A personal injury case is a legal fight between two parties – the claimant and the defendant. The claimant is who files the lawsuit and the defendant is who fights it.
If you are a claimant, you should understand possible arguments that the defendant will put forward in order to restrict or ban your compensation claim. On the other hand, if you are a defendant, you should know the strategies at your disposal to refute the claim that you were responsible for the accident. If it is proved that the alleged wrongdoer’s negligence or unintentional action caused harm to the other party, the at-fault person is liable to pay the injured for the casualties.
This write-up focuses on defenses pertaining to the claimant’s potential culpability for the accident (contributory and comparative negligence) in a personal injury case.
Was the Plaintiff Partly Liable for the Accident?
If you suffered an injury in the accident and have filed a lawsuit, one of the first defenses expected to be coming from the defendant’s side is you were responsible for the accident and/or the resulting injuries.
If you were partially liable for the accident that caused you injury, it will adversely affect the compensation you will receive. Timing-wise, the case can be resolved early on if you agree to an out-of-the-court settlement offer from the defendant or if it is an outcome of a lengthy personal injury trial after the jury gives a verdict on liability (by appropriating fault between or among the involved parties) and right compensation.
The degree by which your being at fault for the accident and resulting injury could affect your damage award largely depends on if the state, where you live, follows a “contributory damage” or “comparative negligence” standard.
Talk to your injury lawyer in Winchester to know which rule your state follows.
If no one forced you to take part in the dangerous activities that left you injured later, a court or insurance company might claim that you “assumed the risk” of your injury and they might reject your compensation claim.
Comparative Negligence
In the vast majority of states, “comparative negligence” is the standard rule that applies to personal injury cases. According to the rule, the degree of liability of each party involved in the accident is the basis of damage calculation.
These states, which follow “comparative negligence” rule, belong to one of two camps – one using a “pure comparative negligence” system and another following a “modified comparative negligence” system.
The main difference between the two types is the pure system enables the plaintiff to receive the damages irrespective of the degree of his or her involvement whereas; the modified system allows the plaintiff to receive compensation only if his or her fault was not more than 50 percent.
Contributory Negligence
“Contributory Negligence”, unlike “Comparative Negligence”, is not forgiving. In states that follow contributory negligence, a plaintiff is barred from any compensation if it is proved that he or she was also at fault. Therefore, if you live in such a state, it does not matter whether you were 10% or 90% at fault; you are not entitled to receive any compensation by filing a personal injury lawsuit.
