Defenses in Personal Injury Cases

If you are considering filing a personal injury lawsuit you will need to be aware of the types of defenses (Arguments) that defendants can make.

Defenses in personal injury lawsuits are those that relate to:

  • What you, the plaintiff did in relation to your accident.
  • What you didn’t do after your injury, such as failing to get medical help, or filing the lawsuit on time.

Defenses based on your role

When you file a personal injury lawsuit one of the arguments that you are likely to hear from the defendant’s side is that you were at fault, or partially at fault for the accident or the injuries that you sustained. If you are partly to blame for the accident the amount of compensation that you’ll receive is likely to be affected.

The effect is likely to take place early on in the lawsuit if you decide to settle your case, and the settlement agreement has been drawn up. However, if you are partially at fault the amount of compensation you’ll receive may be drawn up at the end of a long trial. In these circumstances, it’s likely that a jury will reach a finding on the liability, by determining who is at fault, and how much they are at fault. The jury will also consider how much compensation you will receive by way of damages.

Your compensation could also be affected by the state and whether it follows a contributory negligence or comparative negligence standard. Additionally, if you willingly engaged in a dangerous activity and were injured as a result, the court or the insurance company may decide that you ‘Assumed the risk‘ in other words, you knew that you could get injured. If this is the case the court or the insurers may reject your claim.


Contributory Negligence

In states that follow this type of negligence, plaintiffs who are found to be even slightly at fault for their injury may not receive any compensation as part of their personal injury case. Even if you found to be just 5% at fault, you would not receive any damage for your claim.

Comparative Negligence

Many parts of the United States follow a comparative negligence rule that works to calculate the damages under a specific formula, looking at every party’s degree of fault. If for example you were found to be 50% at fault for an accident, any compensation you receive is likely to be reduced by 50%. This means that if the damages add up to $15,000, it’s likely that you will only receive $7,500. However, many states fall into two categories when damage awards are calculated, these categories are ‘Modified comparative negligence’ and ‘Pure comparative negligence’.

Modified comparative negligence – Here a plaintiff is able to claim compensation if they were only 50% or less responsible for the accident. Some states require that the plaintiff is less than 50% responsible for their accident.

Pure comparative negligence – Here a plaintiff can receive damages regardless of how much they were at fault.

The Assumption of Risk

In some cases, a defendant will argue that the plaintiff ‘Assumed the risk’ when they partook in an activity that they knew was dangerous. This type of defense is usually raised in lawsuits that come out of contact sports where players and spectators are occasionally injured. One important consideration here is to determine whether the injury that has been suffered is closely related to the risk that people were aware of when taking part in or watching the activity.
If you were taking part in a game of baseball for example and you were hit by a baseball bat, the defendant could argue that you assumed the risk when you took part in the game.
If you were watching the baseball game and you got hit by a sign that fell down, the defendant could argue that you assumed the risk because a falling sign is not a danger that’s characteristic of the baseball game.

When the Lawsuit Does not State a Claim

A defendant may argue that your complaint fails to determine one or more important element of the case. In other words, one important element is the ‘Causation’ which is the link between the defendants actions and the injuries that the plaintiff sustained. This means the defendant’s actions led to/caused the plaintiffs injuries.

If the lawsuit does not clearly illustrate a case for causation – the lawsuit does not show that the defendant’s actions caused the injuries, the defendant may not be found liable for the injuries.

The Lawsuit was Filed too Late

Another defense that the defendant could argue is that the plaintiff’s statute of limitations has run. The statute of limitations involves a law that specifies the amount of time that the plaintiff can wait before they can file their lawsuit. This typically varies between states and it can also depend on the type of lawsuit that is being filed. In many states, the statute of limitations is one year from the date of the injury.

If the statute of limitations is used as an ‘Absolute bar’ defense it could mean that the judge will rule that the plaintiff did not comply with the deadline (One year from the date of the injury for example), meaning their lawsuit could be dismissed entirely.

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Failing to Mitigate Damages

When a plaintiff has failed to mitigate damages it means that any compensation that the defendant has to pay should be reduced. This is because the plaintiff’s action or inaction has made the damages a lot worse. This could be the case even if the defendant has been found completely at fault for the injuries. This means that the plaintiff should have taken reasonable steps to ensure that harm was minimized. For example, if the plaintiff was working on a construction site and had failed to wear proper protective equipment, it could be deemed that they did not mitigate or minimize harm. Therefore the plaintiff may not receive as much compensation that they would have received otherwise. The court could also reduce the amount of compensation they receive based on the amount of injuries that could have been avoided.

Knowing what a defendant may argue during a lawsuit could help plaintiffs understand when they need to file their claim, if they assumed risk, or if they failed to mitigate damages. If a plaintiff can successfully prove that the defendant’s arguments are incorrect, they may receive the claim they deserve.

If you currently are suffering from a personal injury and are unable to read ‘Defenses in Personal Injury Cases’ please watch our Injury Pedia video so you can gain the Personal Injury Information and Answers you are seeking.

2018-12-12T09:03:30+00:00By : b6njx | Category : Uncategorized