Common Personal Injury Defenses
Because personal injury cases are among the most common in the United States, there are many documented examples of defense strategies that have been proven to be effective. In a personal injury case, a defendant must prove that either his actions did not directly result in the injury of the plaintiff and/or that the plaintiff shares responsibility for the circumstances surrounding the occurrence that lead to the injury. In addition, the defense may have grounds to argue that the plaintiff did not adhere to the regulations of time and protocol set forth by the court and that, therefore, the case cannot proceed.
What Was the Plaintiff’s Role in the Accident?
In developing the defense strategy for his or her client, the defendant’s attorney will examine what role the plaintiff had in the incident in question that resulted in the injury, loss or death. If the defense is able to prove that the plaintiff was more responsible than the defendant for the accident, the case may be dismissed.
The concept of comparative negligence is common in most states. Comparative negligence takes into account the responsibility that both parties had in the accident and calculates the damages to be awarded to the plaintiff based on the percentage of responsibility. If, for example, the plaintiff was 30% responsible for a car accident that resulted in an injury and the defendant was 70% responsible, any damages that the court may award to the plaintiff would be reduced by 30% to compensate for the responsibility that the plaintiff had in the incident.
Only a few states take another tack and rule in personal injury cases on the basis of contributory negligence. Under this rigid statute, if the plaintiff has any responsibility whatsoever for the accident in question, he or she is barred completely from being awarded any damages in the case.
Risk is another factor argued in many personal injury cases. The defense may argue that the plaintiff engaged in behavior that was known to be risky. This so-called “assumption of risk” defense asserts that the plaintiff, not the defendant, is responsible for the consequence of his or her actions.