McCoy & Hiestand Attorneys at Law

With the personal injury claim, the defense might raise affirmative defenses. These are defenses that they must bring up at the beginning of the case or they risk losing them. For example, one of them could be the statute of limitations if the injured person waited longer than one year to bring their claim.

If not handled properly, an affirmative defense could be the end of a personal injury claim. That is why it is very important to hire an attorney to deal with any defenses that might be raised.

It is critical that an individual hire a Louisville injury lawyer to help with the claim. Personal injury lawyers are trained to handle claims; they work on them every day. There are so many complicated aspects of insurance law, the statute of limitations, and affirmative defenses that you need a professional on your side to navigate through the issues.

Plaintiff’s Defense

A personal injury lawyer has many ways to get around affirmative defenses. The best thing the injured party can do to help them is to see an attorney immediately after they suspect they have a claim. One of the largest affirmative defenses is the statute of limitations and if an individual breaches the statute of limitations, there is really not much an attorney can do for you.

When the defense tries to raise an assumption of risk claim, the biggest thing the injury lawyer looks at is whether the risk was a known or obvious risk and whether they were made aware that this risk could happen. This is a causation element.

For example, if a person goes into bull riding and is hurt by the bull’s horns; that might be an assumption of the risk because they knew that could happen. However, if it turns out that they got hurt because somebody threw a bottle and hit them in the head; that is not a risk that was assumed.

Assumption of Risk

An assumption of risk is essentially a defense to a negligence case. For example, if a person went bungee jumping and jumped off a bridge when the cable bounced back, it hurt their neck. The argument is that the defense did nothing wrong because the individual assumed the risk that the cable would bounce back.

Anytime the defense can show that the individual was well aware of what was going to happen and moved forward anyhow, they can argue assumption of the risk. An attorney knows how to defend against these arguments and pursue the best possible outcome for your case.

Elements of Proof

Generally, the elements of proof for an assumption of risk are that an individual was aware of, made aware of, or should have been aware of the risk that was involved in the activity. For example, bull riding. A person should be aware that they might get hit by a bull’s horn. The defense must show that the injury suffered was from the risk assumed.

Contributory Negligence vs. Assumption of Risk

Contributory negligence is a legal causation doctrine in some jurisdictions which questions whether the injured person was also negligent. For example, if there were a car accident and one person ran a red light and one person was speeding, the defense could argue that the injured person contributed because they were also negligent. Louisville does not question contributory negligence in personal injury cases because Kentucky is a comparative fault state.

The assumption of risk is different. The injured person is not negligent; they assumed the risk of a certain activity. With contributory negligence, you must show the injured person was also negligent. With an assumption of risk, you must show that the harm was a risk the person was aware of.

Prima Facie

Prima facie is a legal term that means the plaintiff has the burden of coming forward with evidence to show all of the elements of the claim. Essentially, can you show that you are injured and were injured because somebody else broke a rule or was negligent?

In making a personal injury claim, it is necessary to show the prima facie evidence that you were injured and that your injury was caused when somebody else breached a duty they owed to you. There are four elements to a personal injury case: duty, breach, cause, and injury. Having evidence for each one of those is a prima facie case.

For example, you are driving down the road and somebody runs a red light and hits your car in the side. A police report would show that you are not at fault. The other person ran a red light, coupled with medical bills because you had to go by ambulance to the hospital and have x-rays showing that you broke your leg. Those are all of the necessary elements for a prima facie case of negligence.

A Louisville lawyer is essential for your personal injury claim. They are the ones that help you gather the evidence, evaluate it, and present it to the insurance company to make sure they understand your position and get you the money you deserve. A lawyer can establish a prima facie case of negligence by collecting the necessary elements. For example, the police and witness reports that prove the injured person is not at fault. They must pull together the medical evidence to prove that the injuries you suffered were the result of someone’s negligence. The lawyer can help gather the evidence to prove your pain and suffering.

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