Possible Defenses in Personal Injury Cases

There are many types of accidents that can result in a personal injury lawsuit-mainly slip and fall and car wrecks. When filing a personal injury case, you might be wondering what defenses you’ll be getting from the other side. If you are the defendant, you will want to understand what defense you can use to help avoid liability.

Here are several defenses often used in personal injury claims.

Plaintiff’s Fault

When a personal injury suit is filed, one of the first arguments from the defendant’s side is that the plaintiff themselves is actually responsible for the accident. If you have filed a suit, but are partially to blame for the accident, your compensation will most likely be impacted. This could happen early in the suit, if you settle your personal injury case out of court, or it could be the result of a long trial, where the jury reaches a finding on liability (by apportioning fault between or among the parties) and proper compensation (the plaintiff’s “damages” award).

If you (the plaintiff) willingly took part in the activity that led to the injury, the court can say you “assumed the risk” and might deny your claim.

Comparative Negligence

Most states follow a “comparative negligence” rule in personal injury cases. Comparative negligence is a process where a formula is used to calculate each party’s degree of fault for the accident, such as a car wreck where you are 25% at fault and the other driver is 75% at fault. This can be concluded from the police report or agreed upon by insurance companies after an investigation of the accident. If you file a lawsuit for your injuries and property damage, any compensation you receive will probably be reduced by 25% (your degree of fault for the accident).

The majority of states follow comparative negligence principles when damage awards are tallied in personal injury cases. These states either use a “pure comparative negligence” system or a “modified comparative negligence” system. The difference between the two is that in the “pure” system, an injured plaintiff can recover damages regardless of their share of fault (meaning a plaintiff who is 90 percent liable can still technically recover 10 percent of their damages from other at-fault parties), while in a “modified” comparative negligence system, an injured plaintiff can recover compensation only if they are no more than 50 percent at fault (or less than 50 percent at fault in some states).

Contributory Negligence

Comparative negligence laws can reduce a victim’s compensation when they’re partially at fault, the concept of contributory negligence isn’t as forgiving. In states that follow contributory negligence principles, victims who share any degree of fault for an accident or injury are usually barred from getting any compensation via a lawsuit for personal injury.

If you live in a contributory negligence state and you’re in a car accident that was only 5% your fault and 95% the fault of another driver, you can’t recover any compensation for your damages through a personal injury lawsuit.

Assumption of Risk

In some personal injury cases, a defendant will argue that the injured party “assumed the risk” of getting injured by participating in an activity that could lead to injury. This defense is used often in lawsuits resulting from contact sports, games like paintball, and spectator injuries.

One key aspect of a successful “assumption of the risk” defense is that the injury must relate to the risk of the activity.  For example, you’re playing a game of organized basketball,  you’ve probably assumed the risk of getting elbowed inadvertently. A lawsuit over any resulting injuries probably wouldn’t be successful as you assumed the risk of injury by deciding to play in the game. On the other hand, if you are injured playing basketball, and the backboard broke and fell on you, the defendant couldn’t rightly argue that you assumed the risk of such a thing happening, because a falling backboard isn’t a danger that’s inherent in the game of basketball.

Source: NOLO


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