Defenses in Personal Injury Cases

A look at common defense strategies that can bar or limit a personal injury lawsuit.

If you've suffered a personal injury and are thinking about filing a lawsuit, you'll need to know what kinds of arguments (defenses) you can probably anticipate from the other side, so you can be prepared. And, if you are on the other side (as a defendant) and someone is claiming that you're to blame for causing their injuries, you'll want to understand some defense strategies that can help you fight the lawsuit.

Defenses in personal injury cases are arguments that typically relate to two things: 1) what the plaintiff did in connection with the accident their role in causing it, for example, and 2) what the plaintiff didn't do after the injury like get proper medical attention or file their lawsuit on time. This article discusses some of the defenses that are used most often in personal injury cases.

Defenses Based on Plaintiff's Role in the Accident

When a plaintiff files a lawsuit for personal injury, one of the first arguments usually heard from the defendant's side is that plaintiff (the victim) was at fault (or partial fault) for the accident or the injury.

If you've filed a lawsuit but are partially to blame for the accident that caused your injuries, the compensation you receive will probably be affected. Timing-wise, this could happen early on, if you settle your case with the defendant and a damages award is drawn up by settlement agreement, or it could be the end result of a lengthy trial.

The degree to which a damages award could be affected by your fault or the chance that your recovery will be barred altogether depends on whether your state follows a "comparative negligence" or "contributory negligence" standard, which we discuss below. Similarly, if you willingly participated in a dangerous activity and ended up getting hurt, a court or insurer might say that you "assumed the risk" of injury, and they might deny your claim for compensation.

Below you'll find a look at the defenses of comparative negligence, contributory negligence, and assumption of the risk in personal injury cases.

Comparative Negligence

Most states follow a "comparative negligence" rule in personal injury cases, calculating damages under a formula that looks at each party's degree of fault for the accident.

For example, say you're in a car accident and you're found to be 25% at fault and the other driver 75% at fault. Perhaps this was the conclusion found in a police report filed after the accident or a stipulation that was agreed upon after the insurance companies for both sides investigated the accident. In this case, if you file a lawsuit for your injuries and property damage, any compensation you receive will likely be reduced by 25% (your degree of fault for the accident). So if your total damages add up to $20,000, you'll only receive $15,000.

The vast majority of states follow comparative negligence principles when damage awards are tallied in personal injury cases. But these states also typically fall into one of two camps: those that use a "pure comparative negligence" system and those that go with a "modified comparative negligence" system. The difference between the two is that in the "pure" system, an injured plaintiff can recover damages as long as they are not completely at fault (they can be anywhere from 1 to 99% at fault), while in a "modified" comparative negligence system, an injured plaintiff can recover compensation only if they are 50% or less at fault (or 49% or less in some states).

Contributory Negligence

While comparative negligence laws can reduce a victim's compensation when they're partially at fault (in most cases), the concept of contributory negligence isn't as forgiving. In states that follow contributory negligence principles, victims who share any degree of fault for an accident or injury are usually barred from getting any compensation via a lawsuit for personal injury. So, if you live in a contributory negligence state and you're in a car accident that was only 5% your fault and 95% the fault of another driver, you can't recover any compensation for your damages through a personal injury lawsuit.

Only a small handful of states have contributory negligence laws including Alabama, Maryland, North Carolina, and Virginia. Personal injury plaintiffs in those states may face an uphill climb if fault is at issue in the case.

Assumption of Risk

In some personal injury cases, a defendant faced with a lawsuit will argue that the injured person "assumed the risk" of getting injured by willfully participating in an activity that the injured person knew was dangerous. This kind of defense is raised most often in lawsuits that stem from contact sports (like football and basketball), paintball-style games, and spectator injuries (when a foul ball hits a spectator in the stands at a baseball game, for example).

One key aspect of a successful "assumption of the risk" defense is that the harm suffered must relate closely to the risk that's inherent in the activity. So if you're playing a game of organized basketball at the local gym, you've probably assumed the risk of getting elbowed inadvertently since that's a common occurrence in a game of basketball. A lawsuit over any resulting injuries probably wouldn't fly, because you assumed the risk of injury by deciding to play in the game. On the other hand, if you got injured playing basketball when the backboard broke and fell on you, the defendant (the gym owner, for example) couldn't rightly argue that you assumed the risk of such a thing happening, because a falling backboard isn't a danger that's inherent in the game of basketball.

A personal injury defendant has a number of options for trying to poke holes in the plaintiff's case, trying to get the lawsuit dismissed altogether or reducing the amount of compensation that needs to be paid to the plaintiff. Here's a look at some of those arguments. (Note: These tactics may not always be considered "defenses" in a strict legal sense, but they're worth mentioning here since they can have the same practical impact that a defense would.)

Plaintiff's Lawsuit Fails to State a Claim

One of the first things that a defendant in a personal injury case might argue is that the plaintiff's complaint (the list of a lawsuit's allegations) fails to establish one or more essential elements of their case. For example, one of the elements of a negligence claim is "causation" the crucial link between the defendant's action and the injuries to the plaintiff that shows the defendant caused the plaintiff's injuries. But if the plaintiff's lawsuit does not illustrate a clear case for causation (for example, the lawsuit points to a different cause that may have broken the chain of causation between the plaintiff and the defendant), that might relieve the defendant of any liability for plaintiff's injuries. For tips on the elements of proof that are necessary in most injury cases, see Nolo's article Proving Fault in Personal Injury Accidents: General Rules.

Plaintiff's Lawsuit Was Filed Too Late (Statute of Limitations)

Another defense related to the plaintiff's handling of their case is that the "statute of limitations" has run. In legalese, the statute of limitations refers to the state law that identifies the amount of time a plaintiff can wait before filing a lawsuit. The applicable statute of limitations varies from state to state and depends on the type of lawsuit being filed. In many states, the statute of limitations for filing a personal injury lawsuit is one year from the date of the accident or injury.

The statute of limitations is an "absolute bar" defense, meaning that if the defendant's argument is accepted by the court in other words, a judge rules that the plaintiff failed to comply with the filing deadline under the applicable statute of limitations the plaintiff's lawsuit will be dismissed altogether.

To learn more about time limits for filing a lawsuit and the rules in your state, check out Nolo's articles Statutes of Limitations: Is It Too Late to Sue? and Chart: Statutes of Limitations in All 50 States.

Plaintiff Failed to "Mitigate" Damages

This one isn't a defense to the lawsuit itself (or when it was filed). Rather, it's an argument that any compensation the defendant must pay to the plaintiff should be reduced, because the plaintiff's action (or inaction) made the damages worse.

Even if the defendant was 100% at fault for an accident or injuries, the victim who was harmed and ends up filing a personal injury lawsuit must take reasonable steps to minimize or “mitigate” the damage done, perhaps by going to the emergency room. For plaintiffs who don't meet their duty to mitigate the damage done, the court might reduce the compensation according to the amount of damages that could've reasonably been avoided.

For example, a court might reduce a damage award in a personal injury case because of the plaintiff's "failure to mitigate" if, after a car accident, the plaintiff waited for weeks before seeking medical attention making their medical condition worse and their treatment more costly. Similarly, a plaintiff seeking compensation for lost wages probably can't sit back and reject a legitimate job offer if their injuries are no hindrance to performing the work that's available. In such a case, a “lost wages” damage award might be reduced under a formula that subtracts, from the plaintiff's compensation, income that would have been earned from the job that the plaintiff passed up.

Learn More About Injury Lawsuits

For in-depth information on all the key ingredients for a successful personal injury lawsuit, get How to Win Your Personal Injury Claim, by Joseph Matthews (Nolo). If you'd like to talk with an experienced attorney, use Nolo's Lawyer Directory to find a personal injury lawyer in your area (click the "Types of Cases" and "Work History" tabs to find out about the lawyer's experience handling personal injury cases like yours).