As the victim of an accident, you know you have the right to seek compensation from the party that caused your injuries. Unfortunately, defendants in an injury case also have the right to fight back against these allegations, which includes using a defense strategy to either minimize how much compensation they pay or get the case dismissed entirely.
There are various defense strategies used to lessen how much compensation a victim gets, but some of the more common include blaming the victim for being partially at-fault, using the release of liability waivers, or even the statute of limitations rule.
It is vital for you to hire a personal injury attorney when filing an injury lawsuit. Not only do you need someone to help you navigate the rules and procedures, but you need someone experienced in fighting back against these common defense strategies so that you get the compensation you need.
The Most Common Defenses to Personal Injury Claims
There are numerous defense strategies out there, and while these are some of the most common, it does not mean an insurance company or defendant will use them. Likewise, do not assume that these are false strategies. In some instances, these strategies can work and might leave a victim without proper compensation – especially if they do not have representation when these are attempted.
Contributory Negligence Played a Part
One of the most common defense strategies is to blame the victim but not put the entire fault on them. Using what is referred to as “contributory negligence,” the defense will try to minimize their actions by saying that the victim played a role in the accident; therefore, contributing to their injuries.
When a plaintiff is partially at fault, their compensation may be reduced by the percentage of fault they were guilty of. In some cases, when that percentage is high enough, they are barred from seeking compensation at all.
In Kentucky, contributory negligence is referred to as comparative negligence. Luckily, that means even if a victim were partially at fault, he or she could receive compensation. Under Kentucky Revised Statute (KRS) 411.182, the judge or jury determines guilt based on the evidence presented. They will then assign a percentage to each party. Then, they will determine the amount of compensation (if any) awarded to the victim. The percentage of fault assigned to the victim would then reduce the award.
For example, the jury awards $100,000 to the victim but finds them 20% liable. Therefore, their $100,000 award would be reduced by $20,000; giving them $80,000.
Kentucky uses the pure comparative negligence law, which means there are no rules on the plaintiff’s fault. Some states will bar a plaintiff from seeking compensation if they are over 50% at fault, but in Kentucky, a victim could be more at fault than the defendant and still receive compensation.
It is important to note that this strategy can be devastating in a personal injury case. The defense will do what they can to put as much of the blame on the victim, and if successful, it may limit the amount of compensation.
Do not assume that just because the defense is trying to put a portion of the blame on you that you will lose out on your compensation. As a known defense strategy, your attorney will work hard to make sure you get the compensation you truly deserve.
Making the Claim for an Assumption of Risk
If you were engaging in a dangerous activity, the defense might try to say that you had an assumption of risk by doing so; therefore, they are not at fault for your injuries.
You Signed a Release of Liability
Often paired with the assumption of risk is the liability waiver. You might have engaged in a dangerous activity (for example, skydiving), but you signed a release of liability waiver with the company before taking the plunge.
Liability waivers mean that, once you sign it, you release the party from any liability (such as injuries in an accident), and you will forfeit the right to file an injury lawsuit. However, while they may use this as a defense, it is important to note that they do not always hold up in court and these waivers do not excuse gross or purposeful negligence. When someone is grossly negligent, no court would allow a liability waiver as a defense.
The Statute of Limitations Has Passed; You Cannot Seek Compensation
You are limited on how long you have to file a lawsuit – this protects you and the defendant. After all, no one should be able to file an injury lawsuit, seeking compensation, years after the fact. Witnesses and evidence might be lost, the defendant may no longer have the financial means to pay a judgment, and your case is much harder to prove.
The law puts limits on how long you have to file your personal injury claim. And if you file after that time limit, then you are barred from seeking compensation – no matter how much evidence you have proving the defendant’s guilt.
In the state of Kentucky, you have one year to file with the state’s civil court when seeking damages. If you do not file within that year, you will be unable to receive compensation. While 12 months is a long time, you’ll want to utilize a witness’s fresh memory, evidence that has not sat in storage, and your own memory about the incident.
Hire a Personal Injury Attorney Today
Whether you were injured recently or a few weeks ago, if you did not cause the accident, it is in your best interest to seek compensation from the at-fault party as soon as possible. Hiring an injury attorney can ensure that you have all of the evidence you need to prove your claim.
Get started by hiring a local attorney ready to fight for you. Attorney Seth Gladstein from the Gladstein Law Firm, PLLC, can help. Schedule a no-obligation consultation by calling the office or asking a question online. Video teleconferencing is available as well for those who need it.
