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Georgia Personal Injury Claims: Commonly Asserted Defenses

October 27, 2010

If you are seriously injured by the careless or intentional conduct of another, you have a right to seek legal compensation for your injuries. The right to seek legal compensation for personal injuries often means the difference between having massive medical costs paid for along with compensation for your past and future earnings versus a severe financial crisis for your entire family.

There are many types of personal injury cases including the following:

• Auto Accidents

• Trucking Accidents

• Bus Accidents

• SUV Rollover Accidents

• Bicycle Accidents

• Pedestrian Accidents

• Railroad Accidents

• Slip and Fall Accidents

• Inadequate Security Resulting in Injuries

• Medical Malpractice

• Defective Products

• Criminal Attacks or Sexual Assaults

• ATV Accidents

These are just a few common types of personal injury cases that can create a right to legal compensation under Georgia personal injury law. At Montlick and Associates, we have limited our practice to personal injury claims and have represented those throughout Georgia in such cases for over 37 years. There are many defenses that are often asserted by a defendant and their insurance company in a personal injury case. It can be helpful to understand the types of defenses that may be used to try to avoid liability for injuries inflicted on a personal injury victim.

Statute of Limitations: This is one of the most important defenses that may be raised because it typically results in a complete defense. There are strict deadlines that govern how long an injured person has to file a complaint which initiates a personal injury case in court.  If the statute of limitation is not met, it will almost always be a complete defense. It is imperative that if you have been injured by the conduct of another that you seek immediate legal advice to avoid statute of limitations issues.

Contributory Negligence: A contributory negligence defense basically means that you contributed to your own injuries because you failed to take reasonable care for your own safety. The court apportions fault between you and the defendant and if your fault is 50% or greater this constitutes a complete defense to recovery. However, if you have some fault, such as, 30% fault your damages are reduced by 30% of what the court would have awarded you.

Failure to Comply with Governmental Claims Acts: When a public entity such as a city, town or state government contributes to an accident, special deadlines, rules and procedures apply. Failure to follow these special rules can be a complete defense for the public entity whether city, county, state or federal government or agency. These special acts often include notice requirements that compel promptly filing a claim which provides notice to the governmental agency. It is important to seek legal advice from an experienced Georgia personal injury attorney to ensure that such notice procedures and time limits are met.

Pre-existing Condition: A defendant essentially argues that a person's injuries already existed prior to an accident. If the injury was pre-existing and was not a result of the defendant's careless or intentional actions, then the defendant is not legally obligated to compensate a person for such injuries. However, if the conduct aggravated an injury or made the injury worse, the at-fault party may still be liable.

Assumption of the Risk: There are certain activities that are inherently dangerous no matter how careful one is when participating in the activity. Sometimes a defendant may claim that you assumed the risk of participating in such an activity. This assumption of the risk may be express or implied. For example, a wake boarder may assume the risk of being injured when he performs stunts behind the boat but not for injuries during a boat crash. The prior injuries are predictable based on the inherent danger of the activity while the latter injuries are not. This is a very complex legal issue so you should contact an experienced Georgia personal injury attorney if you have questions about whether you have assumed the risk of a particular activity.

Waiver: Sometimes a person will be asked to sign a waiver of liability which specifically defines the risk posed by an activity and indicates that the person who engages in such activity is aware of the risk and understands that he or she is assuming responsibility for one's own injuries. A waiver of liability may often be asserted as a defense, but many times the waiver is not sufficient to shield a party from liability. Even if you know you have signed a waiver of liability, you should still seek legal advice from an experienced Georgia personal injury attorney if you have been injured by another person's conduct.

Failure to Establish Causation: A party will not be held liable for your injuries unless their conduct contributed to your injuries. The defendant need not be the only cause of your injuries, but there must be a causal connection between your injuries and the defendant's conduct. This type of defense is common in misdiagnosis of cancer cases. It is often argued that the misdiagnosis did not impact the outcome as the disease was too far advanced for the diagnosis to have made a difference.

There are many defenses that insurance company lawyers may assert in an attempt to avoid liability for a person's injuries. These are a few of the most common. Just because they assert them, does not mean they will be succcessful.  An experienced Georgia Personal Injury Attorney will be familiar with how these and other defenses apply to your situation and will have the knowledge and expertise to argue effectively against application of these defenses to your case.

At Montlick and Associates, Attorneys at Law, we have been helping those injured by the negligent and intentional conduct of others for over 37 years. We are available to assist clients throughout all of Georgia including, but not limited to, Albany, Athens, Atlanta, Augusta, Columbus, Dalton, Macon, Marietta, Rome, Roswell, Savannah, Smyrna, Valdosta, Warner Robins and all smaller and rural towns in the state. Call us today for your free consultation at 1-800-LAW-NEED (1-800-529-6333), or visit us on the web at

Category: Personal Injury

Please Note:
Many of our blog articles discuss the law. All information provided about the law is very general in nature and should not be relied upon as legal advice. Every situation is different, and should be analyzed by a lawyer who can provide individualized advice based on the facts involved in your unique situation, and a consideration of all of the nuances of the statutes and case law that apply at the time.