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Texas Personal Injury News

Sunday, February 26, 2017

Top Defenses to Personal Injury Claims

Even the best personal injury claims, with the strongest possible facts, will undoubtedly be met with some sort of defense along the way. In many cases, possible defenses are presented during the negotiation stages prior to ever making it to the courtroom – often as a way to attempt to deter the plaintiff from continuing. However, our team of experienced personal injury practitioners is ready to meet and overcome any defenses thrown our clients’ way, which could include any of the following:

Defense #1: Contributory Negligence: In Texas, there exists an “affirmative defense” known as contributory negligence. To assert this defense, the defendant must take the position that “yes, this occurred, but the plaintiff was at fault too!” In other words, the plaintiff in some way contributed to his or her own injuries. In considering this defense, the fact finder (usually a jury) would review the evidence to determine if, but for any of the plaintiff’s own actions, the injuries could have been minimized or avoided all together. An example of contributory negligence in the car accident realm may be a plaintiff who was involved in a serious crash, but was found to be texting at the point of collision. It would then be up to the fact finder to determine whether the texting factor contributed to the plaintiff’s injuries. If a contributory negligence defense succeeds, the plaintiff’s ultimate damages award will be adjusted to reflect the plaintiff’s personal percentage of fault – known as proportionate responsibility.

Defense #2: Wavier: You know those pesky waivers you have to sign at every go-kart track and mini golf course? Well, they can come in handy (for the defense) in the event an injury occurs during the event, provided the waiver is executed properly and the language is clear and unambiguous. Not all waivers will be upheld under the law, so the defense is not a conclusive end to the case.

Defense #3: Statute of Limitations: The statute of limitations is a hard deadline plaintiffs must follow when deciding whether to file a personal injury claim. Missing the deadline can be disastrous to the case, and will generally results in a waiver of the claim. However, the statute can be “tolled” under certain circumstances – meaning, the time clock stops if certain conditions are present. For instances, minors generally have until their 18th birthday before the statute begins running. The clock may also toll if the plaintiff was mentally unable to advance the claim at the time the injury occurred.

Negligence and wrongful death both carry a two-year statute of limitations in Texas. If the claim involves medical malpractice, the time may be extended under the “discovery rule,” which allows injured patients additional time to “discover” the injury – as it is not always obvious right away.

Contact an experienced personal injury attorney today!

If you would like to discuss your possible injury claim, please contact the attorneys of Chandler Mathis & Zivley today: 1-877-739-7744.

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