Being part of a personal injury case is not fun – especially when you’re the victim in all of this. It’s traumatizing. You have to go through the physical recovery process if you’ve suffered any injuries, but also mental recovery. Not only that, but now you have to fight to get compensation from the person or institution responsible for your injury.
However, what can you do when the other party uses defense strategies against you to invalidate your case? In some situations, the guilty individual or institution will not be too happy about paying you considerate amounts of money – even if they’re at fault for the incident. They will try to make it seem like you are exaggerating your symptoms or will try to invalidate your proof with theirs.
Knowing the common defenses used in a personal injury case can help you and your lawyer fight and prove your innocence. Here are some tactics that the defense team might use:
Assumption of Risk
The assumption of risk defense will involve the defense team saying that the plaintiff knew the risk of injury yet decided to still engage in the particular activity that resulted in the injury. As such, the plaintiff should not receive compensation.
So, the defendants might try to claim that you knew the danger you were exposing yourself to yet didn’t stop engaging in it. When the assumption of risk applies, not only is the defendant partially responsible for the injury but so is the defendant. Recovering damages will not be possible in this case.
One example of a situation where the assumption of risk applies is when someone gets injured while engaging in sports. They might break their arm or leg or suffer from a different injury depending on the sport.
In some cases, the defendants may also use contractual defenses, which could include releases and limitations on liability, as well as waivers. So, a defendant will try to prove that the plaintiff essentially gave up their right to sue them.
What’s worse in these scenarios is that the plaintiff doesn’t always know that they contracted away their right to sue the other party. Many contracts will have certain parts quite hidden. For example, you may rent sports equipment, and the contract will state how the renter acknowledges that they are renting the equipment “as is” and that if it is defective, they will not sue the company.
Luckily, in some cases, you may void the release, but it’s not always possible. This is why you have to be careful when signing a contract.
Injuries Existed Before the Incident
Defendants sometimes try to claim that the injuries were already there before the accident even took place. This is done in order to minimize the number of damages they are responsible for, so they wouldn’t have to pay as much in terms of compensation.
As such, the sued party will try to prove how the injuries sustained by the plaintiff were already there before the incident took place. Medical records and physician testimonies will be used for evidence for this defense strategy.
This is why a lot of defense lawyers will ask the plaintiff for medical records not only from when the accident occurred but also from before the accident. They dig through everything to find even the smallest thing that might be used to “prove” that you are exaggerating and that you were already hurt before this incident even took place.
Although this may be the case sometimes, defendants may worsen an injury during the accident. Therefore, it doesn’t mean that the defendants will not have to offer the victim compensation.
To fight this type of defense, medical records can be brought by the plaintiff to show that the injury resulting from this incident led to additional treatment being required, a treatment that would not have been necessary if the accident didn’t occur.
You Contributed to the Injury
Perhaps one of the most common defenses for personal injury is contributory negligence. The defendants will try to demonstrate that the plaintiff played a role in their own injury, making them partially or fully responsible for the damages.
There are a few states that are contributory negligence jurisdictions. Therefore, if the plaintiff is discovered to have been partially at fault for the injury and damages, they will not be able to get compensation from the defendant. In some jurisdictions, they will only be unable to recover any damage if they have more than half of the responsibility for the incident.
Statute of Limitations
Everyone who files a personal injury claim or intends to file one should know that there is a statute of limitations they can use as guidance. You have to file the lawsuit before a specific time.
Each state is different, so you must research the laws in your state. In Illinois, for instance, you must file the personal injury within two years from the time of the injury. Similarly, in Colorado, the statute of limitations is two years from the day you were injured. If you want to sue someone for personal injury, you should look into Denver personal injury lawyers before the time runs out.
In some situations, you may be unaware of any injury until years later. This could occur in defective drug cases or product liability ones. However, the defendant will still do their best to prove that you were aware of your injuries or damage before the deadline.
Personal injury cases are challenging for both parties involved, but the defendants will sometimes try different strategies to make sure they do not pay you for any damages. They can make different claims – for example, that you didn’t file on time, that you are at fault for the injury, that you knew of the risk or that you signed a release.
If you have proof that supports your claim, you can easily win your personal injury case despite these defenses. Work with your attorney to find the best strategy.