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Affirmative Defenses

Fairfax Injury Lawyer Brien Roche Addresses Affirmative Defenses

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There are several affirmative defenses that may be raised in regards to a tort claim reports injury attorney Brien Roche . Affirmative defenses are defenses that may be raised by a defendant that constitutes a complete bar to a claim. One of those affirmative defenses is that of the statute of limitations. Every state has a statute of limitations for virtually every type of civil claim whether it be a tort claim, contract claim or otherwise. If the claim is not asserted within the time allowed by the statute, then the claim is deemed to be barred. The assertion of a claim is accomplished in most states by actually filing a law suit at the courthouse. Some state require actual service of the suit papers upon the defendant before the statute of limitations runs.

Affirmative Defenses-Assumption Of Risk

Another defense that may be asserted in a tort case is that of assumption of the risk. Assumption of the risk involves the plaintiff understanding the nature of the risk involved and a voluntary acceptance of that risk. For instance, if you decide to go out to the supermarket during the middle of a very bad ice storm recognizing that the roads and walkways are not navigable and while walking from your car to the store, you slip and fall, then you probably have assumed the risk since you obviously knew that there was a risk associated with going out during those weather conditions and you voluntarily chose to accept that risk.

Affirmative Defenses-Immunity

Several states still recognize various types of immunities. That immunity may come in the form of sovereign immunity, charitable immunity or family immunity. Sovereign immunity is based upon the concept that the King cannot be sued; i.e. the sovereign or the government cannot be sued. Many jurisdictions have waived that immunity either in whole or in part. If the local and state governmental entity that you are planning on suing is deemed by state law to be immune from tort claims, then you may not be able to sue that entity at all unless they expressly choose to waive their immunity. Many governmental entities by means of state law have expressly waived their immunity either entirely or have allowed claims to be asserted against them up to certain dollar amounts. This is something that varies from state to state.

Charitable immunity is a doctrine that applies in many states to organizations that are truly charitable. A charitable organization is generally considered to be one that fulfills strictly a charitable function and does not make any attempt to collect debts. Charitable organizations may be immune from tort claims. For instance, if you were injured on the premises of the Red Cross because of some negligence on their part, depending on the law in that particular state where the Red Cross building is located, the Red Cross may well be subject to the defense of charitable immunity because they truly are a charitable organization.

There are certain states that still recognize elements of family immunity; that is, tort claims may not be asserted against parents or siblings for certain types of behavior.

Affirmative Defenses-Limitations

The statute of limitations is a defense that applies to any claim. Every claim has a defined statute of limitations. This statute of limitations is set by the state legislative body. The length of the statute of limitations is arbitrary, i.e. a number of years or months picked by the legislative body from that state. That then becomes the statute of limitations for that particular type of claim. In many jurisdictions, every conceivable claim may have a different statute of limitations.

For more information on affirmative defenses and other personal injury concepts see the other pages on this site or see the pages on Wikipedia

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Affirmative Defenses

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