Last Updated on November 24, 2020 by Theodore Spaulding
Be careful! Many personal injury lawyers would have you believe that every injury victim will receive compensation for their injuries and losses. If that were true, there probably wouldn’t be a need for personal injury attorneys in Atlanta, Georgia, or anywhere else.
The truth of the matter is that lawyers are often needed because obtaining compensation for your injuries and losses are not automatic in a personal injury case in Georgia. When you file a claim with an insurance company or directly with the business at fault, these entities will assess the nature of the complaint that you have against them before deciding on whether to settle or to litigate.
If they believe that the case against them is strong, and what your asking for is reasonable, they may decide to settle out of court. However, insurance company attorneys may also use some proven legal defenses to mitigate or eliminate their clients’ responsibility.
Here we will look at a couple of the most common defenses in personal injury cases taken by the defense to try to defeat your personal injury claim. These are important defenses to know about as you pursue you compensation for your losses.
This defense is raised to limit the amount of damages owed or the even completely bar the plaintiff’s case. The goal is here is to put enough blame on the plaintiff for causing his or her own injuries.
In Georgia, so long as the jury finds the plaintiff 50% or less at fault, the plaintiff can recover damages against the defendant. However, the award is reduced by the percentage fault placed on the plaintiff.
For example, if an individual in a car is struck by a truck running a red light in downtown Atlanta, he or she might sue the trucking company for damages. However, the defense may try to blame the plaintiff for causing the accident by presenting evidence that suggests the plaintiff forgot to activate his or her headlights, contributing to the collision.
Lets say the jury believes the defenses argument but determines it was only 40% of the reason for the accident and awards the plaintiff $100,000.00 for her losses. The award is then reduced to 60% of $100,000.00 or $60,000.00.
On the other hand, lets say the jury believes the lack of headlights was 60% of the reason for the accident. In this situation, the plaintiff recovers nothing because she was over 50% at-fault of her own injuries.
Assumption of the Risk:
Another common defense tactic to try to bar any recovery for the plaintiff is to argue that the plaintiff was well aware of the risks of injury involved in the incident leading to his or her injuries and losses. It is raised when the plaintiff’s actions were such that it would have been clear to the plaintiff that injury would occur if he or she proceeded as planned.
For instance, if the plaintiff was warned of the danger, then proceeded to do the activity anyway, and was injured, assumption of the risk will bar the plaintiff’s claim. This defense is common in product liability cases or industrial accident cases.
This is the most common defense tactic used in Georgia personal injury cases. Here the defense is not arguing the plaintiff is liable. Instead, the defense is saying that the defendant’s conduct may have been negligent but did not cause the injuries the plaintiff is complaining of and seeking compensation for from the jury.
This is also called causation—meaning “did the negligence complained of really cause the plaintiff’s alleged injuries?” The defense will comb through your past medical records decades before the incident in question looking for any medical condition or complaint that it can point to as an argument that your current injuries had been there all along.
The Spaulding Injury Law Atlanta injury lawyers are very familiar with defense tactics to try to minimize an injury victim’s legitimate injuries and losses. With over two decades litigating and trying cases involving all types of personal injury cases, our personal injury lawyers anticipate these defense tactics day one and implement various strategies to counteract them at trial.
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For close to 15 years, Mr. Spaulding has helped victims of negligence across the state of Georgia resolve personal injury disputes, and he’s received a remarkable number of awards and honors from the legal community recognizing his commitment to clients and to the metro-Atlanta area.
As an undergraduate, Mr. Spaulding belonged to the Phi Beta Kappa honors fraternity at the University of Georgia, and he obtained his legal training at the Georgia State College of Law, where he clerked for the Honorable Judge Rowland Barnes of the Fulton County Superior Court. Mr. Spaulding has also worked for the Securities and Exchange Commission’s Atlanta Enforcement Division. Since 2005, he has dedicated his career to helping the injured victims of negligence and their loved ones win justice in Georgia’s personal injury courts.