Can the Defense Attorney Argue I Caused My Own Injuries?

One of the worries expressed by many Florida injury victims is how and whether a defense attorney is permitted to attack a personal injury claimant when it comes to the potential role that the injured person may have played in causing the incident that led to his or her injuries. Whether it is a motor vehicle accident, a slip and fall incident or any other type of personal injury scenario, the story as to who was at fault and how much fault they bore in causing the accident, and consequently their own injuries, can be complicated.  For example, if you were involved in a motor vehicle accident, could you have taken some action to reduce the impact of the negligent driver’s impact on your vehicle, like turning the wheel to the side at the last minute?

It used to be the case in Florida that if a defense attorney could show that the injured person was 51% or more at fault in causing the incident that resulted in his or her injuries, the injured person was barred from recovering anything in connection with the incident in which he or she was injured.  Sensibly, however, Florida changed that law to comparative fault, permitting the jury to assign fault to each of the parties that was at fault in a particular incident.  Therefore, an injured person can still file suit and seek damages for his or her injuries from a negligent person or entity even if the victim him or herself played a role, no matter how large or small, in causing his or her own injuries.

What is Comparative Fault?

Comparative fault is a concept that permits the jury, after hearing the evidence, to determine who was at fault and what percentage of fault should be attributed to each party. The jury in Florida lawsuits now receives a verdict form that includes a number of different parties that may be determined to be at fault in connection with an incident in which someone is injured. Based upon what the evidence shows, the jury will then be asked to determine what proportion of fault each party had in causing a particular incident.   Therefore, if, as in the scenario above, the evidence shows that the injured person was 5% responsible for not turning his or her wheel immediately prior to impact and the jury assigns 5% fault to that person, the injured person’s ultimate recovery is reduced by 5%.

How Fault Is Assigned in Florida Personal Injury Cases by the Jury

In Florida, the jury receives the evidence and then is asked to make several decisions when it retires at the end of the case to make its decision.  First, the jury is called upon to determine whether or not the plaintiff, in most cases the accident victim, has proven by a preponderance of the evidence (that is, more than 50%) that the defendant was responsible for causing the injuries that the plaintiff is suing the defendant for.  (This is called determining liability.)  Once the jury finds that the defendant did indeed cause the victim’s injuries, it then determines who was at fault in causing those injuries and assigns proportions of fault to each.  It then determines the total damages of the injured person and that amount of damages is reduced by the injured person’s proportion of fault in the incident.

Can a Defense Attorney Blame Really Everything on Me?

A defense attorney can certainly blame everything on the victim.  However, because the Florida comparative fault law requires that the victim’s total damages be apportioned according to the parties’ respective percentages of fault, simply blaming the victim is not likely to end up reducing the proportion of fault that the jury assigns to the defense lawyer’s own client.  Instead, it could actually backfire on the defense attorney, who is unlikely to retain much credibility with the jury by blaming everything on the victim who may have suffered serious injuries.  Asking the jury to blame someone who may be so injured that he or she is in a wheelchair or uses a walker is not usually a winning strategy in a Florida personal injury case, but many defense attorneys nonetheless try it.

The way we handle this issue is to walk the jury through the process of assigning fault and to point out that it was the responsible party that caused the majority of our client’s damages and ask the jury to assign responsibility accordingly.  This means that, even if the jury determines that our client was 10% responsible for causing the incident in which he or she suffered $100,000 in damages, our client will still recover $90,000.

Contact Schwed, Adams & McGinley, P.A. If You Have Been Injured in Florida

 When you or a loved one suffers a serious injury due to someone else’s negligence, you need legal assistance you can depend on. The experienced, skilled personal injury lawyers at Schwed, Adams & McGinley, P.A. are adept at handling even the most complex personal injury claims. Our attorneys have more than 150 years of combined experience in personal injury litigation. We routinely face situations where defense attorneys attempt to blame the victim and attack our clients’ rights to even recover damages for their injuries.  Call us today at 877.694.6079 or email us at contact@schwedlawfirm.com to speak with an experienced personal injury lawyer today.