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Common Defenses to Personal Injury Claims



A defendant has several available theories for attacking a personal injury plaintiff's case. These tactics may be able to knock out the claim and dismiss the case entirely, or at least reduce the claims made and the ultimate recovery. The particular jurisdiction in which a claim is made and case is filed matters significantly in the overall success of defenses. Local rules of court, state statutes, and case law will control the availability, success, and strength of defenses to personal injury claims and suits.

Many of the defenses in personal injury cases fall into these categories:

  • Actions the plaintiff took regarding the accident, such as his or her role in its cause, contributing causes to it, etc.
  • Actions the plaintiff failed to take after the injury stemming from the accident, such as failure to get prompt medical assistance, failure to adhere to medical treatment, or failure to file a timely lawsuit, etc.

Plaintiff's Role In Accident

Defendants may attempt to argue the plaintiff was at fault completely, or at least partially, for the injury stemming from the accident. Compensation may be affected by the amount of blame the plaintiff holds for the accident or injury. In some states, contributory negligence is a complete bar to the plaintiff's recovery. In other states, faults of the plaintiff and defendant are compared and recovery is adjusted in a comparative negligence jurisdiction. Most states adopt the more modern, equitable comparative negligence system, as opposed to the more stringent, harsh contributory negligence rules of Maryland, Alabama, North Carolina, and Virginia. Another argument the defendant can make in particularly dangerous activities such as four-wheeling, paintball, or bungee jumping is that the plaintiff assumed the risks associated with the high-risk and inherently dangerous activity.

Failure To State Claim

A defendant can argue that the plaintiff's legal complaint fails to set forth one or more of the required elements of the claim. Under this allegation, the complaint fails to make the complete and accurate statement of a claim on the face of the document. This defense pokes holes at the lawyer's craft in preparing the complaint. It focuses upon the substantive elements of a claim, not specific underlying facts and circumstances or proof to substantiate the claim. The failure to state a claim can relieve the defendant of responsibility for the plaintiff's injuries, in part, or completely if all claims fail.

Claim Filed Too Late

This defense regards the plaintiff's or the plaintiff's lawyer's handling of the case. This defense concentrates on the statute of limitations applicable to the claim, which is the legal deadline for filing a lawsuit, and states that the plaintiff is time barred in filing suit because he or she waited too long. The state where the injury or accident occurs defines the applicable deadline in most cases. This defense is an absolute defense, if successful, that completely bars plaintiff's recovery.

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