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What Are Common Defenses in Personal Injury Cases?

Posted in Personal injury on October 17, 2018

As a personal injury plaintiff in West Virginia, it’s wise to prepare for potential defenses other parties may use to escape liability. Learning the most common defenses in personal injury cases can help you craft a response strategy that will limit your own liability and maximize results. Working with an experienced West Virginia accident attorney is the best way to prepare for possible defenses. In the meantime, learn about a few frequent strategies the defendant may use to combat your claim.

Comparative Negligence

West Virginia is a modified comparative negligence state. This means a plaintiff can usually still receive compensation for injuries despite the courts finding him or her comparatively at fault. In some states, even if a plaintiff was 99% at fault for an accident, he or she could still recover 1% compensation. The courts will simply reduce the plaintiff’s compensation award by an amount equivalent to the percentage of fault. In West Virginia, however, a plaintiff may only recover damages if he or she is 49% or less at fault for the accident.

The percentage of a plaintiff’s fault will depend on the arguments against the plaintiff. A common defense strategy is to allege that the plaintiff contributed to his or her own injuries through negligence. For instance, a defendant might argue that a slip-and-fall victim contributed to the incident by not paying attention. This argument could lead to the courts finding a plaintiff comparatively at fault and reducing recovery. If a defendant successfully convinces the courts that the plaintiff was 50% or more at fault, the plaintiff will automatically lose the right to recovery.

In a comparative negligence state, it’s very important to hire a lawyer to argue your own percentage of fault down. Each percentage the courts assign to you means dollars lost from your potential recovery. If a total compensation award is $100,000, for example, but a defense brings your comparative fault to 20%, you would only receive $80,000 of the award ($100,000 minus 20% of $100,000, or $20,000). Combat this common defense strategy with strong proof of the defendant’s negligence.

Assumption of Risk

Sometimes plaintiffs suffer injuries during risky activities, such as skydiving or going to a live sports game. In these cases, it’s possible for the injured party to lose his or her right to compensation because of the assumption of risk defense. Certain situations come with an assumption – either implied or explicit – that the participant could be at risk of personal injury. When a person agrees to participate in such an activity regardless of the risks, he or she may give up some legal rights.

Check your event ticket, contracts, or forms you signed prior to engaging in the activity to see if you signed away your rights to file a personal injury lawsuit. Keep in mind, however, that no company can escape liability for incidents that occur because of its negligence or that of its employees. Neglect to fulfill standards of care can expose a company or defendant to liability regardless of assumption or risk or other clauses.

Broken Rules

It’s critical to obey all rules and requirements when filing your West Virginia personal injury claim. Otherwise, the defendant could use your lack of rule-following as a liability defense. The most common broken rule that could get in the way of your recovery is the statute of limitations. You have two years from the date of the incident to file a personal injury claim in West Virginia. The defense could argue you filed your lawsuit too late, failed to state a claim, or don’t have enough evidence. Again, hiring a qualified lawyer can help you successfully fight these common defenses.