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The Law Offices of Marc L. Shapiro,  P.A.  Your Personal Injury Team.

Common Defenses To Negligence Claims

Negligence

If you are a personal injury victim, it is only fair that the person or entity responsible for your injury be held legally responsible for the losses you suffer because of the injury. But it can be hard to win a personal injury case, especially if you decide to handle your claim without legal representation. Apart from needing to prove what occurred to show negligence on the defendant’s part, the defendant’s attorney may also have defenses to your claim that you must overcome. An attorney can assist you in overcoming the defenses the defendant in your case might use. They can help you gather additional evidence that can enable you to recover the compensation you deserve.

This article discusses four of the most common personal injury defenses that at-fault individuals and insurance companies use to reduce liability or avoid it altogether.

Comparative Negligence

When the defense side brings up this defense, it is declaring that you are also to blame for your accident. With that said, it is crucial to keep in mind that under the comparative negligence doctrine, a personal injury victim’s own share of the blame for their injury does not relieve a defendant of liability. Florida, to be specific, follows the “pure comparative negligence” rule. The doctrine of pure comparative negligence reduces a personal injury victim’s recovery by the victim’s percentage of fault. For instance, suppose you got into an auto accident, and it is determined that you are 20% to blame for your accident, while the defendant is found 80% at fault. In such a case, any compensation you receive will be reduced by 20%. So, let’s say your total damages add up to $50,000. You will only receive $40,000 (80% of $50,000) in such a case. Additionally, under the pure comparative negligence rule, you can recover compensation from an at-fault party even if you are 99% to blame for your accident.

Other states follow the “modified comparative negligence” doctrine. Some states, such as Colorado, Kansas, Maine, and Georgia, follow the “50 percent bar rule.” Under this rule, a plaintiff cannot recover compensation if they are 50% or more to blame for their damages. Other states such as Illinois, Iowa, and Montana follow the “51 percent bar rule.” Under this rule, a plaintiff cannot recover compensation if they are 51% or more to blame for their damages.

Pre-Existing Condition

This is another commonly used defense in personal injury cases. The pre-existing condition defense involves alleging that the plaintiff’s injury was not a result of the accident. When the defense side brings up this defense, it is claiming that your injury is something that existed even before your accident, and so they should not be held liable and made to pay for it. To prove that you have a pre-existing condition, the defendant’s attorney or insurance company may seek out your medical records to learn about your medical history. If you do have a pre-existing medical condition, the defense side will most likely claim that you are using old injuries to recover compensation.

However, just because a personal injury victim has a pre-existing condition does not mean they are ineligible for compensation. If an accident worsens or aggravates a pre-existing condition, then a defendant is required to compensate the plaintiff. An attorney can help you prove that an accident worsened or aggravated your pre-existing medical condition and recover the compensation you deserve.

Assumption of Risk

Another way a defendant in a personal injury case can try to avoid liability is by claiming that the plaintiff knew about the dangers involved in engaging in a particular activity and chose to proceed with the activity anyway. This is what is known as “assumption of risk.” Generally, performing an activity you knew was dangerous from the beginning constitutes acceptance/assumption of the risk. If the defense of assumption of risk applies in your personal injury case, you will most likely not be able to recover compensation even if the defendant is also to blame for your injury. This doctrine usually applies in situations where an individual is hurt while engaging in a sporting activity.

Personal Injury Claim Barred by Statute of Limitations

In Florida, you generally have four years from the date of your injury to file a personal injury claim. Failing to file your claim on time can provide the defendant’s attorney with a defense to use against you. However, it is crucial to note that, in cases where injuries are discovered at a later date, such as most product liability cases, the statute of limitations can be extended via the discovery rule.

Contact a Naples Personal Injury Attorney

If you are a personal injury victim who needs help holding an at-fault party liable and recovering fair compensation, don’t hesitate to contact a Naples personal injury attorney at The Law Offices of Marc L. Shapiro, P.A. today.

Resources:

law.cornell.edu/wex/assumption_of_risk

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0768/Sections/0768.81.html

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