Personal Injury Defense

An Overview of Personal Injury Defense

A person injured by another's negligence may file a lawsuit against the party at fault to pursue compensation. The person filing the lawsuit is the plaintiff. The party being sued is the defendant. Defendants in personal injury lawsuits can hire a personal injury defense attorney to represent them.

Personal injury cases are frequently based on the legal theory of negligence. In such cases, plaintiffs need to prove that the defendant was negligent. This involves showing that:

  • The defendant owed the plaintiff a duty
  • The defendant failed to uphold that duty
  • The failure to uphold the duty caused the injury
  • The plaintiff was harmed or injured as a result of this failure

A personal injury defense lawyer is often tasked with disproving one of these elements to have the case dismissed or succeed at trial. The lawyer may attempt to get a case dismissed on procedural grounds, like failure to file a lawsuit within the statute of limitations.

Common Defenses

In personal injury cases, there are some common defenses that a defense lawyer often employs. These include:

  • Mitigation of damages: The plaintiff failed to take steps to lessen the damages that were sustained. An example may be when a plaintiff fails to seek medical attention.
  • Assumption of risk: The plaintiff voluntarily participated in an activity that they knew was potentially dangerous. An example may be a sporting activity known to have a risk of injury.
  • Statute of limitations: The plaintiff failed to file the lawsuit within the statute of limitations (time limit to bring the case).
  • Pre-existing injury: The plaintiff's injury existed before the event in question and was thus not the fault of the defendant.
  • Waivers and releases: The plaintiff signed a waiver or release stating the defendant is not liable for any harm sustained.

Contributory and Comparative Negligence

In a few jurisdictions, if plaintiffs were in any way responsible for their injuries, they are completely barred from recovering damages. This is called pure contributory negligence. For example, a plaintiff who is found to be even only 1 percent at fault for the accident while the defendant was 99 percent at fault could not recover any damages.

This is rather harsh, so many states have comparative negligence laws instead. These laws allow plaintiffs to prevail in a lawsuit, but the damages will be reduced based on the percentage of responsibility they had causing their injury. For example, take a plaintiff that was 10 percent at fault for an accident that resulted in $100,000 in damages. The maximum amount of compensation would be $90,000. In some states, those who are 50 percent or more responsible for their injuries are barred from collecting damages, while in others it has to be greater than 50 percent.

Settlements

Sometimes it makes more sense for a plaintiff to settle out of court than to go to trial. Publicized litigation can affect a business's reputation, for example. To reach a settlement, the plaintiff and defendant, with their respective attorneys, negotiate for the defendant to pay the plaintiff a specific amount. A settlement is often much less costly for the defendant as attorney fees may be much less than a verdict.

Insurance Coverage

In some situations, the defendant's insurance policy will pay for a defense attorney. This may be the case when car insurance or homeowners insurance is involved. In such cases, the insurance company will hire the lawyer, so contacting the carrier is often a good first step after an accident or injury.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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