You need to be able to anticipate the defenses of the other side if you are thinking of filing a personal injuries claim. If you are on the opposite side (as a defendant), and someone claims that you caused their injuries, it is important to know some defense strategies that could help you avoid liability.
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This article will focus on defenses for plaintiffs who may be at fault for the underlying accident (comparative or contributory negligence) as well as how “assumption risk” might apply to personal injury cases.
Did the Plaintiff also have to be at fault for the accident?
A plaintiff filing a personal injury lawsuit will often claim that the defendant is at fault for the accident and resulting injuries.
The amount of compensation you receive for injuries you sustained will be affected if you have filed a lawsuit and are partly to blame. This could occur early if you settle your personal injuries case out of court. Or it could take place at the end of a long trial where the jury comes to a verdict on liability (by apportioning blame between or among the parties) or proper compensation (the plaintiff’s “damages”) award.
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In personal injury cases, most states use a “comparative negligence” rule. This calculates damages based on each party’s share of fault.
Let’s say, for example, that you are in an accident with a car and are 25% responsible, but the other driver is 75%. This conclusion may have been reached in a police report that was filed after an accident, or it could be a stipulation that was reached after both the insurance companies investigated the accident. If you file a lawsuit to recover your damages for injuries or property damage, the amount of compensation you receive will likely be reduced 25% depending on how much fault you have. If your total damages exceed $20,000, you will only get $15,000.
Comparative negligence laws may reduce the victim’s compensation if they are partially to blame (in most cases), but contributory negligence is not as forgiving. Contributory negligence laws in states prohibit victims of accidents or injuries from obtaining compensation through personal injury lawsuits. If you are in a state that follows contributory negligence principles and your car accident was only 5% of your fault, and the other driver is 95%, you cannot recover compensation through a personal injury suit.
Only five jurisdictions apply the contributory negligence rule. These are the states of Alabama and Maryland, North Carolina and Virginia as well as the District of Columbia. Personal injury plaintiffs in these jurisdictions could face severe consequences if they are found to be at fault for the underlying accident.
Assumption Of Risk
A defendant in a personal injury case will often argue that the victim “accepted the risk” that they would be hurt if they participate in an activity that was unsafe. This defense is most common in cases involving contact sports, paintball, and spectator injuries.
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A successful defense of “assumption” is based on the fact that the harm must be directly related to the inherent risk of the activity. If you are playing organized basketball at your local gym, it is likely that you have assumed the risk of being elbowed accidentally. This is a common occurrence during a game. Because you took on the injury risk by participating in the game, a lawsuit against the gym owner over the injuries won’t be filed. However, if you were injured while playing basketball and the backboard fell on you, the gym owner (for example) wouldn’t be able to argue that you took the risk of it happening. A falling backboard isn’t an inherent danger in basketball.