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Personal Injury Law: Common Defenses and How to Overcome Them

The defense lawyers and insurance adjusters will raise defenses. Depending on the lawyer’s skills, it is possible for the at-fault party to avoid legal responsibility. This is why you need the help of a good personal injury law firm. They know about the common defenses and can counter them effectively.

How is Fault Determined in Personal Injury Law?

Fault in personal injury law differs from state to state, with each state determining its own way of calculation. The damages awarded vary from full recovery to no compensation at all, depending on the degree of fault. Most often, states will apply either the “comparative negligence” or “contributory negligence” standards in determining fault.

Additionally, if the court determines that you willingly engaged in the risk and got injured, it may rule that you “assumed the risk,” which would mean that your case would be dismissed. For instance, injuries sustained during a game of basketball, where the risk of injury is great, can result in the denial of compensation.

Common Defenses Personal Injury Claim Defense Attorneys Use in Most Cases

Here are some of the most common defenses to personal injury claims used by the majority of attorneys.

Contributory Negligence

Contributory negligence is one of the fundamental defenses in personal injury cases, whereby the defendant seeks to transfer blame to the plaintiff. This defense alleges that the plaintiff bears partial or total responsibility for their injuries.

For instance, in a car accident, if the plaintiff failed to wear a seatbelt although the defendant rear-ended their vehicle, then the defense would indicate that it may have been a mitigating factor if the plaintiff had been wearing the seatbelt.

In jurisdictions such as DC, Maryland, and Virginia, which follow contributory negligence laws, the bar falls on plaintiffs from recovery if they are found to be even partially at fault. However, the District of Columbia applies comparative fault in accidents involving pedestrians and bicyclists, offering clear consideration of fault.

Comparative Negligence

Comparative negligence is quite common in most states’ personal injury cases due to its ability to offer two distinct approaches:

  • Pure Comparative Negligence

In California, for example, the “pure” rule of comparative negligence applies, in which an injured party may recover, even if his or her negligence is greater than the negligence of the defendant. The court assesses the injury suffered by the plaintiff and adjusts the recovery based on the contributions of the parties causing it.

  • Modified Comparative Negligence

In this type, like in many states, an injured plaintiff can seek compensation if they bear less than 50% responsibility for the accident. But if the plaintiff shares more than half of the blame, they are barred from recovery.

Pre-Existing Injuries

Insurance companies usually claim that injuries existed before the incident. This relieves them of liability. However, a good expert attorney can dispute this by arguing that the defendant’s negligence aggravated the pre-existing condition, giving entitlement for compensation towards the worsened injury.

Assumption of Risk

The defense will argue that the plaintiff, while aware of the risks involved in the incident, willingly assumed them, thus forfeiting any right to be compensated. This situation might occur when the actions of the plaintiff unmistakably reveal a recognition of potential harm.

For instance, in product liability or industrial accident cases, where warnings have been ignored, while the person went ahead with an activity even though it was dangerous, the assumption of risk defense may be introduced.

Final Thoughts

It is not uncommon for personal injury defense lawyers to argue that an individual was at fault, and, therefore, should not receive compensation. All you need to do is consider the above factors to help you overcome them and get the compensation you deserve.