Common Defenses in Personal Injury Cases
When filing a personal injury claim in Georgia, gaps in the legal process may arise that could potentially threaten your rights to fair compensation 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' legal 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 when you file a claim for damages.
What are personal injury defenses?
Common defense strategies in personal injury cases are arguments that relate to two things:
- What the plaintiff did in connection to the workplace injuries- how they were in involved in the accident
- What the plaintiff didn't do after the injury-like obtain proper medical attention (medical records can be accessed through a subpoena) or file their injury claim on time. ("Statute 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 an accident claim. If the limitation is an applicable statute, you may not file a claim)
If you don't obtain proper medical care or file your personal injury claim on time, this could indicate to the responsible party that you were over-exaggerating your injuries.
Defendants may be found partially at fault for an auto accident injury. The defense may claim that they owed no legal duty of care to you.
When a plaintiff files a lawsuit for personal injury, one of the common defense tactics usually heard from the defense lawyers is that the plaintiff him or herself was at fault (or partial fault) for the outcome of the accident or injuries, or had a pre-existing condition. This is to shield the defendant from complete liability. If the insurance adjuster can present that you hold some of the blame for your injury, this could change your case.
For example, in the context of auto collisions, 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, the accident scene showed that Bob neglected to turn on his head lights before the crash and may be found partially at fault in the police report for the car accident in question.
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, especially if there is an accident report listing you as the one at fault. The length of time it takes to determine financial compensation depends on whether your lawsuit is settled before going to trial and a settlement agreement is drawn up by trial lawyers, 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 fair compensation (the plaintiff's “damages” awarded.)
Each state determines how fault will be calculated differently. The level of danger associated with the incident will also be taken into account.
The damages that you are granted in your injury-related insurance claim 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 reckless actions where you sustained the alleged injuries, a court could rule that you “assumed the risk of injury” and may deny your claim for compensation based on that assumption of risk. 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 you would not be awarded fair compensation. This is true for product liability cases as well.
The most common defenses to negligence include:
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. This is similar to the comparative fault defense. 
Let's say you are in a motor vehicle collision, and your percentage of fault is found to be 25%, and the other driver is deemed 75% at fault. That is the comparative negligence percentage. In this case, if you file a lawsuit for your injuries and property damage, any compensation you receive from the insurance company will likely be reduced by 25% (your degree of fault for the accident.) So if your total damages and medical bills add up to $20,000, you will only receive $15,000 as fair compensation.
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/Pre-existing medical conditions- 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 through medical history and used against the plaintiff to argue he or she had already been injured before the accident and should not receive compensation for pain. The defendant's attorney may attempt to subpoena all of the plaintiff's medical records to look for similar complaints of injury or other injury-related insurance claims. You will receive medical treatment for your injuries.
Our personal injury lawyers at our Georgia Law Firm are exceptionally experienced in defenses that may arise in a personal injury claim so that you can receive a fair compensation victory. Our qualified attorneys are knowledgeable and experienced in protecting your personal injury claim from legal loopholes that may compromise your rights or diminish your case. Take legal action today, contact Atlanta's best personal injury attorneys for help filing a legal claim.
You don't have to battle against insurance companies alone. Get in touch with one of our personal injury lawyers today!
