Defendant

An allegation of negligence forms the basis of the great majority of personal injury claims. A plaintiff might allege that the defendant ran a stop sign, for example, or that they negligently performed repairs to an air conditioner. If you are asserting negligence against a defendant, you must prove the following four elements:

1. The defendant owed you a certain duty of care. This element is almost always present since every mentally competent adult must observe enough care to avoid injuring others.
2. The defendant failed to comply with their duty of care. This might mean doing something wrong, or it might mean not doing something that the defendant had a duty to do.
3. You suffered quantifiable losses, including a physical injury.
4. The defendant’s failure to comply with their duty of care was a substantial cause of the losses that you suffered.

There are other kinds of fault-based liability as well. If someone intentionally injured you, for example, you could file an intentional tort claim against them. As you will see below, there are also forms of liability where you do not have to prove that the defendant was at fault to win.

Common defendants in personal injury claims include:

• Motorists,
• Owners of real estate,
• Dog owners,
• Product manufacturers and distributors,
• Doctors and other healthcare providers,
• Government agencies, and
• Nursing homes and nursing home staff.



Almost anyone can be named a defendant in a personal injury case.

It might seem counterintuitive to impose liability without proving the defendant was at fault. Sometimes, however, it makes sense. In some cases, the defendant’s fault is obvious, even though it is impossible to prove. In other cases, one party bears responsibility for the acts of another party.

Strict Liability

In a strict liability claim, you don’t even ask whether the defendant was at fault. Strict liability claims include:

• Workers’ compensation claims, where workers’ comp insurance pays regardless of fault;
• Product liability claims, where the law assumes fault if a product is defective and unreasonably dangerous;
• Dog bite claims, where the dog owner is liable regardless of the dog’s previous docility; and
• Ultrahazardous activities, such as blasting.

Florida’s no-fault auto accident compensation works a lot like strict liability in the sense that you don’t need to ask who was at fault. Each party looks to their own insurance to pay for all but the most serious injuries.

Vicarious Liability

Vicarious liability describes a situation in which a defendant bears liability for the wrongdoing of another party. It might seem unfair, but there are reasons why the law might hold one party responsible for the harm done by another. In Florida, strict liability can apply when:

• An employer (usually a company) bears liability for the on-duty misconduct of their employee.
• A parent allows their teenager to drive their car, and the teenager negligently causes an accident.
• The defendant authorizes someone to act on their behalf (through a power of attorney, for example).

It is particularly common to hold an employer liable for the acts of their employee.

How much evidence do you need to win your claim against a defendant? Normally, all you need is a “preponderance of the evidence.” Imagine loading evidence in favor of the defendant’s liability on one side of a set of scales and loading evidence against liability on the other. As long as the evidence in favor outweighs the evidence against, even if only by a hair, you win your claim. This is known as the “preponderance of the evidence” standard.

It is much, much easier to win a personal injury lawsuit than it is to win a criminal conviction. That is why you can still win a wrongful death lawsuit against a defendant who has been acquitted of homicide in criminal court for the same conduct.

When you file a personal injury claim against a defendant, it is your job to prove it by a preponderance of the evidence. All the defendant has to do to defeat your claim is to present enough evidence to prevent you from proving every element of your claim (causation, for example) by a preponderance of the evidence.

Instead of denying your claim, the defendant can rely on the “affirmative defense” strategy. Under this strategy, the defendant is saying, “Even if everything the plaintiff says is true, I am still not liable because [insert affirmative defense here].” Following are examples of common affirmative defenses:

• Expiration of the statute of limitations deadline to file a lawsuit ()typically two years in Florida).
• Assumption of the risk: The defendant knew the inherent risk of the activity and voluntarily accepted them in advance.
• Failure to mitigate damages: Failure to act reasonably to minimize losses. The plaintiff cannot collect avoidable damages.
• Comparative fault: The plaintiff was partly at fault for the accident.

Some of these defenses, such as the statute of limitations and assumption of the risk, eliminate all of the defendant’s liability if they succeed. Others, such as failure to mitigate damages, merely reduce the defendant’s liability. Comparative fault can function as either a partial or a complete defense, depending on the plaintiff’s degree of fault.