Personal Injury Defenses

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Personal Injury Defenses

Defenses in personal injury cases may lessen or get rid of the defendant’s liability in the case. So, if you are facing a personal injury lawsuit, it is imperative to know what defenses are available an.

Typically, defenses relate to whether the plaintiff took a role in causing his own injuries and whether the plaintiff did anything after the injury to reduce the severity of the injuries. Below are some of the common defenses used in a personal injury case.

Comparative or Contributory Negligence

Almost all defendants in personal injury cases will argue that they were not completely at fault for your injuries. They will attempt to switch the blame to you. Depending on the state the injury took place, the defendant will argue that you were either comparatively or contributory negligent. The difference between the two types of negligence is the amount of negligence the plaintiff had.

In comparative negligence states, the court will allow the plaintiff to recover damages even if they were partially at fault. The court will prorate the amount of negligent that the defendant is responsible for. For example, if the total injury for a motorcycle accident is $10,000 and the plaintiff was 20 percent responsible for his own injuries, then the plaintiff will only be able to recover $8,000 from the defendant.

In contributory negligence states, the court will not award damages to the plaintiff if the plaintiff was at fault for contributing his own injuries. This holds true even if the plaintiff was found to be 1 percent at fault.

Additionally, some states may have modified versions of contributory and comparative negligence.

Assumption of Risk

The assumption of risk defense relies on the plaintiff knowing what type of potential injuries they may be getting into, and that the plaintiff is agreeing to the potential injury. For example, if the plaintiff agrees to play tackle football with the defendant, the defendant follows all the rules, and the defendant accidentally breaks the plaintiff’s arm, then the plaintiff assumed the risk of the game and cannot sue the defendant. However, it may be a different story if the defendant did not play by the rules and broke the plaintiff’s arm by doing something else that is atypical of tackle football.

Plaintiff Did Not State a Claim

Another defense is that the plaintiff failed to state a claim on the pleading. In other words, the pleading is missing one or more essential elements of the claim to prove that the defendant is at fault. For example, to prove negligence, there are six elements to the claim. If the plaintiff fails to state one of the elements, then the claim fails and the plaintiff does not have a lawsuit against the defendant.

Plaintiff Missed the Statute of Limitations

For all lawsuits, you cannot file the suit at any given time. You are limited to a period of time from when the injury to about 1 to 2 years later. If you missed that time period, then you may not sue the defendant.

No Mitigation of Damages

A requirement for personal injury cases is that the plaintiff must attempt to mitigate or to reduce their damages. If they failed to do so and the injury worsens, then they may lose their case.

Consulting a Personal Injury Lawyer

If you want to file a personal injury suit against someone, please consult a personal injury lawyer so he could help you strategize and draft a pleading that addresses the above defenses.

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Last Modified: 07-30-2015 11:16 AM PDT

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