Common Defenses to a Personal Injury Claim
- September 29, 2014
- Personal Injury
If you are filing a personal injury claim, chances are that the defendant will attempt to put forth an argument either to rebut the claim or to limit their liability. The requirements to assemble a successful injury claim can be complicated and the defenses are designed with the specific intention of taking your case apart. For the average citizen, making a case that will stand-up to legal scrutiny and preventing the possibility of a successful defense is very unlikely. That is why it is important to hire a skilled personal injury attorney in Dallas.
While we have discussed the concept of comparative negligence in others posts, this is an important concept for personal injury law and it is also one of the most common defenses. The idea of a comparative negligence defense is that the plaintiff holds some responsibility for the injury. If the defense can show that the claimant owns some portion of the blame, they can reduce the amount of compensation that will be awarded and, in some situations, it can make it so the plaintiff is unable to receive compensation at all. For more information about comparative negligence, read our previous blog posting that covers the topic in greater detail.
Assumption of Risk
With an assumption of risk defense, it is basically being put forth that the plaintiff, by engaging in a certain activity, willfully exposed himself or herself to the risk of injury. The idea is that certain activities hold an obvious level of risk and that the individual knew these risks from the outset. The key to this defense is showing that the injury directly relates to the risks that are inherent to the activity.
A good way to illustrate these points is with the example of an injury that occurs while playing basketball at the local gym. Certain injuries are common to the sport of basketball, if you should suffer something like a broken ankle through the regular course of a game, the gym would not be responsible because you assumed the risk of that type of injury by playing the game. However, if you can show that a condition existed that made the game unsafe in a way that goes beyond the norm, then the injury was not caused by an assumed risk.
Failure to State a Claim
If the defense is raised that you failed to state a claim, they are essentially saying that you failed to meet one or more of the elements that are required for a personal injury claim. To prove that you have the right to compensation from a defendant, you have to show that they had a duty to care for your safety, that they breached that duty and that the breach of duty was the cause of the injuries that you suffered. If the defense can successfully argue that you did not meet one of these burdens, then the case will be dismissed.
No insurance company or large business is going to take a claim of negligence lying down. They will use any defense that they can to have your claim dismissed or to at least limit their level of liability. Not only does the plaintiff have to make a solid case against the responsible parties, but in many ways, the personal injury attorney will need to defend the claim against the possible strategies of the defense.