Defenses in Personal Injury Cases

Posted by Ryan Russman | Oct 28, 2013 | 0 Comments

In a personal injury claim, negligence defenses are used by the defendants as a “blame-shifting” weapon to avoid having to pay for personal injury compensation. These defenses usually highlight the misconduct of the injured that contributed to the cause of the injuries.  If successful, the defendant could be fully or partially forgiven by the court.

Due to the complexity of these defenses, parties in personal injury cases often hire lawyers to represent them.  A New Hampshire personal injury attorney, for instance, could provide the parties with legal assistance in assessing the chances of winning the case if the accident happened within the state of New Hampshire.

Defending Personal Injury Claims Nature of the Negligence Defenses

Three basic rules apply to defending personal injury lawsuits. First, the defenses could only be used as a direct response to the allegations made by the victim. Second, a negligent defense only only applicable in cases where the victim's claim is based on the negligent action of the defendant.  These defenses cannot be used to excuse the defendant for his intentional action. Third, in cases where more than two parties are involved, it is important to determine who will assume the role of the defendant since a personal injury the defense can only be used by the latter.

The concept of negligence defenses is applicable in many states, including New Hampshire.  Typically, an NH personal injury attorney will gather reports both from the police and the doctors to make a complete list of the parties who could have caused the injuries due to negligence. Then, he will assess which of the available defenses could be brought against the injured person's allegations.

Unfortunately, NH state law does not provide detailed rules on the use of the defenses and the preparation of both the defense and the complaint often require the assistance of a personal injury attorney.  New Hampshire court opinions should be considered in assessing the likelihood of winning a personal injury claim.

New Hampshire Comparative Negligence

As mentioned above, several claims of the defendant's negligent action could be dismissed because of the victims' own misconduct that, at least partly, caused the injuries.  In New Hampshire, the courts follow the modified comparative negligence rule.

Under this rule, the plaintiff could only be awarded personal injury compensation if his fault does not reach 51%. Thus, a New Hampshire personal injury attorney representing the plaintiff needs to show that the defendant was responsible for more than half 50% of the accident. However, the plaintiff's personal injury compensation could be reduced by the degree of his or her negligent fault.

Assumption of Risk

Assumption of risk is another personal injury defense frequently used in a personal injury claim.  It means that the plaintiff was aware of the risks and fully understood the dangers of the activity he undertook.

For instance, if the plaintiff signs a written agreement releasing the other party from liability, it is a strong indication that the victim knew about the risks. Also, in a case where the injured voluntarily entered a high risk, barricaded area and ignored the warning signs at the entrance, it could affect his claim for compensation. Statistics show that New Hampshire courts are hesitant in denying personal injury claims based on this defense alone.

Assumption of risk is more difficult to prove than the aforementioned comparative negligence defense. In many states, including New Hampshire, the majority of cases end up in a personal injury settlement agreement because the parties wanted to avoid the cumbersome and time-consuming court procedure.

However, in cases where the parties cannot find resolution in settlement negotiations, it is necessary to consult a New Hampshire personal injury attorney to ensure that all defenses have been properly utilized and documented.

About the Author

Ryan Russman

Attorney Ryan Russman has dedicated his career to fighting for the rights of New Hampshire citizens. His practice, based in Exeter (Rockingham County) New Hampshire, is limited to cases involving DWI and DUI, other motor vehicle and criminal cases, and many cases involving personal injury. He is, however, best known as one of New Hampshire's leading legal authorities on DWI.


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