Posted on June 1, 2013 by Fast Lawsuit Team
When you file a personal injury lawsuit against someone who has caused you injury, you can’t expect the person (called the “defendant” in legal terms) to take it lying down. Since a personal injury claim can involve a lot of money, there are some ways that a defendant can answer your lawsuit. As someone who has filed a lawsuit (or the “plaintiff), it is important to anticipate the arguments that the other party will advance towards his defense.
Here are some of them:
- Comparative negligence.Comparative negligence, as a defense, states that both the plaintiff and the defendant were responsible for the accident and thus, they are also partially responsible for the damage. This means that the defendant only gets to pay a portion of the compensation amount, depending on the degree of his fault with regards to the accident. For instance, if the defendant has successfully shown that the plaintiff is 20% responsible for the accident, the defendant will only be liable for 80% of the total compensation amount. Comparative negligence as a defense may work differently on different states. There are states that follow the modified comparative negligence system, where the plaintiff should be responsible for 50% or less of the accident for him to be able to sue for compensation. There are also states that adhere to the pure comparative negligence system, where a plaintiff can sue for compensation as long as he is not completely at fault.
- Contributory negligence. Only a few states use this rule. This includes Alabama, Virginia, Maryland and North Carolina. Under the contributory negligence system, even if the injured party were only partly at fault, he cannot claim for compensation. This means that the defendant can try to show that the plaintiff was also partly at fault and is therefore barred from making personal injury claims.
- Assumption of risk. If the plaintiff knew that a certain activity or sport was risky but participated in it anyway, the defendant can try to use “Assumption of Risk” as a defense. This is usually seen in contact sports, where the injury was closely related to the risk assumed. If you tripped in the field while playing football, you don’t usually get to claim for compensation because tripping over another player may happen during such games. When you played that game, you should have known that as one of the inherent risks of the game and you knowingly assumed that risk. However, if the injury was due to your tripping over an obstruction that should have not been in the field and that the property manager should have known about and failed to act upon it, then you can file for compensation.
- Intervening Cause. In this defense, the defendant will try to show that it was another separate and independent event that actually caused the damage. This “other event” usually comes after the defendant’s act of negligence and the injury that the plaintiff suffered. The intervening cause cuts off the chain linking the defendant’s negligence directly to the accident that caused the injury. For this defense to be successful, the intervening cause should be unforeseeable. For example, if the janitor failed to wipe a spill and someone slipped on that wet section, the janitor’s actions were directly responsible for the accident. However, if the janitor forgot to set a pail of water aside and an earthquake occurred, causing the pail’s contents to spill, it could be said that the earthquake was an intervening cause and that the janitor (and the property manager) is not completely liable for the accident.
- Lack of foreseeability. Here, the event that resulted in the injuries is so unforeseeable and thus, frees the defendant from liability. For instance, if a property manager failed to have the saggy carpeting fixed and someone slipped on it. The person who slipped was otherwise okay, but his companion had a heart attack because of the event. Even though it was the property manager’s negligence that caused the slipping incident, he could not have foreseen that it would cause a heart attack.
- Failure to mitigate injury. If you were injured in an accident caused by someone else but you failed to have your injuries treated promptly, the erring party can only be liable up to the extent of the injuries he directly caused. That means that compensation for additional injuries (i.e. infections) will not be included in the compensation amount.
As you can see, filing a personal injury lawsuit is no simple matter. You will need patience, as well as the skills of an experienced personal injury lawyer to ensure that your rights are protected and that you are able to get the fair compensation that you deserve. Another way to ensure this is to get lawsuit funding.
A lawsuit settlement advance provides you with ready cash at the time when you are dealing with hospital bills on top of your family’s daily needs. This forestalls the need to settle for a lower settlement amount.
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