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Personal Injury Defense Cases

When a person’s negligence results in an injury to another, personal injury lawsuits can arise. This may happen because of a car fall, slip and accident, medical malpractice, premises liability or other situation. It is important for plaintiffs to be aware of possible defenses that the defendant may lodge so that they can better prepare for them.

Contributory Negligence

One primary source of a defense is the plaintiff’s role in the accident. When a plaintiff’s actions contributed to the accident and he or she was partially at fault, contributory negligence principles can apply. In states that use this system, victims who are at fault for any portion of the accident or injury are completely barred from seeking compensation from the defendant who may have been primarily responsible. If a person was even 1 percent at fault for the accident, his or her claim may be completely denied.

Not all states use contributory negligence principles. Only four states use this type of system. These states are Alabama, Maryland, North Carolina and Virginia. The District of Columbia also uses contributory negligence principles.

Comparative Negligence

When the defendant and the plaintiff both contributed to the injuries, comparative negligence is a way of apportioning fault between the parties. If a party is involved in a car accident and he or she is 30 percent at fault and the defendant was 70 percent at fault for the accident, the victim’s recovery is usually reduced by the 30 percent that he or she was at fault. If a person’s damages resulted in $100,000, the recovery would be reduced by 30 percent for a maximum award of $70,000. Most states use this standard instead of contributory negligence principles. There are variations between the states with some using the pure comparative negligence model and others using the system of modified comparative negligence. Some states use the pure comparative negligence, which allows recovery if there is any portion of the accident that was caused by someone else. In this system, the victim who was primarily responsible for the accident can still recover. In the modified comparative negligence systems, the victim can be equally or less than equally responsible for the accident in order to recover.

The biggest difference between contributory negligence and comparative negligence systems is that contributory negligence may completely bar recovery while comparative negligence simply reduces it.

Statute of Limitations

Another possible defense is that the plaintiff’s claim is time-barred. Every state has a deadline by which a claim must be filed or it will be barred from being brought. The statute of limitations varies from each state. Additionally, they type of claim being brought may also impact the statute of limitations. A medical malpractice lawsuit or a lawsuit based on an injury received from a defective product may have a shorter statute of limitations than a case involving a different type of personal injury.

Failure to Mitigate Damages

A personal injury victim generally has a duty to mitigate his or her damages. A defense of this nature seeks to reduce the amount of damages that the victim is alleging. This defense is based on the idea that the victim’s actions led to a greater degree of damages than he or she should have sustained. If the defendant caused the victim’s injuries but the victim failed to follow the doctor’s instructions, the award of damages may be reduced. This defense may also arise when the victim fails to seek medical attention after an accident, leading to a greater degree of damages. In these cases, the court can reduce the amount of damages to the amount that would have reasonably been sustained without the victim’s failure to mitigate.

Assumption of Risk

Another common defense in a personal injury case is that the victim assumed the risk of being injured by voluntarily participating in an activity where the injury could be reasonably anticipated. If a person was injured while playing football, basketball or another sport, this defense may arise. To succeed with this type of defense, the defendant must usually show that the injury that the victim sustained was closely related to the risk that is inherent in the particular activity. People involved in sports may anticipate getting injured by an elbow but not by being punched.

Legal Assistance

A personal injury lawyer may be able to help identify other possible defenses that may arise and how to battle against them.

Personal injury lawsuits can arise when a person’s negligence results in an injury to another. Contributory negligence principles can apply when a plaintiff’s actions contributed to the accident and he or she was partially at fault. Comparative negligence is a way of apportioning fault between the parties when the defendant and the plaintiff both contributed to the injuries. There are variations between the states with some using the pure comparative negligence model and others using the system of modified comparative negligence. In the modified comparative negligence systems, the victim can be equally or less than equally responsible for the accident in order to recover.