Defenses to a Lawsuit for Accidents and Injuries

Authored By: Carl Vinson Institute
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This document answers the following questions:

  • What are the three general types of defenses to intentional torts?
  • What are the defenses to claims of negligence and strict liability?
  • What is the tort for abuse of the judicial process?
  • How can you protect yourself from being sued for a tort?

Defenses to Intentional Torts

What happens to the person who is sued for an intentional tort?

There are three general types of defenses to torts: general denial, justification, and mitigation (to mitigate means to make something less severe).

The denial type of defense simply involves a defendant saying, "No, I didn't do what the plaintiff says I did." When this type of defense is employed, the jury must determine whether to believe the plaintiff or defendant. It then awards or denies damages accordingly.

To use the defense of justification, the defendant admits doing the acts complained of by the plaintiff but denies that the acts were wrong. For example, suppose you were being sued for battery. You might admit knocking down the plaintiff, but you deny that it was wrong because you were acting in self-defense. If the jury agreed with your defense, then the plaintiff would lose.

The third type of defense is mitigation. Defendants using this defense admit the conduct claimed by the plaintiff; that is, they admit their conduct was wrong. However, they attempt to reduce the amount of damages claimed by proving that they had no malice, bad faith, or intent to cause harm. Say you were sued by your neighbors for playing your stereo too loud every night. You might claim that you would have turned down the sound if you knew it bothered them. In other words, you would claim the harm was not intended. The success of your defense would depend on whether the jury agreed with it.

Defenses to Negligence and Strict Liability

If a person is sued for money damages arising from negligence, there are two main defenses available. These defenses may prevent the plaintiff from recovering money damages, or they may reduce the amount of money awarded for damages. These defenses are (1) assumption of the risk and (2) comparative (or contributory) negligence.

What if the defendant can show that the plaintiff knew about the danger but proceeded to act anyway? The plaintiff would not be able to recover damages for his or her injuries. This defense is called assumption of the risk. To be used, the risk must be a foreseeable one. 

Sometimes an injury is caused by the negligence of both parties. Under the rule of comparative negligence, each party is assigned a percentage of the total negligence (100 percent). The plaintiff can only recover money damages if his or her percentage of negligence is less than 50 percent.

To determine the amount of an award at trial, the jury would first determine how much to give the plaintiff for his or her injury. The amount would then be reduced by the plaintiff's percentage of fault. In figure 103, let's say the jury awarded Whitney $10,000 for his injuries but found that he was 20 percent negligent. The total award would be $8,000 ($10,000 minus 20 percent).

In Georgia, the rule of comparative negligence has replaced the harsher rule of contributory negligence. However, contributory negligence is still used in other states. Under this harsher rule, the plaintiff could not recover any damages if he or she had been at all negligent.

Defenses to Claims of Strict Liability

In a strict liability case, the defendant would try to show that the product was not the cause of the damages or that there were no damages. Misuse of the product might also be claimed, although courts have said that some misuse should be anticipated.

Abusive Lawsuits

The Georgia legislature created a new tort that may be used as a defense by plaintiffs or defendants. It is a tort for abuse of the judicial process. It occurs when a party brings a claim or asserts a defense with malice and without basis for it in law or fact.


How can you protect yourself from being sued for a tort? The amount of money damages asked for can be devastating-in the thousands of dollars. Your best protection is to exercise care in your daily activities. The law is not hard to follow. It simply requires a person to behave so as not to cause injury to the person or property of another.

However, you may further protect yourself from the consequences of a negligent act with insurance coverage. The two most common types are homeowner and automobile coverage. Insurance provides a fund of money to be used if a negligent act by the insured person causes damages. Most insurance policies do not provide coverage for intentional torts that result in harm to a person or property.

* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase ator by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.

Last Review and Update: Jul 30, 2004