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Common Defenses Against Your Personal Injury Claim

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When someone else plays a part in your injury, it only seems fitting that person or entity should be held liable for all of your injury-related losses. However, the other entity has the right to defend itself against liability. This blog is here to help you identify common defenses a person may use in a personal injury case to lessen or avoid their liability.

Assumption of Risk

Assumption of risk refers to the legal doctrine in which a person cannot recover damages when they willingly exposed themselves to a known danger. To use the assumption of risk, the defendant must successfully demonstrate the following:

  • The plaintiff knew of the risk involved
  • The plaintiff voluntarily accepted the risk in a verbal or physical agreement.

If an injury was not foreseeable, the assumption of risk defense will most likely not be an option. For example, if you climb a tree, you assume the risk of falling. However, if they’re struck by a vehicle that veered off the road, it is not considered a foreseeable sort of injury. Therefore, an assumption of risk defense will most likely not apply to your case.

Contributory Negligence

Contributory negligence is a defense to a tort claim based on the plaintiff's negligence. Some states follow these guidelines, but California relies on comparative negligence. Jurisdictions that follow this rule bar the plaintiff from receiving damages if the plaintiff was negligent in the slightest way.

Comparative Negligence

The majority of states follow comparative negligence guidelines. Comparative negligence has two approaches:

1. Pure Comparative Negligence

California follows a “pure” comparative negligence rule, where the negligent plaintiff can recover damages even when their negligence exceeds the defendant’s negligence. The court takes the plaintiff's injury into consideration and then reduces their recovery based on their contribution to the injury.

2. Modified Comparative Negligence

There is also “modified comparative negligence” in which an injured plaintiff can receive compensation as long as they were less than 50% responsible for the accident. If the plaintiff is half responsible for the incident, they recover nothing.

Pre-Existing Conditions

The defendant can argue that the injury was something the plaintiff had before the accident. You can expect the defendant to seek out your medical records to prove you’ve received care before your accident happened. They may also seek testimony from your physicians or doctors.

It’s important to note that the plaintiff can recover damages if the accident worsened a pre-existing condition. The plaintiff can use their medical records to prove that the accident required additional treatment that would have been unnecessary without the accident.

California follows the “eggshell” plaintiff rule, which applies to victims with pre-existing conditions. In this rule, the defendant is liable for the plaintiff’s injuries even if they are especially exposed to harm.

Waivers or Release Agreements

It’s essential to read the fine print before signing a waiver or contract, as you may not be eligible to sue the other party. It's common for plaintiffs to sign away their rights to sue because the release of liability was hidden in their waiver or contract.


There are some situations in which a waiver can be voided. If the waiver was too hard to understand, it might not uphold in court, as it doesn’t provide readers with honestly about foreseeable risks and assumption of liability.

The waiver can also be void if it is fraudulent. Suppose it contains inaccurate information about the risk a patron usually experiences. Had the person not known the risks, they may not have participated in that activity, which would have avoided the injury.

If the person filling out the waiver is under the age of 18, the waiver or release form cannot be accepted. If it is accepted and a minor is injured, the party responsible for providing the waivers or release forms will be held liable.

If the negligent party was considered negligent, the waiver will then no longer be valid, and the court will allow you to proceed with the case.

Statute of Limitations

Each state has a different time limit for filing a lawsuit. This time limit is called the statute of limitations. The statute of limitations for California is two years from the accident or injury. If the injury was not yet detected right away, the injured person has one year from the date the injury was discovered to file their claim. There are some situations where you may not have immediately known that you were injured. Delayed knowledge of injuries is more common in product liability and mesothelioma cases. If you file within the statute of limitations, the defendant may try to prove that you knew about your injuries more than two years before you filed the case.

If you missed the statute of limitations, your chances of a claim are slim. The deadline can be extended in some cases, but it’s unlikely.

How We Can Help

Recovering damages can be difficult after a personal injury, which is why we recommend seeking legal counsel. These common defenses can affect your ability to receive compensation. We can assist you with proving who is at fault and what damages you need to receive to recover from your injury. If you or a loved one have been the victim of someone else’s negligence, you may be entitled to financial compensation.

Once you have received medical care, visit our website or call the Biren Law Group team today at (310) 896-4345 for a free consultation. We have the resources and expertise to help you, no matter how complex your situation is.