You have been served with an injury lawsuit and from your point of view, it is a frivolous claim. But you still have to defend yourself.
So how do you do that? Let’s take a quick look at negligence and how you defend it by negating the elements of the claim.
Negligence, in Brief
The elements of negligence are duty, breach, causation and harm (or injury). To defend against a claim of personal injury, you will have to negate an element of negligence.
In brief, the plaintiff will argue that you owed them a duty of care, that you breached that duty, and that the breach caused a harm or injury which is compensable. Damages are only awarded if all of that can be shown. For the defendant, only one element must be disproven to defeat the case.
How to Negate the Elements of the Frivolous Claim
You need not negate every element and some might be impossible to disprove. Duty of care, for example, may be difficult to disapprove as the duty arises from a relationship — personal, professional, service, or other — and is likely the basis for your being named in the claim.
Still, you might argue that you owed the plaintiff no duty of care. Whether that is plausible depends on the details of the case. If the person injured had only the most tangential relationship to you, perhaps you owed them no duty.
A more likely argument is that you did not breach the duty of care. Even if you were in some sort of relationship with the plaintiff, you can still argue that you behaved as a reasonable person would under same or similar circumstances.
In other words, you owed a duty and did not breach it. If you can show no breach, you have already succeeded — you cannot be held liable for an injury if you behaved as a reasonable person would under same or similar circumstances.
The same principles apply to causation and harm. The plaintiff argues you caused the harm. You try to show that there were intervening causes that were not foreseeable or that you just did not cause it at all.
Finally, you might argue that there was no injury or that the injury is not as severe as the plaintiff argues and that the damages sought far exceed actual harm.
Talk to a Lawyer
There is really no way around this. You need a lawyer. Although the injury claim may seem frivolous to you, lawsuits involve a lot of paperwork and deadlines and administration.
You do not want to defend yourself alone and you should not try. If paying for defense counsel seems prohibitive, just contemplate paying damages.
The same advice goes for plaintiffs. You need representation. If you have been injured, consult with a personal injury attorney who will assess your claim for free.
- Have an injury claim? Get your claim reviewed for free. (Consumer Injury)
- Meeting With an Injury Attorney (FindLaw)
- Fact Finding and Discovery (Findlaw)
Originally Seen On: http://blogs.findlaw.com/injured/2015/12/tips-for-defending-against-a-frivolous-injury-lawsuit.html