Defenses in a Personal Injury Case

October 8, 2021

If you or a loved one sustain an injury caused by another individual, company, or entity in West Virginia, you should be able to recover compensation for your losses. However, securing compensation can be challenging, particularly if the at-fault party puts up a fight and says they did not actually cause the injury.

The Injury Victim is Partially to Blame

One way that at-fault parties and insurance carriers try to get out from paying compensation is by blaming the injury victim for causing the incident. This may work to some extent, but it certainly does not mean that the injury victim will receive no compensation at all. West Virginia operates under a “modified comparative negligence” system. This means that an injury victim can still recover compensation so long as they are not 50% or more responsible for the incident. Compensation will be reduced based on their percentage of fault.

Assumption of Risk Defense

The defendant in a personal injury case may try to say that the plaintiff assumed all or part of the risk for an obviously dangerous activity. When this occurs, the defendant will say that the plaintiff should have known about the dangers associated with the particular incident and should not be able to recover compensation for injuries they sustained.

Pre-Existing Injuries

Defendants will often try to dig up pre-existing injuries that the plaintiff may have sustained. They will do this to try and show the injuries or pain and suffering the victim is experiencing are not due to the actual incident in question, but that they were already present. The existence of a pre-existing injury will not be enough to keep an injury victim from recovering compensation. Even if a pre-existing injury is aggravated by a new incident, the victim should still be able to recover compensation for their losses.

Waiver of Liability

Individuals often sign waivers before participating in certain activities. For example, it is not uncommon for individuals to sign waivers before bungee jumping, skydiving, participating in sports, going to a trampoline park, etc. If an individual signs a waiver, they may forfeit their right to seek compensation if they sustain an injury. However, waivers do not permanently bar a person from filing a lawsuit. If the defendant was grossly negligent or intentionally caused the injury or accident, the court may choose to ignore the waiver of liability.

Statute of Limitations

Injury victims in West Virginia have a limited amount of time to file a lawsuit against the person who allegedly caused them harm. The West Virginia personal injury statute of limitations is two years from the date an injury occurs. If a victim fails to file a lawsuit within this two-year time frame, they will likely lose the ability to recover the compensation they are entitled to. There are some exceptions to the personal injury statute of limitations, and we strongly encourage you to work with a skilled Martinsburg injury attorney who can help you sort through the deadlines for these claims.


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