Defenses In Personal Injury Cases

Don't be surprised if the insurance company or the person you're suing uses these arguments to try limiting (or even barring) your personal injury claim.

Updated by , J.D. University of San Francisco School of Law
Updated 4/02/2024

If you're thinking about making a personal injury claim after any kind of accident, you'll need to understand what kinds of arguments and defense strategies you can anticipate from the other side. And, if you're on the other side, and someone is claiming that you're at fault for causing their injuries, you'll want to understand some defense strategies that can help you avoid injury liability.

In this article, we'll focus on legal defenses and arguments that an injured person might face in response to an injury-related insurance claim or personal injury lawsuit, including a few that relate to the plaintiff's potential fault for the underlying accident, and the concept of "assumption of the risk."

Was the Injured Person Also At Fault for the Accident?

When someone files an injury-related insurance claim or personal injury lawsuit, one of the first arguments usually heard from the other side is that the injured person was at fault for the accident (in whole or in part).

If there's evidence that your own negligence played a part in the accident that caused your injuries, the compensation you receive will probably be affected. Timing-wise:

  • this could happen early on, if the insurance adjuster can show that you bear some amount of blame for your accident, and you're trying to settle your personal injury case out of court, or
  • it could happen in court (though it's very rare for personal injury cases to make it all the way to trial), after the judge or jury reaches a finding on liability (fault for the accident) and figures out how much compensation ("damages") you should receive.

The degree to which an injury settlement or court award could be affected by your share of fault—or the chance that your recovery will be barred altogether—depends on whether your state follows a "comparative negligence" or "contributory negligence" rule.

What Is Comparative Negligence In a Personal Injury Case?

Most states follow a "comparative negligence" rule in personal injury cases, calculating damages under a formula that looks at each party's degree of fault for the accident.

For example, say you're in a car accident and you're found to be 25 percent at fault, while the other driver is deemed to be 75 percent at fault. Maybe this was the conclusion found in a police report filed after the accident, or a stipulation that was agreed upon after the insurance companies for both sides investigated the accident.

In this situation, under comparative negligence, if you file an insurance claim or lawsuit for your car accident injuries and vehicle damage, any compensation you receive will likely be reduced by 25 percent (your share of fault for the accident). So if your total damages add up to $20,000, you'll only receive $15,000.

What's the Difference Between "Pure" and "Modified" Comparative Negligence?

The vast majority of states follow the comparative negligence rule in personal injury cases. But these states also fall into one of two camps:

  • those that use a "pure comparative negligence" rule, and
  • those that go with "modified comparative negligence."

The difference between the two is that in the "pure" system, an injured plaintiff can recover damages regardless of their share of fault (meaning a plaintiff who is 90 percent liable can still technically recover 10 percent of their damages from other at-fault parties), while in a "modified" comparative negligence system, an injured plaintiff can recover compensation only if they are no more than 50 percent at fault (or less than 50 percent at fault in some states).

What Is Contributory Negligence In a Personal Injury Case?

While comparative negligence can reduce an injured person's compensation when they're partially at fault for the underlying accident, the concept of contributory negligence isn't as forgiving.

In these five states that follow contributory negligence, claimants who share any degree of fault for their own accident or injury are usually barred from getting any compensation in court:

  • Alabama
  • District of Columbia
  • Maryland
  • North Carolina, and
  • Virginia.

So, for example, if you live in one of these state and you're in a car accident that was only 5 percent your fault and 95 the other driver's, you can't recover any compensation for your damages through a personal injury lawsuit. And even if you're only making a car insurance claim in a contributory negligence state, you can expect the insurance company's settlement offer to be very low if it looks like you share any car accident fault. After all, insurance companies resolve claims with an eye toward what's likely to happen if a case makes it to court.

When Does "Assumption of Risk" Apply to a Personal Injury Case?

In some personal injury cases, a defendant faced with a lawsuit will argue that the injured person "assumed the risk" of getting injured by willfully participating in an activity that the injured person knew (or should have known) was dangerous. This kind of defense is raised most often in lawsuits that stem from contact sports (like football and basketball) and spectator injuries (when a foul ball hits a spectator in the stands at a baseball game, for example).

The "Assumed" Risk Must Relate to the Activity

One key aspect of a successful "assumption of the risk" defense is that the harm suffered must relate closely to the risk that's inherent in the activity. So if you're playing a game of organized basketball at the local gym, you've probably assumed the risk of getting elbowed inadvertently—since that's a common occurrence in a game of basketball. A lawsuit over any resulting injuries probably wouldn't fly, because you assumed the risk of injury by deciding to play in the game.

On the other hand, if you got injured playing basketball when the backboard broke and fell on you, the defendant (the gym owner, for example) couldn't rightly argue that you assumed the risk of such a thing happening, because a falling backboard isn't a danger that's inherent in the game of basketball.

Personal Injury Defenses Related to "Causation"

An insurance company or lawsuit defendant might also argue that, while it's clear that the claimant was injured, some other event, circumstance, or conduct was the actual cause of the injury. This kind of legal argument can get complex, but it boils down to this: A successful personal injury case requires proof that:

  • the person you're trying to hold responsible for your injuries was negligent, and
  • that negligence was the cause of your injuries.

If something else entirely—either occurring before or after the defendant's negligent act—may have acted as the actual cause of your injuries, the defendant might have a valid "causation"-based defense. See some examples and learn more about "intervening" and "superseding" causes in a personal injury case.

The "Preexisting Injury" Argument In a Personal Injury Case

Another argument that an injured person is likely to hear is that they have a preexisting condition (injury or illness) that partially or completely explains the medical issues they're currently claiming. Learn more about how a preexisting condition can affect a personal injury case.

The Statute of Limitations Defense to a Personal Injury Case

In every state, a law called a "statute of limitations" sets a strict time limit on the right to file a lawsuit. Different deadlines apply to different kinds of cases, but if you miss the filing deadline set by the law that applies to your particular case, you'll almost certainly lose the right to file your lawsuit.

In the context of a personal injury case, missing the statute of limitations deadline means you'll no longer have the chance to ask a court for a legal remedy for the harm you've suffered, and the person you're trying to sue will be off the legal hook. Learn more about the statute of limitations in a personal injury case.

Next Steps In an Injury Claim

If you're making an injury claim and the other side has raised any of the defenses we've discussed here, things can get complicated pretty quickly. It might make sense to discuss your situation with an experienced legal professional. Learn more about getting help from a personal injury lawyer.

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