Understanding Florida Affirmative Defenses

Mar 11, 2021

affirmative defense floridaAs in the rest of the country, most legal matters in Florida don’t make it to trial. Litigation can take significant time, money, and other resources from both sides, and it only makes sense that people would be nervous about trying their case in civil court.

So when a dispute does reach the trial stage, both sides need to be prepared. This is especially true for defendants, who may stand to lose a lot if the conflict is decided in the plaintiff’s favor.

Some of the most important tools in any attorney’s litigation toolbox are called affirmative defenses. Here’s a short guide to Florida affirmative defenses and how an attorney can use one to push your case toward a successful outcome.

What Is an Affirmative Defense?

When a plaintiff sues someone, they must articulate why the defendant is liable for the losses they suffered in the incident in question. The defendant can respond with a general denial but may also choose to assert a specific affirmative defense to reduce or eliminate liability altogether.

How Do Affirmative Defenses Work?

Civil cases are different from criminal proceedings in many ways, with one of the most prominent being who shoulders the burden of proof. In a criminal trial, the prosecutor must meet the “beyond a reasonable doubt” burden of proof to convict a defendant.

In a civil case, the burden of proof is much lower. All the plaintiff needs to do is show that the “preponderance of the evidence” demonstrates the defendant’s fault. In other words, if a jury decides that the plaintiff’s claim is more true than untrue, then the burden of proof is satisfied.

With an affirmative defense, the burden of proof is on the defendant to assert which defense applies to their case and provide specific evidence to back it up. If the defendant can successfully prove an affirmative defense in litigation, this can reduce the amount in damages they have to pay. In some cases, they may be able to negate liability completely.

An affirmative defense must be raised (named) by the defendant in response to the plaintiff’s liability claim. This can be done in the first pleading denying responsibility or later through amended pleading, but it must be asserted by the defendant in writing.

What Kinds of Affirmative Defenses Can I Assert in Florida?

Rule 1.110(d) of the Florida Rules of Civil Procedure gives a long (but not exhaustive) list of possible affirmative defenses. The most commonly asserted defenses are the following.

Statute of Limitations

A potential plaintiff has to file their claim before a certain amount of time elapses. In legalese, this time limit is known as the statute of limitations. If the plaintiff misses this window, a defendant can assert their failure as an affirmative defense and the judge may dismiss the case.

Contributory Negligence

Florida is a “comparative negligence” state, which means that a jury can reduce a plaintiff’s damages award by their percentage of fault in the incident.

For example, if a plaintiff is 30% at fault for an accident and the defendant was 70% at fault, then the plaintiff’s compensation will be reduced by 30%. Although this defense will not alleviate a defendant’s liability altogether, it can significantly decrease the amount they must pay.

Assumption of Risk

If the plaintiff knowingly does something that carries a risk of injury, they cannot claim full damages if they are injured. If you go to a baseball game and sit near the diamond, you might get a foul ball or two hit in your direction.

By choosing to attend the game and sit in this area, a plaintiff may be deemed to have assumed the risk of getting hit by a foul ball. If so, they might see their compensation reduced or eliminated based on their assumption of the risk.

Res Judicata

Criminal law has double jeopardy, but this right does not apply to civil cases. However, Florida law does state that you cannot be sued twice for the same claim. This doctrine is known as res judicata, and the defendant may assert this doctrine as an affirmative defense.

Questions About Affirmative Defenses and Personal Injury Cases? Call Emmanuel Sheppard & Condon Today!

Any legal situation can be stressful, but understanding how Florida affirmative defenses can help your case can be the difference between success and failure. At Emmanuel Sheppard & Condon, we are here to help.

Our personal injury team has decades of experience in civil litigation in the Pensacola area, and we are ready to put our knowledge of Florida law to work for you.

If you or a family member is involved in a personal injury suit and think one of these affirmative defenses might apply, give us a call. Contact us by calling 850-444-4878 or fill out our online contact form to schedule a free case evaluation today!