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Defenses in a Personal Injury Claim

If you have been injured in an accident caused by someone else’s negligence, whether it was a single individual, more than one person or a specific company or government agency, you may decide that it is worth claiming compensation from them. In most cases, you will find that you are much more likely to settle a claim successfully if you use an experienced personal injury attorney. There are many reasons for this, one of them being their experience with dealing with what are typical ways that defendants try to avoid being made to pay your claim. Some of these typical defenses are described below.

The Plaintiff was the Person who was to Blame or Partly to Blame

You will not win a personal injury claim unless it can be determined exactly who was to blame for an accident and why you, as the plaintiff, believe that they acted negligently. In many accident situations, there may be a gray area in which the degree of blame is in dispute. Typically, the defendant will try and claim that the accident was your fault and not theirs, or at least you were partly to blame. Often, this sort of defense can be refuted if you have sufficient clear evidence to back up your claim or if you also have witnesses to the accident who can confirm your side of the story.

Prior Warnings May Prevent You From Suing

The defendant may claim that you were warned about a hazard beforehand, yet you continued to carry out an activity regardless. For example, if you use a restroom even though a sign saying that the floor has been cleaned and may be slippery you may not have a case against the owner of the restroom if you slip over and injure yourself.

Wondering what the defenses are in a personal injury claim?

The defendant may claim that you carried out an activity that was inherently unsafe or carried risk. For example, if you go hiking in a national forest trail and injure yourself after a fall, you may find it hard to blame the federal government agency in charge of national forests as it may be considered that hiking involved taking a risk. However, if you use a bridge on a trail that collapses and you become injured, you may be able to claim that maintenance had not been carried out and the agency was negligent, especially if there was no warning notice.

Were You Partly to Blame?

It is common for a defendant to claim that you were at least partly to blame for an accident. This is where the help from an experienced personal injury attorney can really make a difference. The validity of any evidence you can get and witness statements are crucial.

Note that in some states, where a law that takes into account partial blame is concerned, you may still be able to settle a percentage of the full cost of your injury if the state allows what is called “comparative negligence.” Usually, if you have chosen to use an attorney, the claim will have been adjusted to take this into account.

In some states, the law may be stricter and you may not be able to make any claim at all if the court decides that you had even a small amount of fault. This is called contributory negligence and you will find that insurers will use this to their advantage to help their client if named as defendant.

Time of Injury

One other line of defense used by defendants in a personal injury case is to claim that your injuries (or health problem) were pre-existing. Lawyers for the defendant may request medical records and any other information which may show that your injury was not caused by the accident you had or was at least partly caused by a pre-existing condition. Your attorney will usually ask you to obtain medical records for several years before your accident to prevent this sort of defense from being attempted.

How a Personal Injury Lawyer Can Help

In serious personal injury cases, it is vital that you are able to present a viable case. It is hard to do this without professional legal help, especially if the amount claimed is substantial r there are other reasons why the defendant(s) wish to avoid settling your claim. A personal injury lawyer will know the sorts of defenses that defendants in these sorts of cases often attempt and will be able to prepare your case so that the defenses are rejected or at least minimized in your favor.

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