"Yeah, but it was his fault too!" That sums up in a nutshell what an affirmative defense is in a personal injury lawsuit. In the example of a car accident case, a plaintiff may be injured when the responsible driver runs a red light and a car crash takes place. The injured plaintiff files a lawsuit against the driver alleging that the driver was distracted and texting while driving, and that as a result, the other driver ran a red light. The defendant then responds with, amongst other things, that even if that is true, the injured victim was speeding, and that was at least part, if not all of the cause of the incident. Affirmative defenses are the proverbial "yeah but" defense. No different than a young child uses everyday ("yeah, but she hit me first"). In a legal context, dealing with affirmative defenses at the pleading stage (when the parties are exchanging formal documents laying out the claims), discovery stage, and at trial, are vital to a successful recovery for an injured victim. If such affirmative defenses are not properly denied, they are often deemed to be admitted, which impacts any recovery a crash victim, or any victim in a personal injury lawsuit, is entitled to. Even if the affirmative defense seems outlandish, it still must be appropriately addressed. Things like affirmative defenses are why it is important for any victim of a personal injury to contact an experienced personal injury attorney as soon as possible after an incident. An experienced lawyer can guide you through the process to deal with affirmative defenses, or better yet, help you properly conduct yourself to avoid giving the responsible party the ammunition it needs to bring a frivolous affirmative defense. Involving an experienced attorney is one of the best things you can do to maximize your chance for a full recovery of what you are entitled to for your injuries.
Sadly, earlier this month there was another fatal accident involving a school bus here in Illinois. While the official cause of the incident that left one person dead and dozens injured is still not known, the accident in Lake County highlights the need for better safety and institutional controls when it comes to school buses in Illinois. Our firm has been involved in multiple school bus cases over recent years, handling cases on behalf of victims including a case of assault by a bus driver and a fatal crash where a school bus stuck a fire truck on the way to call. School buses need to be as safe as possible, not only to protect the children they transport, but also others on the road, as, let's face it, school buses are large vehicles that can do a lot of damage, and cause serious personal injuries, when they are involved in collisions. Monitoring the safe operating condition of the buses themselves, making sure the bus drivers are properly qualified, and doing whatever can be done to make sure all school bus drivers are safe operators of the buses should be at the top of anyone's agenda who has a say in school bus safety. Personal injury lawyers will continue to fight for those injured in school bus accidents, but others need to also do their part to prevent these tragedies from happening in the first place. School bus safety benefits everyone.
As discussed here previously, reading something you are asked to sign, before you sign it, is vitally important in any context, but especially when it comes to personal injury waivers or releases of liability. Americans are routinely bombarded with advanced waivers they are expected to sign before they are allowed to do things like: play sports, work out, join a club, and the list goes on. What many people fail to realize is that by blindly signing these documents people often waive the right to recover for injuries that are not their fault; injuries they probably never even imagined. Last month an Illinois Appeals Court upheld the dismissal of a suit against a health club in Chicago where a gym member was injured in 2009 -- injuries so severe the victim was rendered a quadriplegic. The reason the case was dismissed was simple: when the victim joined the gym he signed a document that exempted the club from liability for injuries, including injuries caused by the club's own negligence. Even the appeals court acknowledged "...that upholding the health club's exculpatory clause in this instance leads to a harsh result." Obviously the victim never expected he would be injured while working out, especially to the tragic extent that he was. But, that is why it is so important to think about what you sign before you sign it. When you get in a car you put on your seat belt before you drive anywhere to prevent injury. It is not as if you got in the car saying, "today I am going to get in an accident." You need to plan before you act, and take into account what could happen, not just what you hope will (or will not) happen. The language of releases and waivers of liability in personal injury cases vary widely, and can result in some waivers or releases being unenforceable. If you are ever injured in a situation where it is not your fault, even if there is some type of waiver or release involved, you should contact a knowledgable personal injury lawyer as soon as possible. An injury lawyer can advise you of your right and the consequences of any documents you may have signed.