Common defenses in personal injury cases

A personal injury lawsuit is a legal claim by one person that another person caused him or her to suffer physical or mental harm. Such cases usually arise from car accidents, defects in a home or property, or intentional efforts to hurt someone. Defenses to such lawsuits will vary from state to state, and according to the particular circumstances. However, there are some defenses that should be considered in almost every case. Below is a list of some possible defenses:

1. Statute of Limitations A statute of limitation is a law which requires a lawsuit be brought within a certain period of time from when the cause of the injury claim occurred. Such statutes for injury claims usually will be for two to four years, but this will depend on the exact claims made and the jurisdiction in which the suit is brought. Failing to file a lawsuit within the applicable statute’s given period is an absolute bar to the case, meaning that no matter how clear the liability of the defendant is, the matter is barred from going forward.

2. Failure to state a claim Any claim for personal injury will include “elements”, or specific matters which must be alleged and proven before the lawsuit can succeed. For instance, all negligence matters require that the defendant owe the plaintiff some sort of “duty” to either do something, or refrain from doing something,and that the plaintiff failed to meet that duty. In a complaint, the plaintiff must allege that the defendant failed to meet the requisite duty. No evidence needs to be presented at the beginning, but at least the bare factual allegations must be presented in the complaint so that the defendant can understand what he or she is being accused of doing. Failure to state the claim sufficiently can be a basis for the complaint being thrown out.

3. Plaintiff’s negligence In many cases, the fault for a plaintiff’s injuries is not entirely the fault of the defendant. It is possible that the plaintiff was at least partially to blame. For instance, a defendant may have been speeding, which was a cause of the accident, but the plaintiff may have failed to use a turn signal, which contributed to the collision. In most states, a judge or jury is required to asses the percentage of fault to be ascribed to the plaintiff and defendant. Once that is done, there can be several outcomes, depending on the jurisdiction.

A very few states maintain “contributory negligence” provisions, which state that if the plaintiff is only responsible for the accident to a small degree, the plaintiff still gets no compensation. So if the plaintiff's failure to use a turn signal in the example above is judged to account for 10% of the cause of the accident, the plaintiff would get nothing. Most states, though have “comparative negligence” rules. In these situations, a plaintiff found to be 10% negligent would still get compensation, but the final award would be reduced by 10%. In some jurisdictions, this comparative rule applies no matter how negligent the plaintiff was, as long as the percentage was less than 100%, so that a plaintiff could be 95% responsible for an accident, but still recover 5% of the proved damages due to the defendant’s negligence. In many states, though, if the plaintiff’s fault exceeds 50%, then the plaintiff receives no compensation, even if it is determined that the defendant was 49% at fault.

4. Failure to mitigate damages Although not technically a defense, the concept of mitigation can be used by a defendant to resist a claim for damages. Plaintiffs have a requirement to mitigate, or lessen, the extent of the damages they suffer, to the extent it is possible. So, if a plaintiff suffers a bad cut from an accident but fails to get medical help, and the cut becomes infected causing a more serious and expensive injury, it can be argued that the plaintiff failed to mitigate the harm by not getting medical help promptly. This concept may reduce the final award to the plaintiff, negating any responsibility for the plaintiff to pay any of the bills associated with the increased damage done from the failure to mitigate.

There are many other potential defense to a personal injury lawsuit and a claimant should review all of them with an experienced lawyer. However, those defenses listed above are likely to be considered by a defense attorney in almost every case.

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