Common Defenses to a Personal Injury Claim

If someone else's negligence causes you some kind of injury, it only makes sense that they should compensate you for your medical bills and related losses. But the law allows even at-fault individuals to avoid liability in part or even entirely, when certain defenses are successfully argued and applied.

Let's look at the most common defenses that insurance companies and at-fault individuals will try to employ in order to lessen their liability in a personal injury claim—or avoid responsibility altogether.

You "Assumed the Risk" of Injury

Under the legal doctrine of “assumption of risk”, an injured person is said to have “assumed” the risk of injury from a particular activity by:

• behaving in a certain way, or
• because of the nature of the activity itself.

If the defense of assumption of the risk applies, the injured person can't recover "damages" (compensation), even if the defendant was also to blame for the injury.

The assumption of the risk doctrine typically applies in situations where a person is injured while engaging in a sporting activity. For instance, a person who breaks their leg in a skiing accident often has no recourse against the ski resort operator because skiing is considered a risky activity where injury can be expected.

So, where the activity is inherently dangerous, and the defendant hasn't done anything to make it more dangerous than normal, the plaintiff usually cannot recover damages.

There are typically two versions of this defense.

"Express" Assumption of Risk

"Express assumption of the risk" applies when a plaintiff has acknowledged, before the injury, that they're aware of the risk of an activity they're about to engage in.

Typically, the acknowledgment is in some kind of written contract, although any kind of legally binding agreement will work. The most common example is a waiver of liability signed before participating in a dangerous activity (like skiing, in the example above).

A big issue here is whether the plaintiff agreed to assume the risk of the particular harm that occurred. Another common question is whether the occurrence was so negligent (i.e. grossly negligent) or intentional that the harm exceeded the scope of the plaintiff’s agreement.

"Implied" Assumption of Risk

"Implied" assumption of risk applies when, although no agreement has been made, a plaintiff knows that there is a risk involved in participating in some activity, and they do it anyway. For example, courts have held that a plaintiff participating in a "pick-up" sports game impliedly assumes the risk of injury from the kind of contact that is typical to the sport. But in this situation a plaintiff doesn't assume the risk of injury from overly dangerous or aggressive behavior that isn't part of the game.

Your "Comparative" Negligence Can Reduce Your Compensation

In some states, if an injured person is also partly to blame for their injuries, the defendant may raise a defense known as “comparative negligence.” Under this doctrine, a plaintiff’s own share of the blame for their injury doesn't relieve the defendant entirely of liability. Rather, the plaintiff’s own negligence serves to reduce the amount of damages that they can recover.

In the rare event that an injury case goes all the way to trial, a jury will be asked to assign a percentage of fault to each parties’ actions. The plaintiff’s damages award is then reduced by that percentage. For instance, a jury may award $100,000 to a plaintiff and conclude that the defendant was 80% responsible and the plaintiff 20% responsible. The damage award would then be reduced by 20%, leaving plaintiff with a recovery of $80,000.

At the settlement negotiation stage, insurance companies don't usually speak in terms of percentages of fault. But a settlement offer will take all this into account, and reflect any negligence on the part of the injured person.

"Contributory" Negligence Will Likely Doom Your Injury Claim

In those states that recognize the defense of “contributory negligence,” a plaintiff’s own negligence (even if minor) will bar any kind of recovery.

Contributory negligence is similar to the doctrine of assumption of the risk and in some states is even referred to as “voluntary assumption of the risk.” The difference between the two doctrines is that assumption of the risk assumes that the defendant had no duty of care towards the plaintiff by virtue of the inherently dangerous nature of the activity. In contrast, under the doctrine of contributory negligence, the defendant owes a duty of care toward the plaintiff, but the plaintiff’s own actions negate the possibility of recovering damages from any other at-fault party.

What If the Defendant Says You Have a Pre-Existing Injury?

Another commonly-employed defense tactic is to argue that the claimant's injuries weren't actually a result of the accident. This is typically done by demonstrating that the plaintiff’s alleged injuries existed well before the accident. Such “pre-existing” conditions are then used to limit the defendant’s overall liability to the plaintiff.

In order to prove that the plaintiff’s injuries were pre-existing, the defendant will rely on medical records and testimony from physicians. This is why defense attorneys and insurance companies request medical records from the injured person, going back several years before the accident. The defendant’s representatives will comb through the medical records, looking for any evidence that the injured party previously sought treatment for the same injury.

But the fact that the plaintiff may have had a pre-existing injury doesn't automatically get the defendant off the hook for aggravating or worsening that injury. Learn more about how a preexisting injury can affect a claim.

Contractual Defenses to Injury Claims: Waivers, Releases and Limitations on Liability

Defendants in personal injury cases may also seek to limit their liability by presenting evidence that the plaintiff signed away their right to sue the defendant, as part of a contract or other agreement.

Sometimes an injured person isn't even aware that they've signed away their rights, because a limitation of liability may be hidden in the terms of a contract. For instance, many equipment rental contracts (such as ski equipment rental agreements) contain language stating that the renter acknowledges that the skis are being rented “as is” and that they will not hold the ski shop liable if the skis are defective. These types of releases have been upheld in many states, but the plaintiff may be able to void the release under certain circumstances.

Learn more about waivers, disclaimers, and injury liability.

You've Missed the Deadline for Filing a Personal Injury Lawsuit

This defense is based on the "statute of limitations," which is a law that sets a strictly-enforced deadline on your right to file a personal injury lawsuit. In the context of an injury case, if you've missed the statute of limitations deadline, you've lost your right to hold the at-fault party responsible for your losses—no matter how badly you were hurt, or how clear the other party's liability might be.

Get Help With Your Injury Claim

If the at-fault person or business is trying to avoid responsibility for your injury by raising any of the defenses we've covered here, it might be time to make sure your case is in experienced hands. A personal injury lawyer will have the skills and the resources to anticipate and refute any defense the other side might try to argue, and will fight for your best interests until you get a fair result. Learn more about finding the right injury lawyer for you and your case.