If you are being sued in civil court relating to a car accident, you do have several defenses available to you, even if you are at fault. The defenses may also be considered even in the absence of court case, where the case is settled instead of proceeding to trial. Some of these defenses include:

  • Comparative negligence
  • Contributory negligence
  • Failure to mitigate
  • No injury
  • Statute of limitations (precludes filing suit because the deadline to do so has passed)

What is Comparative Negligence?

Comparative negligence is an affirmative defense to a negligence lawsuit. Not every state allows a comparative negligence defense. Under comparative negligence theory, the plaintiff contributes in some way to their own injuries.

For instance, you are speeding to work on a busy road or talking on the phone while driving. A pedestrian crosses the street without looking both ways and without using the crosswalk. You hit the pedestrian. While you are at fault for hitting the pedestrian, the pedestrian was also at fault for crossing when and where he should not have crossed. The pedestrian is partially liable under comparative negligence.

Under the comparative negligence theory, the plaintiff can still sue the defendant for negligence. However, the defendant can raise comparative negligence as an affirmative defense. If proven, then the plaintiff’s own negligence will result in a reduction of his damages. For example, if the jury believes a jaywalking pedestrian is half at fault, then his damages will be reduced by 50%.

States may have laws that are either for “pure” comparative negligence, or “modified” comparative negligence. With pure comparative negligence, a plaintiff can recover damages, no matter their amount of fault in the accident. In a modified comparative negligence jurisdiction, the plaintiff may not be able to recover damages if their fault in the accident is determined to exceed 50%.

What is Contributory Negligence?

Contributory negligence is similar to comparative negligence. Under contributory negligence, the plaintiff pedestrian is still negligent for jaywalking and is therefore partially liable. However, in the rare few states that allow contributory negligence defenses, the plaintiff is completely barred from bringing the lawsuit. This is because under the contributory negligence theory, if the accident victim contributed in any small amount to the negligence that caused the accident, they cannot recover damages for their injuries.

Virginia, Washington, DC, Maryland, North Carolina, and Alabama are the only states that allow pure contributory negligence defenses.

What are Some Examples of Negligent Behavior that May Contribute to an Accident with an Automobile?

  • Distracted driving, such as texting while driving;
  • Speeding;
  • Driving within the speed limit, but too fast for the road, weather, or traffic conditions;
  • Driving while intoxicated;
  • Driving fatigued;
  • Failure to signal;
  • Following too closely/tailgating;
  • Running a red light or stop sign;
  • Failure to yield;
  • Unsafe lane changes;
  • Making sudden or unexpected movements as a pedestrian (depending on the circumstances);
  • Not obeying traffic signals as a pedestrian;
  • Riding with a driver that plaintiff knows is drunk, reckless, or sleepy;
  • Riding in a car that plaintiff knows is defective for example, riding in a car that is without lights or has a flat tire);
  • Interfering with the driver's operation of the car; and
  • Unsafe passing.

Did the Auto Accident Cause an Injury?

In order for a plaintiff to have standing to sue for negligence in a car accident case, he must have suffered an injury. Thus one available defense is that the plaintiff has suffered no injury from the car accident.

For instance, you and the plaintiff get into a very minor fender-bender with minimal damage. You both get out of your cars after the collision to assess the situation. The plaintiff says he barely felt you hit him and that he feels perfectly fine.

However, six months later, he is seeing a doctor for severe spinal stenosis. He then sues you, claiming the accident you caused led to him suffering severe back injuries that resulted in not only exorbitant medical expenses but the loss of his job as well. If you can prove the plaintiff is lying about his injury, you will not be liable for the damages he is asking for.

What is the Duty to Mitigate Damages?

Most jurisdictions hold that an accident victim has the duty to not make their injuries worse, also known as the duty to mitigate. Plaintiffs in injury cases who have purposefully exacerbated their injuries, or failed to seek treatment, may be barred from recovering damages, or may have their damages reduced.

This would also include seeking treatment but then not following the required treatment. For example, if the physician states that a severely obese patient should lose weight so as to not aggravate a minor leg injury, but the patient does not and the injury worses. The auto accident cannot be considered as the reason why the leg condition worsened, as the treatment included losing weight.

Do I Need a Lawyer for an Auto Accident Case?

Civil lawsuits carry steep penalties with them. You may be ordered by the jury to pay medical expenses, lost wages, pain and suffering, loss of quality of life, and punitive damages. You need a skilled and accomplished personal injury lawyer near you who can evaluate your defenses, investigate the case, negotiate a settlement, and advocate for your side in court.