Defending the Personal Injury Case

0d440c9If you find yourself on the wrong end of a personal injury lawsuit, you’ll need to know what kinds of defenses (legal strategies) you can raise.  If you’re the injured party, you should examine these defenses to prepare yourself to counter them.

There is an underlying defense in every personal injury case involving negligence. The plaintiff must prove that all of the elements of negligence: Duty, Breach, Causation, and Harm,  are present, and if the plaintiff fails to prove any of these elements, the case is lost.  

You’ll need to examine the circumstances to determine whether you owe a duty to the plaintiff, whether you breached that duty, whether that breach caused the plaintiff’s injuries, and whether the injuries are legally compensable.

Take for example, a case in which you are being sued for your failure to assist assist someone who was drowning.  All you needed to do was to throw him a life preserver, but you stood by and did nothing, and the person died as a result.  Are you legally responsible?  The answer depends on whether you had a legal duty to assist him.  More than likely, you have no such duty.

If negligence is established, defenses will rest upon what the plaintiff may have done to contribute to the accident, and what the plaintiff failed to do afterwards.

Comparative & Contributory Negligence

One of the most common defenses is comparative negligence, in which the defendant argues that the plaintiff was fully or partially at fault.  The concept of comparative negligence is more fully discussed here.  Some states adhere to a standard called “contributory negligence,” which bars plaintiffs who share any degree of fault for an accident or injury from getting any compensation.   Only a small handful of states have contributory negligence laws — including Alabama, Maryland, North Carolina, and Virginia. Personal injury plaintiffs in those states may face an uphill climb if fault is at issue in the case.


Assumption of Risk

Assumption of risk is a legal doctrine that bars recovery for injuries incurred by someone who willfully participated in an activity that he or she knew was dangerous. This kind of defense is often raised in cases involving injuries stemming from dangerous sports such as football, skiing, and hockey.   To successfully assert an assumption of risk defense, you must demonstrate that the harm suffered is closely related to the risk inherent in the activity in which the plaintiff participated.

For example, if the plaintiff suffered whiplash when someone hit him from behind on a bumper car ride, the defendant would have a strong assumption of risk defense- an injury like that is common and foreseeable in an activity that involves vehicles slamming into each other.  However, if the plaintiff suffered a head injury because the roof of the bumper car ride collapsed, an assumption of risk defense would likely fail, because no one anticipates that happening when they get on a bumper car ride.