Personal Injury Cases and Legal Defenses
When people file personal injury lawsuits, the other side usually doesn’t concede right away. In many situations, defendants in personal injury lawsuits will try to use one or more legal defenses as a way of avoiding having to pay a settlement or legal judgment. Even though the defenses a defendant might use will differ from case to case, there are several legal defenses that are common in personal injury cases.
Comparative, Modified Comparative, and Contributory Negligence
The idea of negligence lies at the heart of a large majority of personal injury lawsuits. The law assumes that in our day-to-day lives we owe a duty to one another to act in a reasonable and prudent manner. We cannot simply go about our lives heedless of the results of the careless activity. If we act in a careless or negligent manner, and our actions result in someone else getting harmed, we can reasonably assume that we will be held responsible for our actions. More here
Yet, what happens if a personal injury results from two or more people being negligent, including the person who got hurt? What if your personal injury case arose not just because someone else was careless, but because you acted in an unreasonable way? Can you still sue someone if you were partially at fault for what happened?
These are the types of questions that people raise when they assert contributory or comparative negligence claims. In states that have comparative negligence systems, an injured person will only be able to recover damages for which he or she was not responsible. So, for example, if you are injured, you might not be able to recover all of the medical damages you suffered if you are partially at fault. In some states, plaintiffs can recover regardless of how at fault they were, while other states require that the plaintiff be no more than 50%, or 51%, at fault.
Beyond comparative negligence, there is a similar idea known as contributory negligence. People who live in contributory negligence states can only recover damages if the injuries they suffer were entirely the fault of someone else. So, if you were even slightly at fault, you cannot recover damages from your negligence lawsuit.
While comparative and contributory negligence defenses are quite common, some situations can involve the defense of “assumption of risk.” With an assumption of risk defense, the defendant claims that the plaintiff’s injuries only arose because the plaintiff willingly engaged in risky activity. For example, if you choose to participate in a boxing match and sue because you suffered an injury because of it, the defendant would likely raise an assumption of risk defense.
Of course, determining what legal defenses are possible in any given situation is not something most people are capable of doing. To better understand legal defense, what you can do about them, and how they might affect your case, you have to speak to an attorney. If you have any questions regarding your personal injury case, contact a personal injury attorney as soon as possible.