based on the case facts or it could be based on the laws governing the case.

Here are some of the usual affirmative defenses based on the laws:

  • Wrong venue for the case or the jurisdiction of the court does not extend over the case
  • Expiration of statute of limitations, which means the case is not filed within the stipulated time from the date of the accident
  • The plaintiff does not have the legal right to file the specific case
  • Federal or state law has precedence over the plaintiff’s claim, which means the victim’s claim is preempted by certain federal or state law
  • The plaintiff had consented to the behavior that caused the injury or consented to bearing the injury.
  • The plaintiff assumed the risk of being injured, which means the plaintiff understood that there was risk of being injured. Alternatively, the plaintiff willingly undertook the act that he or she knew would cause injury.
  • The plaintiff failed to reduce or mitigate damages.
  • The plaintiff was acting in self-defense or in defense of another person or for protecting property.
  • The act of the defendant that caused injury was done in order to avoid greater harm.
  • Contributory or comparative negligence, which means the plaintiff was responsible in part for his or her injuries.
  • Nonparty liability, which means another party, was entirely or partly responsible for the injuries suffered by the plaintiff.

There can be number of affirmative defenses that are based on the facts governing the case. Some of the usual ones are:

If someone volunteered or paid to go on a white water rafting trip for instance and they knew the dangers then there is an issue there if they are subsequently hurt. It can certainly nullify the case if the so called victim signed their life away or signed an indemnification document. Anyone with a sound mind should know that floating down a wild river carries some risk. If the person does not have a sound mind, that is another issue.

Everyone Else Knew

It also does not help the victim if they were in a group of people and everyone signed the same paper work and knew what they were getting themselves into. Level 4 rapids can be quite dangerous and any mediator or court room is going to know this.