We all know that the basic elements of a tort case involve the existence of a duty with a breach of that duty that causes damages. We also know that there are common defenses which we face in our tort cases. Inevitably these are based upon one of the required elements for a valid tort claim. It is helpful, therefore, for us to review the defenses which we should have in mind as we prepare our case and go through discovery. Here is a simplistic refresher on the elements:


The existence of a general duty of reasonable care imposed on all persons not to place others at foreseeable risk of harm through their conduct.


The exercise of unreasonable conduct in light of the foreseeable risks to others which a reasonably prudent person under the same or similar circumstances would not have done or should have done.


The breach was the cause of the claimed harm and that it was a proximate cause, meaning it was a reasonably foreseeable anticipated outcome.


The damages include past, present and future physical and emotional injury non-economic as well as economic damage.  In many jurisdictions an additional damage claim for punitive conduct is allowed.

In analyzing the application of these elements it’s important to keep in mind that the proof can be circumstantial, that is evidence from which a reasonable inference can be drawn. Some circumstances rise to the level of the application of the doctrine of Res Ipsa Loquitur.

With this outline in mind the common defenses that we face are these:


  1.  Denial that any duty existed
  2. In malpractice cases that this wasn’t their patient.
  3. Statutory defenses such as:  (a)Good Samaritan laws (b) Immunity statutes & (c) Statutes of limitation
  4. Assumption of  risk


  1.  A factual denial of the allegations claimed. “The light wasn’t red.”
  2. A dispute as to what the duty of care was at the time of  the  occurrence
  3. In malpractice, a dispute as to the  standard of  care
  4. In malpractice, a claim of exercise of  medical judgment – the existence of  a  “respectable minority” viewpoint


  1.  The conduct involved didn’t cause the harm claimed
  2. The claimed harm  was due to an inevitable occurrence
  3. Blame game  & empty chair defense: someone or something  else was the cause
  4. A denial of  legal responsibility: Respondeat superior doctrine
  5. If there was fault, the plaintiff  was at fault too: Comparative fault


  1.  A denial that the damages claimed are authentic
  2. A claim of exaggerated or unconnected damages
  3. A claim of preexisting conditions
  4. Issues about degree of seriousness of injury
  5. Claims that the damages are limited by life expectancy issue
  6. Failure to mitigate damages claim

We need to have the basic defenses in mind as we prepare our case. For example, we frequently are met in malpractice cases with the claim that the action fell into an area of medical judgment so the conduct did not violate an established standard of care. In discovery, we should consider whether to ask the defense witnesses whether in their opinion the defendant doctor “had made an error of judgment?” to encourage a denial and follow with questions eliminating or limiting the judgment defense. Your own experts should deal with the issue as well. They should explain that the exercise of medical judgment involves a weighing of risk and benefit based upon valid findings. Examples of valid exercise of careful medical judgment and an opinion this defendant’s actions didn’t qualify are important. Characterizing the defendant’s actions as “conscious choices” and not merely a “judgment” focus on the choice of an unsafe alternative. Comparing the doctor’s claim of exercising judgment to that of choosing to run a stop sign connects to the idea of medical stop signs being ignored.

These and other rebuttal of defenses should be thought out and prepared for in advance of serious discovery in your cases. Taking the time to do so will pay dividends.

This entry was posted in Defenses. Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *