Strictly speaking, a defendant is the accused party in a lawsuit or a criminal prosecution. In a personal injury claim, one might use the term “defendant” to refer to any party against whom someone else is claiming personal injury damages. That is how the word “defendant” is used here.

The Elements of a Negligence Claim

The Elements of a Negligence Claim

Negligence, which means something like carelessness, is the most common basis for a personal injury claim. Negligence claims are most commonly associated with auto accidents. To win a negligence claim, you must prove the existence of each of the following four elements:

  • The defendant owed a duty of care to the plaintiff (the victim);
  • The defendant breached (failed to comply with) their duty of care;
  • The plaintiff suffered a physical injury; and
  • The defendant’s breach of their duty of care was the proximate cause of the plaintiff’s injury.

“Proximate cause” exists when the causal relationship between the defendant’s breach of duty and the plaintiff’s injury was clear enough that the defendant should have foreseen the high likelihood of injury. 

The Burden of Proof

The burden of proof provides a standard for the amount of evidence you need to win your claim. The following three standards are common in personal injury lawsuits and criminal prosecutions.

A Preponderance of the Evidence

The “preponderance of the evidence” standard is a relatively lenient standard of proof. To meet it, all you need to do is show that whatever fact you are trying to prove is more likely than not to be true. Even a 51% likelihood is enough.

Clear and Convincing Evidence

“Clear and convincing evidence” is evidence that is strongly convincing. This standard is harder to meet than a “preponderance of the evidence” but easier to meet than “beyond a reasonable doubt.” In personal injury cases, you rarely use this standard unless you seek punitive damages.

Beyond a Reasonable Doubt

The “beyond a reasonable doubt” standard applies only to criminal defendants, not civil lawsuit defendants. It is the most demanding standard of all to meet. Its demanding nature explains why a defendant can win an acquittal of a murder charge in criminal court and still lose a wrongful death lawsuit in civil court based on the same death.


To defend against a plaintiff’s assertion of liability, a defendant can take two approaches: defense through denial and affirmative defense. 

Defense Through Denial

In defense through denial, the defendant’s goal is to use contrary evidence to prevent the plaintiff from accumulating a “preponderance of the evidence.” Suppose, for example, that the plaintiff presents testimony that the defendant breached their duty of care. 

The defendant can oppose that testimony by (i) cross-examining the plaintiff’s witness to try and discredit them or (ii) calling their own witness to present contrary testimony. Alternatively, there might be other ways to deny the plaintiff’s attempted proof.

Affirmative Defenses

An affirmative defense works differently than a defense through denial. In an affirmative defense, the defendant is saying, “Even if everything the plaintiff is saying is true, I am still not liable because [insert affirmative defense here].

The defendant must take the initiative to assert an affirmative defense, and they must prove it by a preponderance of the evidence. Some affirmative defenses are complete defenses, while others are partial defenses. Below is a list of some of the most common affirmative defenses.

Comparative fault

Sometimes the plaintiff and defendant share fault for an injury. Illinois law resolves liability in this situation through the doctrine of comparative fault. Under comparative fault, a court assigns a percentage of fault to each party. If the plaintiff is less than 51% at fault, they will lose damages directly proportional to whatever percentage of fault the court assigns them. If their percentage of fault is 51% or higher, their damages will drop to zero.

Expiration of the statute of limitations deadline

The statute of limitations sets the deadline by which you must either file a lawsuit, finalize a settlement, or abandon your claim. In Illinois, the statute of limitations for most personal injury cases is two years in most cases.

Assumption of risk

Under certain situations, such as contact sports, the defendant is not liable for the plaintiff’s injury if the plaintiff knew of the risk of the activity and voluntarily assumed it. Assumption of the risk might apply, for example, if the plaintiff broke their leg skydiving. In many (but not all) assumptions of risk cases, a key item of evidence is a signed waiver of liability. 

Contact an Experienced Chicago Personal Injury Attorney

It’s never too early to talk to a Chicago personal injury lawyer. And unless you have settled or reached a court judgment, it’s never too late. Personal injury lawyers generally offer free case consultations, and they include no obligation to hire the lawyer. Remember: when you hire a personal injury lawyer, you only pay attorney’s fees if you win.