If you are considering filing a personal injury claim or have already filed one, you may not be aware of what to expect from the opposing party. After all, the defendant may have the best personal injury defense attorney in California by his or her side or he/she may not have any viable defense whatsoever.
Forewarned is forearmed, or so they say, which is why you should learn about the common defenses raised by defendants in personal injury lawsuits in California. We invited our personal injury attorney in Los Angeles from Law Offices of Howard Craig Kornberg to outline the defenses that may limit the value of your claim or even bar you from recovering damages.
Proving the plaintiff was partially at fault
Whenever someone files a personal injury lawsuit, the very first thing the defendant will do is hire a Los Angeles personal injury attorney to determine fault and prove that the plaintiff was also at-fault for his or her resulting injuries and damages.
Even if the defendant manages to prove that you were partially to blame for the accident, in no way does it mean that you will be barred from seeking compensation. That’s because California follows the legal doctrine of pure comparative negligence, which means that your financial compensation will be reduced by the percentage of your own fault. Remember: partial liability does not result in the loss of right to recover damages caused by the other party’s fault.
Sure, proving that the plaintiff was partially at fault for the accident is not going to help the defendant escape liability, though it will reduce the amount of damages the plaintiff can recover in his or her personal injury lawsuit either through a settlement or award.
Pure comparative negligence as a personal injury defense
“How does the legal doctrine of pure comparative negligence work?” you may be wondering. Let our Los Angeles personal injury lawyer explain. Let’s say that you were in a car accident caused by a drunk driver who was speeding. An accident reconstruction investigation shows that although the drunk motorist was primarily at fault for causing the crash since he was intoxicated and traveling above the legally allowed speed limit, you were also partially to blame for the crash since you made an unsafe lane change prior to colliding with the drunk motorist’s car.
In the course of the investigation, you were found to be 20 percent at fault for the crash, while the drunk driver was deemed 80 percent at fault. Meaning: any compensation you receive as part of your personal injury claim will be reduced by 20 percent, which is your degree of fault.
But how does it translate to a dollar value? Let’s say your total damages, which included medical expenses, pain and suffering, and loss of income, among other things, amounted to $10,000. Because you were 20 percent at fault for the crash, your compensation will be reduced to $8,000.
Assumption of risk defense in a personal injury lawsuit
But claiming that you were partially at fault for the accident is not the only defense you may encounter in a personal injury lawsuit. Another common personal injury defense is “assumption of risk.” Our experienced personal injury lawyer in Los Angeles explains that the opposing party can argue that you “assumed the risk” of a bodily injury or death by willfully participating in an activity that exposed you to the risk of bodily injury or death.
More often than not, you will encounter this defense in a personal injury suit stemming from injuries caused by contact sports such as football, soccer, basketball, and others.
More often than not, the “assumption of risk” defense is not applicable in a personal injury lawsuit stemming from a car crash, motorcycle accident, pedestrian accident, or any other motor vehicle accident, because motorists in California have a duty to drive safely and obey traffic rules to prevent accidents.
If you are thinking about filing a personal injury lawsuit or have already filed one, consult with an attorney from Law Offices of Howard Craig Kornberg to be prepared for any defense. Call our offices at 310-997-0904 to get a free case evaluation.