How to overcome common defense strategies to win your personal injury case
If you’ve suffered an injury because of someone else’s negligence, you may be able to recover compensation through a personal injury claim. While many of these cases are negotiated between parties and resolved out of court, some will inevitably end in a trial.
During a trial, the defendant’s attorney will likely use several defenses to prove that their client was not responsible for the incident that caused your injury or any related damages. With the proper legal representation, your attorney can navigate around these defenses and provide evidence of the defendant’s liability so you can obtain the settlement you deserve.
Common defenses used by personal injury defendants
While defense attorneys will use a number of strategies to prove their clients weren’t at fault in a case, here are some of the most commonly used defense arguments in South Carolina personal injury cases.
Perhaps the most common defense used in personal injury cases is contributory negligence. This defense claims that the defendant should not be held exclusively liable for the accident because the plaintiff also shared in the fault. The defendant will likely use this defense if they feel that the plaintiff did anything at all to contribute to the incident.
This is a common argument made in car accident cases because these accidents are often the result of mistakes made by more than one party.
For example, let’s say you were in an accident with a driver who ran a red light, but you were talking on your phone as you crossed the intersection. The defense could try to prove that although their client was mostly responsible for the accident, you also share some of the blame because you were distracted by your phone.
Fortunately, just because you may have acted in a way that contributed to an accident doesn’t mean you won’t be able to receive compensation. Under South Carolina law, the amount of damages a plaintiff can recover in a personal injury case is reduced by the percentage of their fault. That means that if the court finds that the accident was 10 percent your fault, your final damage award would be reduced by 10 percent compared to what it would have been if you had no fault in the accident.
If the defense can prove that you were 51 percent responsible or more for your injuries, then you won’t be able to recover anything in a settlement.
An experienced personal injury attorney will anticipate this argument from the defense and work to gather evidence to limit or disprove your liability in any accident case.
Pre-existing health conditions
Another defense often used by defendants in a personal injury case is that the incident didn’t cause the injuries you suffered because you have a pre-existing condition.
For example, if your back was injured during a car accident or slip-and-fall accident, the defense could argue that the injury was already present if you have a pre-existing medical condition related to a previous back issue or injury.
In order to prove that your injury resulted from a pre-existing condition, the defense will often request access to your medical records over the last few years to look for any evidence that you’ve received treatment for a similar injury.
Fortunately, even if you had back issues prior to your accident, you could still be entitled to compensation if the accident aggravated or worsened your injury.
An experienced personal injury attorney may be able to use your medical records and expert witnesses to prove that the accident made your injury worse and required additional treatment that wasn’t necessary before the accident.
Assumption of risk
“Assumption of risk” is a defense that argues the defendant should not be held liable for the plaintiff’s injuries because the plaintiff knowingly chose to participate in an activity that was inherently dangerous.
This defense often applies in cases where a plaintiff chose to engage in activities such as skydiving or bungee jumping in which they were aware of the dangers involved in the activity, but they still went ahead and took part in it anyway.
The defense will need to prove at least 2 elements when it comes to using this defense in court:
- You clearly understood the risks involved.
- You accepted those risks on your own accord without feeling pressured by the defendant.
Oftentimes, activities involving some level of inherent risk require you to sign a waiver that releases the defendant from liability if you get hurt. Signing this agreement is binding, which means that in most cases, you forfeit your right to sue or recover damages.
However, there are some instances where you may still be able to get compensation for our injuries:
- If it can be proven that you were injured because the defendant was reckless or grossly negligent (for example, they failed to perform required maintenance on the equipment that resulted in your injury)
- If the language in the waiver is unclear or incomplete
Because these cases can often be challenging to prove, you’ll need an experienced personal injury attorney who can investigate your case and gather all necessary evidence.
When to contact a South Carolina personal injury attorney
If you suffered an injury because of another person’s negligence, you have a legal right to be compensated. An experienced personal injury attorney can explain your options and devise a plan of action to ensure you receive a fair settlement in your case.
Never accept a settlement offer from an insurance company before speaking with a personal injury attorney. Insurance companies typically offer you far less than you deserve, and if you accept their initial offer, you won’t be able to recover further damages if you discover that your injuries require additional medical treatment or time off work.
If you’ve been injured in an accident in South Carolina, the experienced personal injury attorneys at Chappell, Smith & Arden, P.A. are here to help. We’ve dedicated our practice to helping injured clients across the state of South Carolina get the justice they deserve, recovering over 300 million dollars for our thousands of satisfied clients over the past 30 years alone. Contact us today for your free consultation so we can develop an individualized plan for you, too.