Whether you are attempting to file a personal injury claim with an insurance company, settle a case out of court, or head to the courtroom, it is vital to understand how the defense is planning to argue your case legally. Below, our West Virginia personal injury lawyers have collected the eight most common ways that defense attorneys approach personal injury cases, either to avoid paying out a claim altogether or to reduce the amount of compensation.
- The injury victim can’t prove fault. At the heart of every personal injury case is proving fault. If, at the end of the day, you simply don’t have enough convincing evidence that the other party was responsible for your accident, you will not win your case.
- The injury victim was at fault. One defense is to go on the offensive and prove that the defense didn’t cause the accident because the plaintiff did. Maybe the injury victim was being reckless, was driving under the influence of drugs or alcohol, or breaking a law, or ignoring clean warning signs.
- The injury victim was more at fault than the defendant. To reduce compensation, the defense may simply argue that although multiple parties were at fault, the injury victim was more at fault. West Virginia is a comparative negligence state, which means the law is that if the plaintiff’s fault is greater than the combined fault of all other persons responsible, they cannot collect damages. In addition, if they were somewhat at fault, their reward is reduced proportionally according to the percentage of fault.
- The injury victim assumed risk. In some cases, the defense may argue that the injury victim assumed the risk of getting injured by choosing an activity that has known dangers. For example, if you are injured when exercising at a gym, and the injury is a common result of the exercise you were doing, you may not have a case. On the other hand, if you were exercising at a gym and were injured because of a broken piece of equipment, the gym may be liable.
- The injury victim did not mitigate damages. This strategy is used to reduce compensation. The defense argues that while they are at fault, the injury victim didn’t take reasonable actions to minimize the consequences of the accident. For example, if the injury victim didn’t seek timely medical help, or did not follow through with treatment, the plaintiff could argue that they did not mitigate damages.
- The injury victim waived their right to sue. Many dangerous activities involve signing contracts and waivers that protect business owners from personal injury lawsuits. For example, before you go parasailing, or even join a recreational sports league, you may have to sign something. However, even if you did sign a waiver or other paperwork before your accident and injury, you should speak to an attorney about your case.
- The injuries were not caused by the defendant’s actions. Personal injury cases must prove causation: that the negligence of the plaintiff led to the accident, which then led to the injury. If the other side can prove that the injury was a pre-existing condition, or that the accident did not lead to the injuries, they do not have to compensate for the costs of the injuries.
- The claim was filed too late. Personal injury cases in West Virginia have a two-year statute of limitations. If you file your case after that period, it may not be valid.
Make Sure Your Personal Injury Case Is as Strong as Possible
As we build your West Virginia personal injury case, we not only want to collect evidence and solidify our arguments, we also want to anticipate how the defense will approach your claim. Knowing the most common defenses in these cases is vital to winning them.
At Tiano O’Dell, PLLC, we are dedicated to helping our clients recover a just amount of compensation following an accident. To ask a legal question or schedule a time to speak with an attorney, please contact us today.