When you bring a personal injury claim in Utah, do not expect it to go unopposed. The party allegedly at fault (the defendant) has the opportunity to defend him or herself against liability for your injuries and losses. A defendant may try to use one or more defenses to argue against your claim. A personal injury lawyer can help you prepare for and combat common defenses.
Comparative Negligence
The comparative negligence defense argues that you, the plaintiff, caused or contributed to your own injury. This defense asserts that since the plaintiff is also to blame for the accident, the defendant should not be liable for 100% of the plaintiff’s financial damages. This is a common defense, as many accidents are not the sole fault of only one party.
Do not be discouraged if you believe you contributed to the accident. Even if the comparative negligence defense succeeds, you could still receive partial compensation from the defendant. Utah’s comparative negligence law states that as long as a plaintiff is less than 50% at fault, he or she can still recover compensation. The courts will reduce your recovery award by a percentage equivalent to your amount of fault. An attorney can help you limit your comparative negligence as much as possible to maximize your financial outcome.
Assumption of Risk
The assumption of risk defense asserts that you knew of the foreseeable risks of the activity that injured you. If you engaged in a dangerous activity with known risks, such as skydiving or bungee jumping, the odds of the assumption of risk defense are higher. You could also encounter problems if you signed a liability waiver before participating in an activity or event, such as joining a gym or attending a baseball game.
Liability waivers – both implied and explicit – could bar you from holding a defendant liable for an injury. A liability waiver has the power to protect a defendant from lawsuits based on negligence. However, a liability waiver does not protect a defendant from liability if the defendant was reckless, malicious, wanton or grossly negligent. Hire an attorney if you were injured during a dangerous activity, as you will most likely run into this defense.
Pre-Existing Health Conditions
Many plaintiffs have pre-existing health conditions and prior injuries that have already healed at the time of their accidents. Insurance companies often try to use pre-existing conditions as a reason to deny benefits. An insurance company may ask for your permission to access your full medical history using a Medical Authorization Release Form. Do not sign this form before taking it to an attorney. This may be a tactic to search for a pre-existing condition and deny benefits.
A pre-existing condition in itself does not bar you from recovering damages. Under the eggshell skull doctrine, a defendant has to take you as you are at the time of your accident – pre-existing conditions and all. Even if your pre-existing condition or an old injury made your injuries worse in an accident, the defendant will be responsible for the full extent of your losses. A lawyer can help you prove the injuries you are claiming are not pre-existing.
Statute of Limitations
A statute of limitations is a deadline for filing a personal injury claim. In Utah, the statute of limitations is four years for most types of personal injury lawsuits. If you fail to file your lawsuit within four years of your accident (or date of injury discovery), the defendant may use the expired statute of limitations as a defense against liability. With only a few exceptions, the courts will dismiss a case brought after the statute of limitations. It is important, therefore, to file your injury lawsuit as soon as possible.
For more information about common defenses against personal injury claims, as well as professional assistance preparing rebuttals for defenses, contact an attorney today.
