Common Liability Defenses in Personal Injury Cases
A personal injury victim must prove that the defendant is liable in order to recover compensation. “Liability” is a legal term that means that the defendant is at fault and legally responsible for the personal injury victim’s damages. Defendants raise several common liability defenses in many personal injury cases. They hope that they will win on one, or more of those defenses so that they don’t have to pay the personal injury victim any compensation. This post discusses those common liability defenses.
Common Liability Defenses
The defendant has liability insurance to cover them in nearly every case. Once the injured victim notifies the defendant’s liability insurance carrier about their claim, the carrier immediately begins to evaluate its potential liability defenses. In some wrongful death, car accident, and truck accident cases, the insurance carrier doesn’t have any good liability defenses. They will attempt to settle those cases before the victim files a lawsuit.
In other personal injury cases, the insurance carrier has one, or more, potential liability defenses. They are less likely to settle those cases pre-lawsuit. In fact, they may refuse to offer the injured victim any money unless the victim proves liability at trial. In those cases, the injury victim needs to hire a top personal injury lawyer to maximize their chances of success.
Some of the typical liability defenses include:
One of the most common liability defenses is the comparative negligence defense. When the defendant raises that defense, they allege that the injured victim was partially, or wholly, responsible for causing the accident.
For example, if the victim sues the defendant for making an unsafe left turn in a car accident case, the defendant might counter that the victim drove too fast for conditions, or failed to keep a proper lookout.
In Georgia, an injured victim can still recover compensation as long as they are not 50% (or more) at fault for causing the collision. A skilled Atlanta personal injury lawyer will help minimize the victim’s comparative negligence so that they can recover the compensation they deserve.
Assumption of Risk
Defendants raise an assumption of risk defense when the injured victim allegedly engaged in an unreasonably dangerous activity. For example, if the injured victim darted across highway traffic and was struck by an oncoming vehicle, the vehicle driver will contend that the victim assumed the risk that they would be injured.
If the assumption of risk liability defense is successful, it completely bars the injured victim from recovering any compensation.
No Proximate Cause
In many personal injury cases, the defendant contends that even if they were negligent, their negligence didn’t cause the victim’s injuries. That is known as a “proximate cause” liability defense. For instance, in an auto accident case, the defendant might contend that the plaintiff’s neck and back injuries preceded the accident. In a wrongful death case against a doctor the doctor might contend that the patient died due a chronic medical condition, like congestive heart failure.
Lack of Foreseeability
“Lack of foreseeability” is another one of the common liability defenses. Defendants often raise this defense in a premises liability case, such as slip/trip and fall incidents and negligent security cases.
For instance, in a negligent security case in which an individual was shot and killed at an apartment complex, the property owner might contend that they could not have foreseen the criminal attack because the complex was located in a safe neighborhood with no violent crime history. In a slip and fall case, the store owner might contend that they could not have foreseen the fall because the slippery condition had only existed on the floor for a few minutes before the fall.
Failure to Mitigate Damages
Defendants often raise the “failure to mitigate damages” defense when injured victims don’t follow their doctors’ instructions. For instance, if a victim is injured in a dog bite attack and the victim’s doctor prescribes antibiotics to treat the wounds, the victim should take those antibiotics as prescribed. If the victim doesn’t consume those antibiotics, and develops a staph infection as a result, the defendant will argue that they’re not responsible for the staph infection.
Statute of Limitations
Personal injury victims must file their lawsuits before the statute of limitations (SOL) expires. Additionally, they must serve the defendant with a copy of their lawsuit within a reasonable time period after they file it. If the victim doesn’t act promptly, the defendant will raise a statute of limitations liability defense.
Georgia personal injury victims generally must file their lawsuits within 2 years of the incident. However, some injury claims must be filed even sooner than that, such as claims against cities, counties, and the State of Georgia.
Two years might sound like a long time, but it’s not. Many personal injury victims receive medical treatment for 6-9 months after the incident. It may take the personal injury lawyer several months to evaluate a complicated case. It may also take several months to serve the defendant if they try to avoid service.
Graham Scofield Injury Lawyers Can Help You
At Graham Scofield Injury Lawyers, our Atlanta personal injury lawyers have successfully litigated hundreds of personal injury cases. We know how to overcome all of the common liability defenses that defendants assert in personal injury cases.
Call us today and schedule a free initial consultation with our Atlanta personal injury lawyers. (404) 939-9470.