Can I Counterclaim in a Personal Injury Case?

legal dictionaryWhen you first get news of a lawsuit against you, you may get so upset that you actually forget the plaintiff has caused harm against you, too — thus allowing you to sue them. After all, you can counterclaim in a negligence case. If someone sues you for injury and you believe that the plaintiff’s negligence caused or contributed to the injury, you have every right to sue.

Counterclaims are common in car accident cases and, often, it’s the insurance company that decides whether to sue on behalf of the defendant. In other cases, your personal injury attorney can help you decide whether a counterclaim is reasonable.

A counterclaim is filed by a defendant to a lawsuit. It’s a claim related to the subject of the original suit and aimed at the plaintiff. Counterclaims become part of the original suit and don’t constitute a separate case.

A common counterclaim or defense to a negligence suit is that the plaintiff caused or contributed to the injury by also being negligent. People are considered contributorily negligent when they fail to act to protect themselves as a reasonable person would under the same or similar circumstances. If a defendant can show that the plaintiff contributed to the injury with negligence, then the plaintiff may be barred from recovering any damages at all or damages may be reduced to reflect their contribution to the injury.

Contributory negligence was traditionally a bar to plaintiffs recovering in a personal injury lawsuit. In recent years, however, courts are more likely to analyze cases using one of two frameworks that fall under the umbrella of comparative negligence. As such, winning your contributory negligence claim is not a guarantee that you won’t have any damages to pay. But there’s still a chance.

The pure comparative negligence approach to injury cases is relatively straightforward. A plaintiff may recover a percentage of the total damages, reduced to reflect the relative contribution to injury. You, as the defendant, will have to pay out damages equivalent to the estimated percent of total injury that you caused.

Most states take a modified comparative negligence approach. In these cases, a plaintiff will not recover if their own contribution to the injury constitutes half or more of the damages. So, if a plaintiff and defendant are both equally responsible, a defendant will owe nothing in damages to the plaintiff. Similarly, a defendant who is less than half responsible will owe nothing. But if the defendant contributed even only slightly more than half to the injury, the defendant will be liable for that percentage.

If you’ve been sued, you only have a limited time in which to respond to the complaint and counterclaim. You should talk to an experienced personal injury attorney. In New Mexico, be sure to contact the Atkinson Law Firm in Albuquerque for your free consultation!

Scott Atkinson (264 Posts)

Scott concentrates on serious personal injury cases. He believes that a catastrophic injury does not just affect the victim; it also dramatically impacts the victim’s family. Scott is in Albuquerque to fight for you to recover your New Mexico accident losses!


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