When you file a personal injury lawsuit, expect the defendant to fight back. The defendant will have a lawyer, often provided by their insurance company, and will mount a defense. You can be prepared for all possible defenses. You can plan ahead and limit the ways the defendant can deny responsibility.
If one or more defendants have insurance, then their insurer will provide a legal team. Insurance policies require the insurance company to protect the policyholder from claims of liability. The insurance company must defend its policyholder vigorously.
If you claim the defendant was negligent, you have to establish the defendant had a duty of care toward you. In some cases, the defendant might claim this isn’t true. They might state they had no legal duty to act a certain way toward you. For example, a property owner might claim you were a trespasser, and they had no responsibility to keep you safe.
A very common defense is “you are at fault too.” The defendant might claim you also were negligent at the time of the accident. This defense triggers New York’s pure comparative negligence rule. The jury assigns a percentage of fault to each party involved.
You might be 10% at fault, while the defendant is 90% at fault. The fact that you were partly to blame does not stop you from winning compensation. In New York, you can be more than half at fault and still recover damages. But the amount of compensation you receive will be reduced by your percentage of fault.
To win compensation, you have to prove direct and proximate cause. Proximate cause means there is a straight line of causation from the defendant’s negligence to your injuries.
The defendant might claim another event happened that broke that straight line. An event that took place between the time of the defendant’s negligence and your injuries is an intervening act. If that event was significant enough and not a foreseeable risk of the defendant’s action, then it could be to blame for your injuries instead of the defendant.
Such a significant event is known as a superseding cause. The jury will decide whether an intervening act supersedes the defendant’s liability.
The defendant might claim they aren’t liable because you knew the risks of what you were doing. The assumption of risk doctrine protects places to allow people to participate in a potentially risky or dangerous activity, like playing or watching a sport.
The defendant will say you knew there were risks involved, and you voluntarily exposed yourself to those risks. If the jury agrees with this defense, you will be denied compensation. If the jury partly agrees, then your compensation could be limited due to comparative negligence.
When you pay to do something potentially dangerous, like go to a trampoline park, you might have to sign a liability waiver. Or, some establishments place a liability wavier on the back of your ticket and say you agree to it by paying the admissions price. This is the “fine print.” The liability waiver says you agree not to sue the business for negligence if something goes wrong.
In New York, whether a liability waiver is valid depends on several factors, including several statutes that make certain liability waivers unenforceable. If you signed a waiver in conjunction with paying for admission to a recreational activity, like a pool or gymnasium, the waiver is void. Also, neither a minor nor their parents can waive their right to sue someone for negligence.
Years ago, family members couldn’t sue each other for injuries. This type of defense was created when a child tried to sue a parent. However, New York later got rid of the family immunity defense. A relative can’t try to defend themselves against your injury claim because of your relationship.
The defendant might claim that the injuries you allege in the lawsuit existed before the accident. When you pursue a personal injury claim, you can only ask for compensation for the harm the defendant’s negligence caused you. You can’t be compensated for injuries that existed before. The defendant might claim you had pre-existing injuries to reduce their liability or win the lawsuit completely.
New York has a deadline for how long you have to file a lawsuit. The statute of limitations for most personal injury claims is three years from the date of the injury. If you file after the statute of limitations runs out, the defendant can immediately ask the court to dismiss your case.
Another reason the statute of limitations tolls is for minors. Minors have three years from the date of their 18th birthday to file a lawsuit.
Our team at Hecht, Kleeger & Damashek, P.C. has decades of collective experience handling injury claims, including personal injury, premises liability, product liability, medical malpractice, and wrongful death lawsuits. We know how defense lawyers think. We thoroughly investigate the claim and evaluate how the defendant is likely to fight back. We prepare the strongest possible argument for trial, including ways to respond to common defenses.
Talk with us about how to prove your injury claim and respond to common defenses in court. Reach out to us through our online form or call (212) 490-5700. We offer free consultations, and we work on a contingency fee basis. You don’t owe us our fees unless we win you compensation.
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“I cannot recommend Jon Damashek highly enough. I attribute the favorable outcome of my case to his consummate and tireless dedication and tenacity. Just as important, he was truly there with me every step of the way. He was very…