When it comes to personal injury claims, understanding the defenses that can be employed is crucial for both plaintiffs and defendants. Personal injury claims can arise from various accidents and incidents, such as car accidents, slip and falls, defective products, and more. While plaintiffs seek compensation for their injuries and damages, defendants often employ several defenses to mitigate their liability.
The following are the three most commonly used defenses in personal injury claims. If you have been injured as the result of someone else’s negligence, it’s important to contact a Virginia Beach personal injury lawyer for legal assistance.
Contributory or Comparative Negligence
Contributory or comparative negligence is a defense strategy that asserts that the plaintiff shares some level of responsibility for their own injuries. Depending on the jurisdiction, this defense can be applied in one of two ways: contributory negligence or comparative negligence.
Contributory Negligence
In both Virginia and North Carolina, if the defendant can prove that the plaintiff’s own negligence contributed in any way to the accident or injury, the plaintiff may be barred from recovering any compensation. This strict rule means that even if the plaintiff was only 1 percent responsible, they may not recover any damages. The only other states in the country that follow the contributory negligence rule are Alabama and Maryland.
Comparative Negligence
In contrast, the other 46 states have adopted a comparative negligence system that allows for a more equitable distribution of responsibility. Under this system, both the plaintiff and defendant are assigned a percentage of fault for the accident, and the plaintiff’s compensation is reduced accordingly. For example, if the plaintiff is found 20 percent at fault and the damages awarded are $100,000, the plaintiff would receive $80,000.
Assumption of Risk
Assumption of risk is a defense that argues that the plaintiff knowingly and willingly accepted the risks associated with a particular activity or situation. This defense is commonly used in cases involving recreational activities, sports, and certain professions where participants are aware of potential dangers.
For instance, if a person is injured while participating in a high-risk sport like skydiving, the defendant may argue that the plaintiff willingly assumed the risks associated with the activity and cannot hold them liable for the resulting injuries. To succeed with this defense, the defendant must demonstrate that the plaintiff had full knowledge of the risks and voluntarily chose to participate.
Lack of Causation
Causation is a critical element in personal injury claims, and defendants often challenge the plaintiff’s ability to establish a direct link between the defendant’s actions or negligence and the injuries suffered. To succeed with this defense, the defendant may argue one of the following:
- Pre-existing condition: The defendant may claim that the plaintiff’s injuries were a result of a pre-existing medical condition or injury unrelated to the incident in question. They may argue that the plaintiff’s injuries would have occurred regardless of the defendant’s actions.
- Intervening cause: Defendants may argue that a separate, unforeseeable event or action intervened and caused the plaintiff’s injuries. For example, if a plaintiff is injured in a car accident but subsequently sustains additional injuries in a separate incident, the defendant may assert that the second incident was the primary cause of the injuries.
- Lack of medical evidence: Defendants may challenge the adequacy of the medical evidence presented by the plaintiff to establish a direct link between the defendant’s actions and the injuries. They may argue that the plaintiff’s medical records and expert testimony do not conclusively prove causation.
Contact Our Law Firm Today
If you or a loved one has been injured in an accident caused by another party, contact one of our Virginia Beach personal injury lawyers. The legal team at Shapiro, Washburn & Sharp is dedicated to helping injured clients obtain the compensation they deserve for their medical bills, lost income, and other losses their injuries have caused. Our legal team will work diligently to make sure you get the financial justice the law allows, like the $235,000 car accident insurance settlement we obtained for one client who suffered multiple injuries when another driver failed to yield the right of way.