Personal Injury

Can I Claim Self-Defense in a Personal Injury Case?

By David Berg, Attorney
Self-defense rarely comes into play in a personal injury case, but sometimes the defendant can raise this argument in response to certain kinds of personal injury lawsuits.

Self-defense is certainly a very important concept in criminal cases, but it doesn't typically play much of a role in personal injury claims. Technically, self-defense can be raised in a few different kinds of personal injury cases, but not the ones you probably think of when you imagine an injury case.

Self-defense might come up in a civil lawsuit over acts like assault and battery, but it's not going to be raised (at least, not legitimately) in a car accident case, unless we're using the terms "self-defense" and "self-preservation" somewhat interchangeably.

Another thing to keep in mind is that self-defense isn't an argument that the plaintiff (the person who was injured) would raise. Rather, it's the defendant who would claim self-defense in response to the plaintiff's allegations in a personal injury complaint. Let's take a closer look at these issues.

Self-Defense is an "Affirmative Defense"

The legal theory of self-defense is generally what is known as an "affirmative" defense. That means, it is the defendant (usually a criminal defendant, but sometimes a civil defendant) who typically claims self-defense, and who must establish its different elements.

In the context of a civil case (in response to a personal injury lawsuit, for example), in order to prove that you acted in self-defense, you usually must show that:

  • you reasonably believed that the plaintiff was going to harm you, under the circumstances, and
  • you used only the amount of force that was reasonably necessary to protect yourself.

Self-Defense, Negligence, and Intentional Torts

Let’s think about how self-defense might possibly be argued in a personal injury case based on negligence (in other words, a case where the defendant is alleged to have acted carelessly, as opposed to intentionally).

Let’s say you were injured in a car accident or a slip and fall. In establishing liability, you would be claiming that the other driver or the property owner was negligent, and that his/her negligence caused your injuries. In such a case, self-defense would not play a role. In fact, the plaintiff in a personal injury case would never have any cause for claiming self-defense. The plaintiff is simply claiming that the defendant's negligence caused the plaintiff's damages. It's nearly impossible to picture a scenario where self-defense would be part of the plaintiff's argument.

In reality, if self-defense can be applied in a personal injury case, it is the defendant who would claim it. Let's look at a few examples.

What if, hypothetically, you are driving down a two-lane, narrow street, when you see a large car coming at you, taking up both lanes. There are parked cars on both sides of the street, and you make the decision to swerve into one in an effort to avoid getting hit head-on. Unbeknownst to you, there is someone sitting behind the wheel of the parked car, eating his lunch. The other driver flees the scene, and the person who was sitting in the parked car sues you for his neck injuries. In that situation, your lawyer might consider claiming that you acted out of necessity, and that under the circumstances you made a reasonable decision to purposefully hit the parked car, in an effort to avoid a more catastrophic accident. It's not an argument that's going to necessarily be successful (in reality, the driver who fled is likely liable for the parked driver's injuries), and it's not technically self-defense, but it's in the legal ballpark.

Where self-defense might apply as a legitimate defense in a personal injury case is in one based on allegations of civil battery. You probably think of assault and battery as criminal acts, but they can form the basis of a civil lawsuit as well. Basically, a civil battery is an unauthorized or offensive touching. If someone hits you or touches you in an inappropriate way, you would have a claim against that person for civil battery (and/or civil assault).

How might self-defense come into play in a civil battery or assault case? Let’s say that someone sues you for assault/battery, claiming you hit them. Your defense is that you had a reasonable fear, based on the circumstances, that you were in imminent harm and that the plaintiff was actually going to hit you. So you struck first, in self-defense, using a reasonable amount of force. If the jury believes you, you will avoid liability for civil assault/battery.

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