When you decide to move forward with a personal injury claim, your lawyer will work on your case with an aggressive two-pronged approach: proving your case and preemptively striking down the other side’s potential defenses. Depending on the details of your case, the defendant may use a variety of defenses to weaken your case. Our job is to destroy those arguments before they have a chance to lay down roots. Learn more about common defenses used in personal injury cases.

Comparative Fault

Comparative fault is the idea that the plaintiff contributed to their own injuries in some way. The goal of this defense is not typically to eliminate the defendant’s liability, but to reduce it. For example, in a slip-and-fall case, the defendant’s attorney may claim that the victim was partially responsible for the accident because they were using their cell phone and not paying attention when they fell. You need an attorney who can argue down your own liability to maximize your compensation.

Doctrine of Federal Preemption

In some situations, defendants use the doctrine of federal preemption to restrict tort liability and prevent plaintiffs from collecting punitive damages. The idea of federal preemption indicates that when a state law conflicts with a state law, the federal law takes precedence and the state law is displaced.

Contributory Negligence

The premise of contributory negligence is similar to the idea of comparative fault. In some states, the victim of an accident cannot recover any damages if they share any liability for the accident. This is far harsher than the concept of comparative fault, which simply reduces the plaintiff’s compensation. States that use the concept of pure contributory negligence completely eliminate a victim’s right to compensation if a jury finds that they are at all culpable. In these states, the defense simply needs to prove that the plaintiff was 1% responsible for the accident. Illinois is not a contributory negligence state.

Assumption of Risk

This defense argues that a plaintiff willfully chooses to take risks when they engage in a certain type of activity. For example, if someone is injured while playing football, the other side might argue that football is a contact sport and thus the plaintiff accepted those risks when deciding to play.

Note, though, that the level of injury must correlate with the level of assumed risk. For example, consider go-kart injuries. If you were bumped by someone who ran into you from behind and suffered a case of minor whiplash, this defense may work. However, if the go-kart blew up because of faulty manufacturing, that level of harm is obviously much higher than the risks a rider would choose to take when riding a go-kart.

Waiver by Estoppel

When one party is able to exercise their contractual rights but fails to exercise those rights or acts in a way that indicates that they will not use those rights, the other party may assume that the first party will not enforce those rights in the future. If this occurs and the second party later sues the first party, despite indicating that they would not do so, the defendant may use that to their benefit.

Family Immunity

Almost everyone would agree that lawsuits are not beneficial to the development of healthy family relationships. The concept of family immunity is based on this idea. Under Illinois law, parents and people acting in place of parents cannot be sued for tortious acts that injure their children if those acts were part of the parent-child relationship. For example, if a child slips and falls on a wet kitchen floor, the parent cannot be sued for that. Keeping the home clean is part of the parent-child relationship.

In loco parentis immunity is granted to those taking care of children in place of parents, including stepparents and, to a limited extent, teachers.

Preexisting Injuries

If you file a personal injury claim, you may find that the other party’s insurance company or attorney is suddenly very interested in your medical history and overall health. This comes down to an effort to prove that your current injuries were caused or worsened by the existence of preexisting injuries or conditions. If they can shuffle the blame to an injury you suffered earlier in life, they can limit or eliminate their own liability for your current injuries.

Statutes of Limitation

This is a common defense used in personal injury cases, which is one reason that you should immediately contact a personal injury attorney if you are hurt by someone else’s negligence. In general, the statute of limitations for a personal injury case in Illinois is two years. However, if the victim was younger than 18 at the time, the two-year clock does not start ticking until they are 18. There are similar exceptions for those with legal disabilities either at the time of the accident or after the accident.

  • Vehicle accident. Those hurt in car accidents must file within the two-year statute of limitations.
  • Medical malpractice. Those harmed by medical malpractice have two years from either the date of the injury or the date on which they should have reasonably known that an error occurred to file their claim.
  • Nursing home abuse. The same rules applying to medical malpractice cases are applied to nursing home injury cases.
  • Premises liability. People with slip and fall claims must file within two years of the date of the accident.
  • Defective product. A claim must be filed within two years of acquiring the defective product.
  • Work injury. If you are hurt while at work, you have three years from the date of the injury to file a claim for workers’ compensation.
  • Wrongful death. Claims for wrongful death must be filed within two years from the date of death.
  • Dog bite. Dog bite victims have two years to file a claim.

If you have been hurt because of someone else’s action or inaction, act quickly to protect your rights and fight for compensation. The team at Staver Accident Injury Lawyers, P.C. is here to help you. Call us at (312) 236-2900 or contact us online to get started.

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