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  • Writer's pictureRobert Schuerger II

Potential Defenses Against Your Personal Injury Claim: What to Prepare For

A personal injury case is when a victim tries to recover damages from the person they deem responsible, but the other party has the right to defend themselves.

An insurance company has the responsibility of providing a defense attorney for policyholders if they are accused in a personal injury claim and are likely to respond with a defense.

What are the common defenses used against personal injury claims, and what do they mean for victims?

What Are the Common Defenses in Personal Injury Claims?

What Are the Common Defenses in Personal Injury Claims?

Contributory Negligence

Contributory or comparative negligence are very common defenses in personal injury claims. The defendant does not deny they were at fault, but they claim that the victim was also partially to blame for their own injuries.

In a car accident case, a drunk driver who runs a red light is unlikely to have any way of saying they were not responsible.

However, if the other party was speeding at the time, they could claim that they were also at fault.

If they had not been speeding, maybe there would have been time to avoid a collision, and the injuries would not have been as severe.

A defendant's liability must be considered more than half of the cause for the plaintiff to successfully claim compensation.

In Texas, the compensation owed by the defendant decreases for every percentage of the blame that lies with the victim.

Duty of Care Defense

The basic rules of personal injury claims state that a person or party must have had a clear duty of care that was breached in some way, and the breach directly caused the accident. Without duty of care, there can be no liability.

A common example of this is when an injury happens on someone else's property.

The property owner can be held liable, but they could defend themselves by saying the victim was a trespasser and had no right to be there.

Liability Waiver

If an injured plaintiff had an accident when partaking in a dangerous activity, the defendant may claim that the victim signed a liability waiver and is, therefore, unable to claim damages.

This defense is not always valid- even if there was a waiver in place.

An example of when it could hold up is if the victim injured themselves in a trampoline park or something similar- not because of faulty equipment, but because of their own actions.

By agreeing to sign a waiver, they took on the risk of injury.

There are many situations where liability waivers are invalid. They do not apply to children, nor are they valid if the waiver is built-in to the conditions or ticket purchase- in amusement parks, for example.

Assumption of Risk Doctrine

Assumption of risk is often confused with liability waivers, but it is not the same defense.

An assumption of risk defense applies when someone is injured doing something that carries a risk of injury- such as taking part in a sport or partaking in a potentially dangerous event.

The idea is that by getting involved, the victim voluntarily exposed themselves to the risk of injury, and the defendant should not be held liable just because they got hurt.

Pre-Existing Conditions or Injuries

Another possible defense is to say that the plaintiff's injuries pre-date the accident, or at least pre-date the part the defendant played in the accident.

If a defendant is being asked to pay for the plaintiff's medical bills as part of the settlement, they may argue that they do not relate to the injury from the accident.

Expenses relating to injuries or conditions that have nothing to do with the accident cannot be claimed in a personal injury settlement, and a defendant may use this defense to reduce the amount they have to pay.

Superseding Cause

To be able to hold a party liable, proof must be shown that the negligence was the direct cause of the injuries sustained.

If an intervening act happens (something between the negligent act and the injury happening), the defendant could argue that it could be to blame instead of them.

Affirmative Defense

An affirmative defense is a little controversial sometimes.

It is essentially a defense in which the negligent party does not deny their responsibility, but they say there are other factors at play that mitigate their liability anyway.

The best-known example of this is the insanity defense- which, although rarely applicable in a personal injury case, helps explain what this type of argument is all about.

Statute of Limitations

If the plaintiff's claim is made after the statute of limitations has expired, the defendant has every right to refuse to accept the claim.

In Texas, the statute of limitations on personal injury claims is two years from the date of the accident.

Preparing for Defenses in Personal Injury Cases

It pays to be prepared. Knowing the possible defenses that could be used can help victims be ready.

Along with their attorneys, they can prepare responses to anything they believe might cause an issue- so they are ready to hit back fast and strong when the time comes.

A good lawyer will study the case to look for gaps and use their experience and understanding of personal injury law to pre-empt what the personal injury lawyers in Nashville TN are likely to do.

Working with a team that knows all the ins and outs of common defense strategies in personal injury claims is hugely beneficial for that reason. They will help with gathering evidence for your personal injury claim.

Why Hire a Personal Injury Lawyer?

Why Hire a Personal Injury Lawyer?

Personal injury attorneys know the types of defenses that are likely to come up and can prepare victims for what comes next. They will consult on how to win your personal injury claim.

No matter what the negligent party's defense attorneys come back with, they can respond with a strong and compelling argument on the victim's behalf.

If negotiating doesn't work, the next step is to file a personal injury lawsuit. If that happens, it is even more important to have an experienced personal injury attorney to fight the victim's cause.


Working with the right personal injury lawyer can help victims prepare for defenses to their claims and fight back in the best way.

Schuerger Shunnarah Trial Attorneys go to war for Nash injury victims with passion, dedication, and relentless attention to detail to ensure they get the justice and compensation they deserve.

Arrange a free consultation today with a legal team that fights every step of the way and acts as the first line of defense in personal injury claims and personal injury lawsuits.


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