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What are the Main Defenses in Personal Injury Cases?

— June 21, 2022

The amount of damages may be lowered if the defendant caused the victim’s injuries but the victim failed to follow the doctor’s advice.

If you’ve suffered an injury because of the negligence of someone else, it only makes sense that the person responsible should be legally liable for all the losses you suffer as a result of the injury. But the laws are tricky to navigate and even people who are at-fault for an accident may avoid some or all the liability of an accident, given that particular defenses have been applied. 

In the following article, we’ll dive deep into the most common defenses used in personal injury cases. This will include defenses used by insurance companies and defense teams of at-fault individuals to avoid or minimize their liability. 

Was the Plaintiff Also at Fault for the Accident?

Normally, the first argument used by defendants is that they are not liable because the plaintiff hasn’t properly proven their injury.

The easiest defense in this situation is producing ample evidence to prove the injury such as medical treatment records, lost wages, pain and suffering, among other damages. 

Negligence Laws

Comparative Negligence

Comparative negligence is a legal doctrine which allows an injured party to recover damages from more than one person or entity.

The doctrine of comparative negligence is based on the idea that two or more parties are responsible for a plaintiff’s injury and that each defendant should be held liable in proportion to the plaintiff’s share of responsibility for the injury.

This doctrine, followed in states such as Alaska and California, can be used as a defense in criminal law and tort law cases by defendants who were partly responsible for an injury, loss, or damage but were not fully responsible.

The amount of damages awarded to the plaintiff is reduced by his or her degree of fault, which is determined by what percentage of total responsibility they have for causing the accident.

Contributory Negligence

Contributory negligence is a legal term that refers to the plaintiff’s responsibility for causing or contributing to their own injury. This is typically a defense raised by defendants in personal injury cases where the plaintiff’s own negligence contributed to their injuries.

This doctrine is followed in jurisdictions such as Alabama, Maryland, North Carolina, Virginia, and Washington, D.C.

Contributory negligence does not apply to intentional torts, such as assault and battery, or to situations where the defendant acted with “wanton and willful disregard” for the safety of others. The doctrine also does not apply when there is a “special relationship” between the plaintiff and defendant, such as employer-employee.

Assumption of Risk

Assumption of risk is a doctrine that is applied by the law to determine who is responsible for an injury or loss. The doctrine of assumption of risk, also known as the “assumption of the risk doctrine”, holds that when one person knows about a danger and voluntarily enters into it, he or she has assumed the risk.

What this means is that if a person has assumed responsibility for a risk by knowing the dangers associated with the actions they’re taking, they can’t legally claim damages against another person for any injuries they’ve sustained.

Statute of Limitations

Black and white analog egg timer; image by Marcelo Leal, via
Image by Marcelo Leal, via

A statute of limitations is a law that sets the maximum time that an individual has to file a lawsuit. The statute of limitations for personal injury cases varies from state to state.

The majority of states including Arizona, California, and Illinois have a two-year statute of limitations for personal injury cases, but some states have longer or shorter statutes. For example, in states such as Maryland and New York, the statute of limitations for personal injury cases is three years.

In most states, the clock begins running on the date when an injury occurs and not on the date when it was discovered or should have been discovered.

Failure to Mitigate Damages

In most cases, a personal injury victim owes it to themselves to try to limit the extent of his or her losses. Failure to mitigate damages is a defense that aims to reduce the amount of damages claimed by the victim. This argument is founded on the premise that the victim’s activities caused him or her to suffer more damages than they should have. 

The amount of damages may be lowered if the defendant caused the victim’s injuries but the victim failed to follow the doctor’s advice. This argument may also apply if the victim fails to seek medical attention following an accident, resulting in larger damages. In these situations, the court can decrease the amount of damages to the amount that could have been reasonably sustained if the accident had not occurred.

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