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Jonathan Rosenfeld

December 4, 2021

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Personal injury cases are not always easy to win. Besides needing proof of what happened to show that the defendant was negligent, they may also have their own defenses to a personal injury lawsuit that you must overcome.

This will require you to bring additional evidence in order to recover compensation in your case.

The right personal injury lawyer can help an injured person overcome defenses in personal injury claims. Here are some common defense strategies used to try to keep you from recovering damages.

Using Affirmative Defenses in a Personal Injury Case

Each of the defenses described below is called an affirmative defense. This is different from the defendant disputing that they were negligent.

An affirmative defense must be raised when the defendant files their answer to the lawsuit. An insurance company could use these as a basis to deny a claim. The best way to describe an affirmative defense is as a classic “yes, but.”

Affirmative defenses are used when you, as the plaintiff, have some proof that the defendant was negligent. They are both complete and partial defenses to personal injury claims.

When at fault parties try to use an affirmative defense, they have the burden of proof for each of the elements of the defense.

However, it is likely that you would need to defend your actions at some point. If the defense can prove the affirmative defense, you can still bring your own evidence to try to disprove it.

This will require going back in time to the accident to show exactly what you did.

Contributory Negligence as a Defense to Personal Injury Lawsuits

One of the most common defenses used in personal injury claims is that the plaintiff is responsible for their own injuries. This is also known as contributory negligence.

The legal theory is that the defendant’s negligence was not the cause of the injuries, as the plaintiff failed to exercise their own due care.

An example of this happens in a car accident case. If the plaintiff was speeding or texting when they were struck by the defendant, they may bear some of the blame.

You can expect a discussion of contributory and comparative negligence in most personal injury cases.

Illinois does not use the law of pure comparative negligence. Instead, it uses modified comparative negligence. In Illinois, the law is that the plaintiff cannot recover if they bear more than half of the blame for the accident.

How Contributory Negligence Is Used in a Personal Injury Claim

Contributory negligence can be used in nearly all personal injury cases.

Even in a medical malpractice case, the doctor can make the argument that the plaintiff’s failure to follow medical instructions was the real cause of their injuries.

In a slip and fall case, one of the most common defenses is that the plaintiff was careless by not looking where they were going or hurrying through the store aisle where they fell.

Just because the defense lawyer or insurance company argues that you are at fault does not mean that you cannot recover.

You may even be able to recover when you were partially to blame for your own injuries.

The key is for your attorney to be able to dispute the defense when they argue that you are to blame. Contributory negligence is an affirmative defense that the other side must prove, but you will likely need to show exactly what you did.

The key number here is 50%. If you were less than 50% to blame for the accident, you can recover for your injuries, although your settlement check will be reduced by the amount that you were at fault.

Pre Existing Condition

The defendant may argue that the potential injury was something that was there beforehand, and they should not pay for it. For example, you may have suffered a neck or back injury in a car accident.

However, defense attorneys and insurance companies may dispute the exact nature of your injuries, and they will ask when did the injury occur.

They may try to dig into your medical records in an attempt to prove that this was something that you have been dealing with for some time.

However, an injured plaintiff can even recover if the accident aggravated and worsened pre-existing conditions because it would not have happened without the defendant’s negligence.

Dangerous Activity

Another way that defendants try to avoid liability to the injured party is to claim that the plaintiff knew full well of the risks involved and proceeded with the activity anyway. This is also known as assumption of risk.

The legal theory is that the defendant should not be held responsible when the plaintiff voluntarily and knowingly accepted the risks of the activity.

Here, performing the inherently dangerous activity constitutes acceptance of the risk.

There are two key elements that the defense must prove when they use the assumption of risk defense:

  • The plaintiff knew of the risks involved (had actual knowledge and not implied knowledge)
  • They voluntarily accepted the risks involved

The Plaintiff Signed a Release

Whenever you participate in certain activities, you have the standard release agreement placed in front of you to sign as a condition of your participation. In some cases, this may actually be binding.

In general, courts will not enforce overbroad and unfair release language, but you can bet that insurance law firms will not hesitate to put the release out there as a reason why their client should not pay for your injuries.

The Personal Injury Claim Is Barred By the Statute of Limitations

There is a limited amount of time to file a lawsuit after a personal injury.

In Illinois, you have two years from the time that you were injured or knew that you should have been injured to file a lawsuit. While this deadline seems pretty clear, the gray area is when you should have known that you were injured.

There are some cases where you may not have known until years later that you were injured. This often happens in product liability cases when defective drugs are at issue and in toxic exposure claims such as mesothelioma.

The defendant may try to claim that you knew of your injuries (or should have known) more than two years before you filed your case.

How a Personal Injury Lawyer Helps

It is not always easy to recover damages after a personal injury. You must prove what the defendant did and navigate comparative negligence laws to be in a position to get a check.

Then, you must negotiate the amount of the check. If you have filed a lawsuit, the defense attorney could try to make your life difficult.

You need a law firm on your side that can handle the insurance company and everything that they try to throw at you.

Our attorneys will help with your personal injury claim from the moment that we form an attorney client relationship. We will handle all of the details of the claim, including the paperwork and negotiating a settlement.

We will stand up for your legal rights when the insurance company is doing everything that it can to avoid liability.

Why You Need Legal Advice

The personal injury claims process is meant to be difficult for you. Insurance companies and their defense law firms intentionally try to make things hard because it saves them money.

This includes using the reasons listed above to try to deny your claim in its entirety.

You need to be prepared for the tricks that insurance companies and other third parties may try to use to make your life harder.

The sooner you get an experienced lawyer on your side, the better off you are in dealing with them.

Free Consultations for Personal Injury Cases

If you or a loved one have been injured in an accident, you may be entitled to financial compensation for the harm that you have suffered.

The best thing for you to do is call an attorney for a free case evaluation. The lawyer can learn more about the facts of your case and answer any questions that you may have during the free evaluation.

Call the attorneys at Rosenfeld Injury Lawyers at (888) 424-5757, or go online and enter your contact information for a free consultation to discuss your case.

You have the ability to take legal action when someone’s else carelessness has harmed you.

Free Consultation (888) 424-5757
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