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In a personal injury case, the plaintiff (accident victim) initiates a claim against the defendant.
Typically the lawsuit will state that the plaintiff was injured due to the defendant’s actions and that the defendant is liable for the plaintiff’s damages.
Usually, the defendant will have an attorney represent them. This attorney is called the defense lawyer.
In many cases involving car accidents, premises liability, and medical malpractice, the defendant’s insurance covers the incident. The insurance company will then provide an attorney to defend the case.
If there is no insurance, the defendant should hire a defense attorney to represent them.
After an accident, you should first seek medical attention. The next step should be to contact your insurance company if you have one.
It is important never to admit that the accident was your fault because any admission of wrongdoing will be used against you. You may think the accident is your fault when in reality, it was not. If this is the case, your admission of guilt will make your lawyer’s job much harder.
Once a personal injury lawsuit is filed, the defendant has to present a response, usually called an answer. In the response, the defendant will explain why they should not be held responsible for the plaintiff’s injuries and subsequent damages.
Generally, to defend against claims of negligence, your lawyer may argue one of the following:
The defendant’s attorney will attempt to prove that the plaintiff doesn’t have a strong case and that it should be dismissed.
Several defense strategies can be used in a personal injury case. A good defense attorney will use them, and a good plaintiff’s attorney will anticipate them. Here are some examples.
Usually, one of the first defenses argued in a personal injury case is that the plaintiff didn’t prove that the defendant’s actions fulfilled all of the necessary elements of negligence.
For instance, even if the defendant was careless in a particular scenario, if their behavior didn’t directly cause the injury, the plaintiff hasn’t proven an essential element of the negligence claim. The defendant’s attorney may ask for the case to be dismissed.
Each state has a set time period within which someone can bring a lawsuit, called the statute of limitations. If you have been injured in an accident in New York, you typically have three years from the date of the accident to file a lawsuit.
There are exceptions to this rule, but the defense can argue that the plaintiff doesn’t qualify for an exception.
If the court agrees that the plaintiff missed the deadline, the lawsuit will be dismissed.
If the plaintiff’s negligence played a part in the case, the defense will raise the doctrine of comparative negligence. This argument states that if the plaintiff was at fault, their awarded damages should be reduced.
In New York, pure comparative fault laws apply to personal injury cases. This law allows a plaintiff to recover damages as long as they aren’t 100% at fault for the accident. Otherwise, their damages are reduced by their percentage of the blame. For example, if the plaintiff was 20% at fault for the accident, the defense will argue that the amount they recover should be reduced by 20%.
Let’s say the defendant is at fault for an accident. Even in these cases, the injured person must try and reasonably lessen or mitigate their damages. If they don’t, the court might reduce the amount of damages they receive.
What if you slipped on a fruit peel in a grocery store but didn’t seek medical attention immediately, and your injury worsened? In this case, the court might reduce your compensation due to your failure to act promptly.
Suppose the plaintiff was engaging in an activity that is known to be dangerous, and the defendant didn’t do anything that made the activity more dangerous. In that case, the plaintiff might have a hard time recovering damages.
In this situation, the plaintiff “assumed the risk” of injury by participating in the dangerous activity. For example, you go snowboarding and break your leg going downhill. You probably won’t be successful suing the ski resort because you were doing something where you could reasonably expect to get hurt.
If you were injured in an accident and are thinking about pursuing a personal injury claim, it’s wise to consult with an experienced New York personal injury lawyer. Contact or call the Law Offices of Jay S. Knispel Personal Injury Lawyers at (212) 564-2800 to schedule a free consultation.
They will assess the facts of your case and guide you on the best path to recover the compensation you need from the at-fault party.
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