Common Personal Injury Defense Tactics

Personal injury defense tactics aim to negate allegations of fault for causing the injury. In court and in settlement, a defendant in a personal injury case must show that he was not responsible for creating the accident during which the other party was injured or that he shares responsibility with the injured party or third parties.

Assumption of the Risk

The legal doctrine of “assuming the risk” states that the injured party, by behaving in a certain way, assumes the risk of injury. In these types of cases, the injured party is thereby prevented from recovering because he is considered responsible for his injury. This means that the injured party would have no course of action against the defendant or any other party. Defendants often try to use the assumption of the risk doctrine to show that while they might be somewhat responsible for the injury, the true blame rests on the injured party’s shoulders.

Comparative Negligence

If an injured party is also responsible for his injuries or for making his injuries worse than they needed to be, a defendant will try to show that the injured party was also negligent. Comparative negligence laws permit the reduction of compensation awarded to an injured party by the amount of their liability for the injury. The percentages of fault attributable to each party are decided by the fact finder of the case, either the judge or jury. In mediation specific percentages are not identified, but the fact that the injured party is responsible for his injures will reduce the amount of the settlement.

Contributory Negligence

Similar to comparative negligence, contributory negligence alleges that the injured party was involved or is somehow responsible for his injuries. However, in states utilizing these laws, if the party is found to indeed be responsible, he is entirely prevented from obtaining compensation.

Pre-Existing Injuries

One of the most common tactics used by defendants is showing that the injured party’s injuries are not related to the accident. This can be shown by demonstrating that the injuries existed prior to the accident, meaning that they were pre-existing. In this circumstance, the only compensation the injured party would be entitled to would be for making the injury worse and treatment of the condition. This tactic is often employed using medical records and physician testimony about the injured party’s medical health prior to the accident.

Obtaining Legal Advice

If you are involved in a personal injury lawsuit and want to know the potential defenses that can arise or be used against such a claim, seek legal advice. A lawyer will review the defenses available in your area and how they might be used in your case.

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