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What are the Typical Defenses in a Personal Injury Case?

August 28, 2015 Construction Accidents

If only we could read the minds of other people! Unfortunately, not many people can be read like books, nor do they speak out and let others know about their intentions. If you are planning to file a personal injury lawsuit, it helps if you know about the likely defenses the defendant might claim to wriggle out of the case.


If you are at fault, you may not be eligible for full compensation.

You can be better prepared and gather relevant evidence that will bust their claims and boost your chances of securing a favorable outcome in your case. The following are the typical defenses in a personal injury case in New York that RMFW Law handles with acumen:

The plaintiff had a role in the accident

Lawsuits are about blame games. So a typical defense in a personal injury case is to lay the blame at the plaintiff’s door. Depending on the nature of the accident and to some extent, the evidence that has come to light, the defendant will try to put the blame wholly or partly on the plaintiff. If you are to be blamed even partially for your role in the accident, you cannot claim full compensation.

In this context, it is worth mentioning that according to the state of your residence, the amount of compensation you may receive will be determined by the “comparative negligence” or the “contributory negligence” clauses.

Most states follow the “comparative negligence” standard to calculate the damages the plaintiff is entitled to receive. According to this standard, you are entitled to receive compensation equal to the degree (calculated in percentage) of your fault in the accident. So if the court of law decides on the basis of the evidence presented that you are 30% at fault for the accident, you will receive compensation that is 30% less than the total worth of the damages you had sought.

Certain standards

If your state follows the “pure comparative negligence” standard, you will receive compensation as long as you are not totally responsible for the accident. This means that you can recover damages proportionate to the degree of your fault, which may be anywhere between 1 and 99%. If your state follows the “modified comparative negligence” standard, you are entitled to receive damages only if the degree to which you are at fault for the accident is 49-50% or less.

The “contributory negligence” standard is stricter when it comes to your chances of receiving compensation for the damages you have incurred in an accident. According to this clause, you are not entitled to be compensated for your losses if you are at fault, irrespective of the degree, for the accident. Rosenberg, Minc, Falkoff, and Wolff, a New York City personal injury law firm, will explain all this to you in detail so you understand your options.

The plaintiff was aware of the risks involved in the activity that led to the accident.

This is a common defense pleaded by the defendant in a personal injury case. In most states, you are not entitled to receive compensation for your losses if the court of law deems that you knew about the risks involved in the activity and willingly took part in it. This “assumption of risk” standard also contains in it the condition that the damage suffered by you is closely related to the type of risk you had assumed to be inherent in the activity.

A clear example

For instance, if you were injured by a chunk of concrete that broke off from the ceiling while working out on a rowing machine at the gym, the defendant (the gym owner and/or the owner of the premises) cannot claim that you were “aware” of this risk. So you are still entitled to receive compensation and RMFW Law will make sure that you receive your just desserts.

Now that you know about the common defenses in a personal injury case in New York, you can go about preparing for the case—collecting evidence, analyzing them, and creating a fool-proof stand that will improve your chances of receiving the compensation you deserve. RMFW Law will certainly help you in this regard every step of the way.