Common Defenses in a Personal Injury Lawsuit

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A church bus recently crashed, killing three and injuring 19 passengers in Indianapolis. Most were teenagers on their way back from a Michigan camp, but the three who perished were the youth pastor, his 8-month-pregnant wife and a chaperone who was a mother of five. The bus driver said the brakes failed as he tried making a left turn, causing it to turn over and come to a stop on its side on a concrete barrier.

While no amount of money can compensate for tragedies such as this, the legal system attempts to reduce the loss victims and their families suffer after these accidents. Larger vehicles, such as buses and trucks, pose a greater risk of serious, life-altering injuries. In a personal injury lawsuit, the defendant’s insurance company usually tries everything possible to minimize the amount of damages it has to pay. It is important to understand common defenses to personal injury cases if you were injured and wish to seek compensation.

Comparative and contributory negligence

States’ negligence standards look at each party’s degree of fault to assess damages. Comparative negligence is the standard used by most states and calculates damages according to your proportion of fault. There categories of comparative negligence are:

  • Pure comparative negligence — You can receive damages as long as you are not 100 percent at fault, and the amount you receive is reduced by your percentage of fault.
  • Modified comparative negligence — You can receive damages as long as you are not more than a certain amount at fault, which ranges from 49 percent to 51 percent, and the amount you receive is reduced by your percentage of fault.

Contributory negligence is a much stricter standard, and only four states follow this rule. According to contributory negligence, if you were even 1 percent at fault for the accident, you cannot receive any damages.

Assumption of risk

Another defense may be that you assumed the risk of your injury by participating in a dangerous activity, such as a certain sport. Other defenses you may encounter include that you failed to prove that the accident directly caused your injury or didn’t try to mitigate your damages by seeking immediate medical attention.