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Sued for Personal Injury

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What Are the Elements of a Personal Injury Claim?

A personal injury claim against you asserts that you owed the injured party a duty of care, but breached that duty when you caused injury to him or her. Personal injury claims are made under a negligence theory.

How Can I Defend a Personal Injury Claim?

To defend a personal injury claim, you will try to show that you did not meet one of the requirements of the plaintiff’s claim. Thus, you might show one or more of the following:

  • You had no duty of care
  • There was no breach
  • There was no injury, or if there was injury, that the injury was not caused by a breach of duty

For example, perhaps you own a house that sits adjacent to a public pathway, and a tree from your yard grew into the pathway causing a bicyclist to crash and sustain bodily injury. If the bicyclist tries to sue you they will have to show that:

  • You have a duty to keep your tree out of the pathway
  • You breached that duty by letting your tree grow into the pathway
  • The breach of duty caused bicyclist to sustain injury

To defend yourself in the scenario above, you would try to show either that you did not have a duty to keep you tree off the path, that not trimming it was not a breach, or the the bicyclist’s injury was not a result of any duty to keep the tree trimmed.

Who Else Could Be at Fault? 

You should also consider the possibility that the plaintiff or a third party may also be liable for the damage. Even if you are partially at fault, it will be important to identify who else was at fault so that the liability can be properly proportioned under a comparative negligence theory.

For example, in the scenario above, even if it was your duty to keep your tree off of the path, the bicyclist might be partially at fault if he was talking on his cell phone and not paying attention to where he was going, or a third person might be partially at fault if their dog ran in front the bicyclist causing him to run into your overgrown tree. In either case, your liability would be reduced by the liability of others.

Alternatively, some states follow a contributory negligence scheme, where any fault of the plaintiff bars his or claim.

Should I Consult an Attorney?

Defending a personal injury claim is a serious and complicated undertaking as personal injury law covers a broad range of situations and it varies widely from state to state. A?@personal injury lawyerwill understand the law that applies to your situation, and will use his or her experience to represent your interests and protect you against a costly judgment against you.

Photo of page author Gabrielle Hollingsworth

, LegalMatch Legal Writer and Attorney at Law

Last Modified: 05-28-2014 03:42 PM PDT

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