Orlando Personal Injury Attorney Tim David discusses the most common defenses you may face with your personal injury claim
Pursuing a personal injury claim is not an easy process. You can expect that the “other side” will try everything possible to avoid paying damages. This means using common defenses in order to discredit the victim or claim that the defendant was not legally responsible for the injuries.
Common Defenses to Liability Claims
There are several common defenses used by those who have caused injuries to explain why they should not be held responsible. In many cases, these defenses are argued to show that the at-fault party has a legal reason for being immune from judgment.
The “You Knew The Danger” Defense
Also known as “assumption of risk,” this defense states that the person who was injured knew and accepted the risk of certain activities. For example, skydiving companies often have participants sign a waiver stating in advance that they know that the activity carries certain inherent risks and will not hold the company liable in the event of an accident.
The assumption of risk doctrine is usually a valid one when the defendant has done nothing to increase the danger of the activity or render the victim less safe. However, this defense may not be valid if the defendant failed to take elementary safety precautions to protect the victim or enhanced the danger of the activity in some way.
The “Waiver” Defense
The idea of a victim waiving his or her right to sue is inherent in many successful defense strategies. When victims have signed a waiver, it usually indicates to the jury that the person had at least some idea that the activity might be dangerous.
While signing a waiver does not bar a victim automatically from collecting compensation, it can be a stumbling block to successful settlement negotations.
The “Comparative Negligence” Defense
Sometimes a defendant does not deny liability but claims that the victim shares some of the blame. In some states, a comparative negligence defense is possible. This means that, even if the victim does win the lawsuit, he or she may not collect a full amount of damages. These verdicts are usually rendered on a percentage basis; for example, the jury may decide that the victim is 20 percent liable which means that the total award will be reduced by 20 percent.
In some cases, any negligence on the part of the defendant may render him or her unable to collect damages. Some states utilize an “all-or-nothing” stance when awarding damages to a victim, which is known as the “contributory negligence” doctrine.
The “You Were Already Injured” Defense
One of the basic ideas in a negligence lawsuit is that the injury was caused by the actions of the defendant. If the defendant can show that the victim was already injured, he or she may be able to avoid a judgment. Pre-existing conditions can muddy the waters surrounding a lawsuit to the point that the jury may have a hard time making the connection between the accident and the victim’s injuries.
Those who have been injured in an accident should never assume that they are unable to collect compensation, especially when they are told so by a defense attorney or insurance company. Instead, the victim should rely on the advice of an experienced personal injury attorney who can assess his or her case and offer advice on strategies for collecting compensation. Contact David & Philpot, P.L. today at 800.360.7015 for a free, no obligation consultation about your case.