Personal Injury Defense
When you see ads on TV and billboards, they offer legal advice for people injured in an accident. What if you are on the other side of the legal claim? If someone sues you in a personal injury claim for damages, you may need an experienced personal injury lawyer to defend you in court.
If you are being sued in civil court, the injured party suing is the plaintiff, and you are the defendant. You must be careful as the defendant, or you could be on the hook for medical expenses, property damage, and non-economic damages. Talk to a personal injury defense attorney about your legal options if you are identified as a defendant in a personal injury lawsuit – or think you might be.
How Does Personal Injury Defense Work?
A person injured by another’s negligence may file a lawsuit against the at-fault party for compensation. The person filing the lawsuit is the plaintiff. The party sued is the defendant. In a personal injury lawsuit, defendants can hire a defense attorney to represent them in court.
In a civil lawsuit, the plaintiff files the complaint in court. This starts the legal process. As the defendant, you respond to the complaint with an answer. These are the legal pleadings that begin the litigation process.
Personal injury cases are frequently based on the legal theory of negligence. The most common type of personal injury case involves car accidents. In these cases, the plaintiff needs to prove you were negligent. Negligence requires showing:
- You owed the plaintiff a duty of care;
- You failed to uphold that duty;
- The breach of the duty of care caused the injury; and
- The plaintiff was harmed or injured as a result.
In a civil lawsuit, the plaintiff has to prove their case by a preponderance of the evidence. This means more likely than not. Your defense lawyer can show doubt about one or all of these elements. If you show it is more likely you were not negligent, you should not be held liable.
What Are Common Defenses to Personal Injury Claims
In personal injury law, there are some common defenses that your lawyer can use. These include:
- Mitigation of damages: The plaintiff failed to take steps to lessen the damages. For example, the plaintiff may be responsible for permanent injuries if they never got medical attention.
- Assumption of risk: The plaintiff voluntarily participated in an activity they knew was risky. An example may be a sporting activity known to have a risk of injury.
- Statute of limitations: The plaintiff failed to file the lawsuit within the time limit to file a legal claim.
- Pre-existing injury: The plaintiff’s injury existed before the event in question and was not the fault of the later accident.
- Waivers and releases: The plaintiff signed a waiver or release stating you are not liable for any harm sustained.
- Settled: The plaintiff already accepted a settlement and released all legal claims.
The defenses available to you as a defendant in a personal injury case will vary depending on the circumstances. An experienced personal injury lawyer deals with these daily and will know how to employ them strategically.
What Are Contributory and Comparative Negligence?
Injury accidents are not always caused by just one person. Car accidents and other claims may involve multiple drivers with some share of fault for causing the accident. If the plaintiff also has some blame for causing the accident, it can complicate the personal injury claim. Comparative and contributory negligence are legal doctrines courts use to distribute liability among multiple people at fault.
In some states, if the plaintiff has any fault in the accident, they cannot recover compensation. This is contributory negligence. For example, if you were 99% responsible and the plaintiff was 1% responsible for the accident, the plaintiff would recover nothing. While there are counter-defenses to contributory negligence, the defendant can use, without a defense, the law of contributory negligence. This means the plaintiff cannot recover if they are even partially at fault.
Most states have some modified version of comparative negligence. In a pure comparative negligence state, the plaintiff’s damages are offset by their proportion of fault. For example, in a $100,000 injury accident, you are 60% responsible, and the plaintiff is 40% responsible. In that situation, you would owe the injured party $60,000 in damages.
Other states follow modified comparative negligence. This cuts off recovery for the plaintiff if they are more than 50% or 51% at fault for the accident. If you have questions about your liability in an accident, talk to your personal injury attorney about your legal options.
Can You Settle a Personal Injury Claim to Avoid Court?
Sometimes, it makes more sense for you to settle out of court than go to trial. Publicized litigation can affect your reputation. Your attorney can negotiate a settlement agreement to avoid going to court.
Settlements can be less expensive and take less time than a trial. You can also keep the details of the settlement private. To settle, your attorney can negotiate with the plaintiff’s lawyer to settle the legal claims for a specific amount.
Does My Insurance Cover the Plaintiff’s Injuries?
In some situations, your insurance policy will pay for a defense attorney. For example, if someone trips on the icy walkway in front of your house, your homeowner’s insurance policy may cover the injury claim. If the injured person files a premises liability claim, your insurance company may handle the case.
In these cases, the insurance company will use their own lawyer. However, their lawyer works for them—not for you. If you’re worried the insurance company’s lawyer won’t represent your best interests, you can hire your own defense attorney.
How Can a Personal Injury Lawyer Help if I Get Sued?
If someone files a personal injury claim against you, dealing with the lawsuit can take time and money. If you are found liable, it could cost you thousands in medical bills, lost wages, and property damage. Protect yourself and your property by contacting an experienced attorney. Speak to a local personal injury defense attorney about defending yourself in a personal injury lawsuit.