According to the National Safety Council, 55.4 million people sought medical attention in the United States in 2020 for non-fatal injuries. Personal injury law allows an injured person to file a personal injury claim seeking compensation for the harm they have suffered to their body, mind or emotions as the result of someone else’s negligence.
There are a variety of everyday situations which can lead to many common personal injury cases, such as car accidents, medical malpractice and workplace injuries. If you have been injured due to the fault of another party you could be entitled to compensation for your pain and suffering.
Seeking legal advice from a personal injury lawyer is the first step in seeing whether you have a strong case, and many law firms such as the Law Office of John W. Redmann offer free consultations where you can discuss the merits of your case at no cost. In this article, we will look at some of the possible defenses which a plaintiff might encounter when filing a personal injury claim.
This is a common defense used in personal injury cases and asserts that the plaintiff is partly to blame for their own injuries. This defense is based on the legal theory that the injuries sustained by the plaintiff were not due to the defendant’s negligence alone but also as a result of the plaintiff’s failure to exercise due care.
In a state that follows contributory negligence, if it can be shown that the plaintiff acted negligently, and thereby contributed to their injuries they will be precluded from recovering any compensation. This will be the case regardless of the degree of negligence that can be attributed to them.
Some states do not follow the ‘all or nothing’ rule of contributory negligence and instead allow the defense of comparative negligence to be raised. Under this doctrine, a court will still award a plaintiff compensation for their injuries, however, the amount of the damages will be reduced based on the degree of their negligence in contributing to their injuries.
For instance, if it is found that the defendant was 80% at fault and the plaintiff was 20% at fault, the plaintiff’s award will be reduced by 20%. Depending on the state you live in, you may or may not receive compensation if you were partially to blame for your injuries.
Assumption of Risk in a Personal Injury Claim
A defendant may argue that the injured party knew the dangers involved with a certain activity and assumed the risk of getting injured through their participation. This defense is commonly raised where the nature of the activity is inherently dangerous such as extreme sports activities or any other instances where the risks are obvious. To successfully invoke this defense, the defendant must demonstrate that the injury sustained was closely related to the risks inherent in that activity and that:
- The plaintiff must have been aware of the risk involved
- The plaintiff freely and voluntarily accepted the risk
If the defendant is successful with their defense, the plaintiff is barred from recovering compensation for their injuries.
By being aware of some of the possible strategies the defense can raise, you can better prepare your case and improve your chances of recovering damages for your injury.