If you or somebody you care about has been injured due to the careless or negligent actions of somebody else, you may be able to recover compensation for your losses. However, you should be ready for the at-fault party to do anything they can to limit the amount of money they pay or even deny responsibility altogether. Here, our Charleston personal injury lawyers we want to discuss some of the most common defenses against claims in West Virginia.
At-fault parties may attempt to put some or all of the blame for the incident on the injury victim. If an at-fault party can place 50% or more of the blame on the injury victim, they will not have to pay any compensation at all. However, because West Virginia operates under a modified comparative negligence system, even placing partial blame on an injury victim can reduce the amount of money that the defendant has to pay for a claim. In this state, victims can recover compensation if they are up to 50% at fault for an injury, but the amount of money they receive will be reduced based on their percentage of fault.
Assumption of Risk
If a person sustains an injury because they were taking part in a risky activity, such as riding an ATV or a dirt bike or skydiving, it is possible that the defendant in the case will use “assumption of risk” as their defense.
Under the assumption of risk rule, the injured party could be deemed to have assumed the risk of injury by agreeing to partake in the activity in the first place. Often, people are required to sign waivers of liability or release forms before participating in particularly risky activities.
However, there are times when the other party can be held responsible regardless of whether or not a person is assumed to risk, particularly if the defendant failed to uphold their duty of care to the injury victim.
Pre-Existing Health Conditions
Defendants in a personal injury case often tried to claim that the injury victim had pre-existing conditions or pre-existing injuries. By making these arguments, the defendant is attempting to minimize the compensation they pay out to a plaintiff. If they can prove that there was a prior injury that is causing the victim’s pain and suffering, they could try to say that you were not injured in the accident in question at all.
This is a reason why insurance carriers and defense attorneys request previous medical records: so they can examine them and try to find other explanations for the current pain and suffering. However, injury victims can still recover compensation if the actions of the defendant exacerbated existing injuries or caused new injuries.
Statute of Limitations
It is crucial for victims to file their personal injury claims as soon as possible. The personal injury statute of limitations in West Virginia is two years from the date an injury occurs. If a victim fails to file a lawsuit against the alleged negligent party within this two-year window, they will lose the ability to recover the compensation they are entitled to. However, this deadline does not apply to insurance carriers. Most insurance claims need to be filed very soon after an accident occurs, often within a few days.