Defenses Against Your Personal Injury Claim

If you're filing a personal injury claim or lawsuit, here are the defenses most likely to be employed by the insurance company or defense attorney.

If someone else played a role in causing your injury, it only seems fair that that person or business should be legally responsible for any losses you suffer because of the injury. But the law allows even at-fault individuals to avoid liability in part or even entirely, when certain defenses are applied.

This article addresses the common personal injury defenses that insurance companies and at-fault individuals will try to employ in order to lessen their liability -- or avoid it all together.

You Knew the Danger

Under the legal doctrine of "assumption of risk", an injured party is said to have "assumed" the risk of injury from a particular activity by either 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 party cannot 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 his 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 has not done anything to make it more dangerous than normal, the plaintiff usually cannot recover damages.

It's Your Fault Too

In some states, if an injured person is also partly to blame for his or her injuries, the defendant may raise a defense known as "comparative negligence." Under this doctrine, a plaintiff's own share of the blame for his or her injury does not relieve the defendant entirely of liability. Rather, the plaintiff's own negligence serves to reduce the amount of damages that he or she may ultimately recover. At a trial, the fact-finder (usually a jury) is asked to assign a percentage of fault to each parties' actions. The plaintiff's damage award is then reduced by that percentage. For instance, a jury may award $100,000.00 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 $80,000.00.

At the settlement negotiation stage, insurance companies do not usually speak in terms of percentages of fault. Rather, the settlement offer will take into account, and reflect, any negligence on the part of the plaintiff. In responding to such a settlement offer, the partly responsible plaintiff must take his or her own negligence into consideration when determining whether an offer is reasonable.

In those states that recognize the defense of "contributory negligence," a plaintiff's own negligence (even if minor) will bar him or her from recovering any damages at all.

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.

You Were Already Hurt

Another commonly-employed defense tactic is to minimize the amount of damages payable to the plaintiff by alleging and proving that his or her injuries were not 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. It is for this reason that defense attorneys and insurance companies request medical records from the injured person for several years leading up to 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.

However, simply because the plaintiff may have had a pre-existing injury does not mean that that the defendant is not required to compensate the plaintiff for aggravating or worsening that injury. The plaintiff can provide medical evidence that the injury from the accident has required additional treatment that would not have been required but for the accident.

Contractual Defenses: Waivers, Releases and Limitations on Liability

Defendants in personal injury cases may also seek to limit their liability by presenting evidence that the plaintiff contracted away their right to sue the defendant.

Unfortunately, sometimes the injured person is not even aware that he or she has signed away this right because the release of liability may be hidden in the terms of a contract. For instance, many equipment rental contracts (such as for skis) 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 held to be valid in many states, but the plaintiff may be able to void the release under certain circumstances.

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