If you're thinking about filing a personal injury claim, you'll need to know what kinds of arguments (defenses) you can safely anticipate from the other side, so you can be prepared. And, if you are on the other side (as a defendant) and someone is claiming that you're to blame for causing their injuries, you'll want to understand some defense strategies that can help you avoid liability.
In this article, we'll focus on defenses related to the plaintiff's potential fault for the underlying accident (comparative and contributory negligence) and how "assumption of risk" might apply in a personal injury case.
When a plaintiff files a lawsuit for personal injury, one of the first arguments usually heard from the defendant's side is that the plaintiff him or herself was at fault for the accident or the resulting injuries.
If you've filed a lawsuit but are partially to blame for the accident that caused your injuries, the compensation you receive will probably be affected. Timing-wise, this could happen early on, if you settle your personal injury case out of court, or it could be the end result of a lengthy trial, where the jury reaches a finding on liability (by apportioning fault between or among the parties) and proper compensation (the plaintiff's "damages" award).
The degree to which a damages award could be affected by your fault -- or the chance that your recovery will be barred altogether -- depends on whether your state follows a "comparative negligence" or "contributory negligence" standard, which we will discuss below. Similarly, if you willingly participated in a dangerous activity and ended up getting hurt, a court or insurer might say that you "assumed the risk" of injury, and they might deny your claim for compensation.
Let's take a closer look at the defenses of comparative negligence, contributory negligence, and assumption of the risk in personal injury cases. (Get the basics on negligence and fault for an accident.)
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% at fault, while the other driver is deemed 75% at fault. Perhaps 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 case, if you file a lawsuit for your injuries and property damage, any compensation you receive will likely be reduced by 25% (your degree of fault for the accident). So if your total damages add up to $20,000, you'll only receive $15,000.
The vast majority of states follow comparative negligence principles when damage awards are tallied in personal injury cases. But these states also typically fall into one of two camps: those that use a "pure comparative negligence" system and those that go with a "modified comparative negligence" system. 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).
While comparative negligence laws can reduce a victim's compensation when they're partially at fault (in most cases), the concept of contributory negligence isn't as forgiving. In states that follow contributory negligence principles, victims who share any degree of fault for an accident or injury are usually barred from getting any compensation via a lawsuit for personal injury. So, if you live in a contributory negligence state and you're in a car accident that was only 5% your fault and 95% the fault of another driver, you can't recover any compensation for your damages through a personal injury lawsuit.
Only five jurisdictions follow the contributory negligence rule: the states of Alabama, Maryland, North Carolina, and Virginia, as well as the District of Columbia. But personal injury plaintiffs in those jurisdictions may face some pretty harsh results if they are found to bear any amount of blame for the underlying accident.
Assumption of Risk
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 was dangerous. This kind of defense is raised most often in lawsuits that stem from contact sports (like football and basketball), paintball-style games, and spectator injuries (when a foul ball hits a spectator in the stands at a baseball game, for example).
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.
For in-depth information on all the key ingredients of a successful personal injury lawsuit, get How to Win Your Personal Injury Claim, by Joseph Matthews (Nolo). And learn more about getting help from a personal injury lawyer.
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