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How You Can Combat the Top 5 Most Common Defenses to a Personal Injury Action

When it comes to defenses to civil liability, we’ve heard it all. If you are thinking about filing a personal injury action, perhaps you are curious as to whether there are any possible defenses to your action – which is a common opening question by many clients. There are a handful of blaring, obvious defenses that we can help you recognize, and there are others that defendants often raise just to give it a try. While ethics rules prevent defense counsel from frivolously filing defensive pleadings and motions, many defensive strategies involving throwing a bunch of defenses at the wall to “see what sticks.” If the defendant in your case tries this strategy, rest assured we are prepared to handle any and all attempts to limit, avoid or dismiss your claim for money damages. The following list details some of the most common defenses we see and how each might apply to your case.

#5 – Statute of Limitations

Under California law, personal injury plaintiffs have just two years from the date of the accident to file a claim. Failure to file within the time period serves as a defense and allows the defendant to avoid liability completely. However, there are defenses to this defense, including a concept known as “tolling,” which adds additional time in the event the plaintiff suffered from mental illness or spent significant time out of the jurisdiction.

#4 – Jurisdiction

Jurisdiction defenses can be complex or quite simple. In general, the court must have jurisdiction over the person, known as personal jurisdiction, as well as jurisdiction over the subject of the case, known as subject matter jurisdiction. The defendant must raise a defense to personal jurisdiction in his very first filing with the court while a defense to subject matter jurisdiction may be raised at any time in the case.

#3 – Failure to State a Claim

A plaintiff must state a claim upon which relief may be granted. What this means is that a plaintiff’s complaint must contain facts and arguments that can lead to relief under California law. If there are no laws available to redress the claim, the defendant may try to file a “general demurrer,” which operates to dismiss the case. Many defendants try this sort of “catch all” defense, however our attorneys will make certain your complaint adequately addresses the facts of you case and the applicable California laws.

#2 – Failure to Join a Required Party

Some personal injury actions, such as injuries arising from a multi-car pileup, involve a number of plaintiffs and defendants. If a plaintiff fails to name a certain defendant whose presence and participation in the case is required to ultimately resolve the claim, the defendant may attempt to dismiss the case. Rest assured, however, when you work the attorneys of the Law Office of Nelson Barry, your case will be filed properly with the correct defendants named from the outset.

#1 – Comparative Negligence

In some cases, the plaintiff is at least partly at fault for his resulting injury. For instance, imagine an auto accident wherein the defendant was text messaging while driving. Probably negligent. Imagine also that at the time of the accident, plaintiff was driving without his corrective lenses in violation of the terms of his license to drive. In this case, the jury would likely find the defendant was negligent, but it could also find the plaintiff contributed, at least a little, to his resulting injury. Perhaps if he had been wearing his lenses, he may have seen the other driver and been able to avoid the accident. This concept is known as comparative negligence and can result in the court adjusting a plaintiff’s award by a certain percentage congruent with the plaintiff’s contribution to the injury.

Contact an experience San Francisco personal injury attorney today

If you are considering a personal injury action or are concerned about possible defenses to your claims, the attorneys of the Law Office of Nelson Barry can assist you with determining whether the facts of your case suggest a possible defense. For more information or to schedule a consultation, call 415-587-0550.

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