How to Protect Your Personal Injury Claim from Defenses
Common Defenses in Personal Injury Cases
When filing a personal injury claim in Georgia legal gaps may arise that could potentially threaten your rights or even cause you to lose your case altogether.
Once a claim is made, naturally the defendant's attorney will evaluate the nature of the complaint and bring forth proven legal defenses to mitigate or eliminate their clients’ responsibility. It’s important to understand what kinds of arguments (defenses) you can safely anticipate from the other side, so you can better be prepared.
What are personal injury defenses?
Typically, defenses in personal injury cases are arguments that relate to two things:
- What the plaintiff did in connection to the accident -how they were in involved in the accident
- What the plaintiff didn’t do after the injury-like obtain proper medical attention or file their injury claim on time. ("Statue of Limitations-" is the correct time line established in which you can legally file a personal injury lawsuit, the state of Georgia has a two-year period, after that time as surpassed you no longer have legal grounds to file a claim.)
Defendants may be found partially at fault for an injury accident
When a plaintiff files a lawsuit for personal injury, one of the negations usually heard from the defendant’s side is that the plaintiff him or herself was at fault (or partial fault) for the outcome of the accident or injuries.
For example, Bob’s car was hit by a passing truck that ran a traffic light, and as a result, Bob suffered severe injuries and significant damage to his vehicle. However; Bob neglected to turn on his head lights before the crash and may be found partially at fault for the car accident.
If you’ve filed a lawsuit but are partial to blame for the accident that caused your injuries, the compensation you receive will probably be affected. The length of time it takes to determine financial compensation depends whether your lawsuit is settled before going to trial and a settlement agreement is drawn up, or it could be the result of a lengthy trial. If your injury claim goes to trial, the jury reaches a finding of liability (by appointing fault between or among parties) and proper compensation (the plaintiff’s “damages” awarded.)
Each state determines how fault will be calculated
The damages that you are granted in your injury lawsuit depends on the degree of fault found and could even go to extremes of barring your recovery altogether. The extent of fault calculated depends on whether your state follows a “comparative negligence” or “contributory negligence” standard.
Furthermore, if you willingly participated in a dangerous activity and ended up getting hurt, a court could rule that you “assumed the risk-” and may deny your claim for compensation. E.g. you sustained injuries while playing a game of basketball; however, you are acutely aware that basketball is a physical contact sport and while participating chances of injuries are a risk to take. Therefore, your personal injury case would most likely be dismissed, and no compensation would be awarded.
Here are the most common defenses in personal injury cases:
Comparative Negligence: States that follow the “comparative negligence” rule in personal injury cases, calculating damages under a formula that look at each party’s degree of fault for the accident.
Let’s say you are in a car accident and you're found to be 25% at fault, and the other driver is deemed 75% at fault. 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 will only receive $15,000.
The majority of states follow the comparative negligence principles when compensation is tallied in a personal injury claim. But these states typically fall into one of two associations’:
- Pure comparative negligence-An injured party can recover damages regardless of their share of fault, meaning a plaintiff who is 90% at fault can still recover damages for 10% from the other at-fault parties.
- Modified comparative negligence-An injured party can only recover damages if they are 50% or less at fault. (The State of Georgia follows this principle)
Contributory Negligence- In states that follow contributory negligence, the principle is not as forgiving. Victims that share any degree of fault for an accident or injury are usually prohibited from getting any compensation via a personal injury suit. Likewise, if you live in a contributory negligence state, and you are found 5% at fault for your accident, and the other party is found 95% at fault, you would not be able to collect any financial compensation for your injuries.
Pre-existing injuries- This is also called “causation”-meaning were the injuries suffered by the plaintiff the responsibility of the defendant? Many times, similar pre-existing injuries will be discovered and used against the plaintiff to argue he or she had already been injured in the accident. The defendant’s attorney may attempt to subpoena all of the plaintiff’s medical records to look for similar complaints of injury.
Our lawyers at our Georgia Law Firm are exceptionally experienced in defenses that may arise in a personal injury claim. Our attorneys are knowledgeable and experienced in protecting your personal injury claim from legal loopholes that may compromise your rights or diminish your case. Contact Atlanta's best personal injury lawyers for help.