After an injury accident, such as a car accident, you might wonder if you have a personal injury claim against the other party. If you hesitate, however, you might find an unpleasant surprise waiting for you—they may have beaten you to the punch by filing a claim against you first. If this happens, do not despair. There are ways to fight back.
Following is a list of some of the various legal defenses against a personal injury claim. Focus on the defense or defenses that are most relevant to your case.
Expiration of the Statute of Limitations Deadline
The statute of limitations deadline sets the deadline by which you must file a lawsuit, settle your claim, or forever hold your peace. In most cases, the statute of limitations deadline is two years after the accident in Arizona and three years after the accident in New Mexico. If you are the defendant and the plaintiff has violated the statute of limitations deadline, you win.
Both Arizona and New Mexico are “pure comparative negligence” states. This means that a court will assign each party a percentage of fault and subtract that percentage of fault from the respective party’s compensation.
Assumption of the Risk
“Assumption of the risk” is a defense you can plead when the other side knowingly engaged in an activity that carried risks they were aware of (or should have been aware of). Your claim would be that they are responsible for their decision to engage in that activity. This defense is especially strong if the opposing party signed a waiver of liability.
No matter how negligent you may have been, you are not liable for any injuries or losses that your negligence did not cause. Even if you were drunk driving at the time of the accident, for example, you may not be liable on that account if even a sober and responsible driver would have experienced the same accident. Lack of causation = no claim.
The “pre-existing condition” defense is a variation of the “no causation” defense. Your claim would be that the opposing party’s injuries predated the accident and that they are just using the occasion of the accident to get you to supply them with free medical treatment.
“Act of God”
Even an atheist defendant can plead an “Act of God” defense if the accident was caused by a natural phenomenon such as earthquakes or weather.
Insufficient evidence is a general denial that the plaintiff’s evidence is sufficient to establish your liability by the “preponderance of the evidence” standard.
This is a variation of the “insufficient evidence” assertion. If the evidence is inadmissible under the applicable rules of evidence, it can’t count against you. An expert witness might be unqualified, for example.
Failure to Mitigate Damages
You have no duty to compensate an injured party for losses that they could have avoided through the exercise of reasonable care. For example, why should you bear liability if the plaintiff’s injuries worsened because they failed to follow the doctor’s instructions?
Suppose the opposing party is your co-worker claiming against you for a workplace injury. In that case, you might claim workplace immunity based on the sufficiency of workers’ compensation to compensate the opposing party.
This is simply a strategy to shift blame to another party. “I wasn’t the one driving” can be a winner, for example, if it is true and you can prove it.
If you have declared bankruptcy, especially under Chapter 7, the bankruptcy court might put a “stay” on any personal injury claim against you. A stay would suspend proceedings against you.
A counterclaim is where you hit back with a claim of your own against the plaintiff. With sufficient evidence, you could not only defend yourself against the opposing party’s claim, but could actually demand compensation from the opposing party.
Claims and counterclaims are not enough. Whatever you assert, you must back up with admissible evidence. Following are some examples of evidence that your lawyer can help you gather.
- Photographs of the scene of the accident, injuries, property damage, and anything else that is relevant.
- Videos: This could include traffic cameras, CCTV footage, cell phone videos, and more.
- Medical records: Medical records are among the most credible of all forms of evidence, as they are compiled by professionals. Medical records could detail your injuries, treatments, prognosis, and billing.
- Police reports: Although generally not admissible in court, police reports often come in handy in settlement negotiations.
- Eyewitness accounts
- Testimony and written reports from expert witnesses. An experienced personal injury lawyer should enjoy strong relationships with credible expert witnesses, such as accident reconstructionists.
- Physical evidence, such as bloodstained clothing.
- Medical examination reports and testimony from a doctor.
- Weather reports, if the weather is relevant to your claim.
- Vehicle damage reports from a garage or other professional outfit.
- Driving records. In a car accident, each driver’s driving history might be relevant.
- Cell phone records, if you need them to establish that the other party was texting while driving or talking on the phone at the time of the accident. This evidence doesn’t just apply to vehicle crashes.
- Maintenance and inspection reports for vehicles and equipment. For instance, these could support a claim that inadequate maintenance caused the accident.
- Financial records, which should detail expenses for which you will require compensation. They should also detail your loss of earnings and, perhaps, your anticipated future lost earnings.
- Any waiver of liability signed by the other party (for an assumption of risk defense);
- Diaries and journals that detail your personal experience arising from the accident or your injuries.
- The shoes you wore the day of a slip and fall accident.
- Toxicology reports, which might tell the court what intoxicants, if any, were in your body at the time of the accident.
- A company handbook, as it could help determine whether you were violating company rules at the time of the accident.
Hundreds of other items of evidence might also prove useful.
You Probably Need a Trained Personal Injury Lawyer in Your Corner
If the other party to an accident has taken the offensive against you, you probably need some help fighting back. You might also want to turn the tables on the opposing party by filing a counterclaim against them. A skilled personal injury attorney can help you do all these things and more, contact Curiel & Runion Personal Injury Lawyers at (602) 595-5559 or contact us online for a free consultation. We serve clients in Phoenix, AZ and Albuquerque, NM.