In personal injury cases. an at-fault party may avoid liability, in whole or in part, by asserting certain defenses. The following is a list of defenses in personal injury cases.
*Comparative Fault
Comparative fault, also known as comparative negligence, is a defense that apportions damages based on the parties’ percentage of fault for the accident. For example, a party who is only 20% at fault for causing the accident will only be liable for paying 20% of the damages. Comparative fault replaced contributory negligence as a defense in California.
Contributory negligence mandates that a plaintiff who is even the least bit negligent is not entitled to any recovery. A few states still use contributory negligence, but the remainder uses some type of comparative negligence system. California uses a pure comparative negligence system. This means that personal injury plaintiffs may still recover some portion of damages even if they are 99% at fault for the accident.
California courts have found that “the doctrine of comparative negligence is preferable to the ‘all-or-nothing’ doctrine of contributory negligence from the point of view of logic, practical experience, and fundamental justice.”
*Assumption of the Risk
Assumption of the risk is a legal defense where the plaintiff assumes the risk of injury from engaging in a specific activity by certain conduct or because of the nature of the activity. This defense is often used against plaintiffs who are injured while participating in a recreational or sporting activity. Like contributory negligence, it produces a harsh result since it bars any recovery.
*Waiver, Release, Consent
This defense involves the situation where a plaintiff may have voluntarily relinquished the right to sue in a written agreement. These waiver clauses are often hidden in a contract. In effect, by agreeing, the party is waiving the right to sue and releasing the other party from all liability.
*Statute of Limitations
This defense involves the expiration of the allotted time for suing a defendant for the type of claim. For example, breach of contract cases typically have different statutes of limitation than personal injury cases.
*Pre-existing Condition
A pre-existing injury or condition is a defense that may reduce damages. It alleges that the plaintiff’s injuries existed before the accident and may be used to limit liability.
*Absence of Duty
In negligence cases, the defendant must have owed some duty of care to the plaintiff to be legally responsible for the plaintiff’s damages. In the absence of a duty, the defendant may not be legally negligent.
If you have suffered an injury in any type of accident, and another party is responsible for this harm, you have a right to compensatory damages for your losses. The personal injury attorneys at Moss Bollinger can help you assert your valuable right to compensation. Moss Bollinger is dedicated to protecting and asserting the rights of our clients. Call 866-942-7974 today for a free consultation or contact us online.