Defense Available To Avoid Liability

Mere Accidents

There are situation where accidents occur without either party to them being negligent. They are unavoidable situation that just happen. In these cases, neither party is liable to the other for the accident.

Contributory Negligence

This is the most common defense found in automobile accidents cases. If the person who is suing to recover for his injuries was himself guilty of an act if negligence (no matter how slight that negligent may have been), and that negligent contributed to the accident, that person will not be permitted to recover from the other.

Some states are changing this harsh rule to what is called comparative negligence. Virginia, Maryland and the District of Columbia have not adopted these yet and still operate upon the doctrine that the contributory negligence of the plaintiff will bar recovery.

Assumption of Risk

This defense arises when the person who is suing is shown to have assumed the risk attendant to the situation. The best illustrated of this case where a passenger gets into a car driven by someone he knows is under the influence of alcohol. If there is an accident caused by the negligence of the driver, the passenger will not be permitted to recover for his injuries because he assumed the risk of a known danger, namely that the drunk driver would have an accident.

Sudden Emergency

When a driver is confronted with a sudden emergency, then he is held to a lesser standard of care. This means that the jury will consider his driving in the emergency by the standard if what a reasonable person would have done in an emergency.

Examples of this are when a driver’s brakes fail, he hits an oil slick in the road, or he is confronted by an unexpected obstacle

Of course, this doctrine will not be applied if the driver’s negligence helped get him into the emergency situation in the first place. For example, in a case where the driver if a car was confronted by his gas pedal sticking to the floor, the lesser standard of the sudden emergency doctrine was not permitted because the driver had been speeding on a wet and curving road just moments before.

Damages

Personal Injury

The law permits an injured plaintiff to recover a money judgment for the bodily injuries he sustained including the effect of those injuries on his health and future. The jury would assess the damages based on the degree of the injuries and their probable duration.

Mental Suffering

The jury is permitted to assess dollar damages for the physical pain of those injuries as well as the mental anguish that the plaintiff has suffered, is suffering and may suffer in the future.

Of course, these damages included assessment for disfigurement or deformity or any associated humiliation or embarrassment.

These damages also include value for inconvenience caused to the plaintiff in the past, present, and that inconvenience which will probably occur in the future as a result of the accident.

Lost Income, Expenses

Damages also include all medical expenses incurred in the past and in the future. In addition, the plaintiff may recover all of his lost earning resulting from his inability to work as a result of the accident. This recovery is the gross pay and not the net pay after taxes or deductions for anything.

Future Losses

An injured plaintiff also may recover for any future or potential lost earnings or lessening of earning capacity that he may reasonable be expected to suffer in the future.

Property Damage

The plaintiff may recover for the property damage depending on whether the property damage is a total loss or a partial loss. If it is a partial loss, then the measure is the reasonable cost to repair the item plus the amount, if any, that the property was depreciated because it was damaged (diminution in value), together with those reasonable expenses incurred by the plaintiff as a result o the damage to the property, such as loss of use. In Virginia, the plaintiff is required to show that he actually paid for a rental car before he can recover for same.

If the property damage is total, then the measure of damages is the difference in value of the property immediately after the accident plus the reasonable and necessary expenses incurred as a result if the damage. This means that if you have a car that was worth $200 scrap value, your damages are $2,300.

The concept behind property damage is to make you whole and not better off than you were before the accident. The defendant is not responsible to buy you a new car, but merely to pay for the replacement value of your particular vehicle in its particular condition. This is intended to restore you to your pre-accident condition.

Pre-Existing Condition

You may recover for the aggravation caused in the accident of a pre-existing condition. You may not recover for the prior injury but only for that aggravation of it that the accident caused.

Takes You As You Go

If, you are a person easily injured, the law does not penalized you for this, and the person who caused the injury must pay for your damages even though they would not have occurred to an otherwise healthy person.

Duty to Mitigate

As important element of damages is the duty to mitigate. The law imposes this duty on all plaintiffs. The plaintiff must act reasonable to minimize his damages, and if a jury were to believe that he increased his damages when he reasonably could have minimized them, then he will not be permitted to recover for the amount of damages that he caused to be increased.