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What affirmative defenses do you think are available to your client?

(Provide a thorough

discussion of each defense and why the defense applies in this case).

Assumption of risk is the first defense that comes to mind. The attorney for the defendant

could claim that the plaintiff was being negligent and assumed the risk of an accident when he

chose not to wear a helmet while driving his motorcycle on the highway. However, because

there is no helmet law in Illinois, this claim would be hard to prove.


Next is contributory negligence; which means that the plaintiff is just at fault as the

defendant. The actual percentage is decided by a jury and can have an impact on the plaintiffs

monetary damages. The attorney for the defendant could claim that Mr. King was equally at

fault because he failed to reduce his speed when the cargo fell from the truck and could have

avoided the accident otherwise. Additionally, because Mr. King loosened the wires in his jaw, it

could also be said that he added to his own injuries.

What facts would be important to help you prove each affirmative defense in your answer?
The speed of the plaintiff could have an effect on the accident. Using an Accident

Reconstructionist could help to determine the precise speed at the time of the collision. If the

defense could prove that the plaintiff was speeding then they could claim that the plaintiff caused

the accident by driving recklessly.


Other facts that could help would include the plaintiffs state of mind at the time of the

accident, if he were on any medications, and whether he sought help for mental issues. Because

we already know that Justin tried to commit suicide, it could be argued that he was mentally

unstable prior to the accident.

Which witnesses would you interview and what questions would you ask them?
I would interview the hospital staff first. I would ask questions relating to his state of

mind, the damages caused by the accident only, (and not from his loosening of the wires), and
what/how long his recovery would have been if he had not loosened the wires in his jaw. I

would also ask if he would have needed facial reconstruction if he had not loosened the wires.
I would also interview his psychiatrist to find out if Justin had any mental issues prior to

the accident.
It would also be helpful to interview anyone that might have seen the accident firsthand,

any of the first responders, such as police or EMTs, his agent and other people of MCI Records,

and friends and family. I would ask any witnesses how fast Justin was going, if he was driving

recklessly, if he was able to stay in the lane or swerved a lot. I would ask any first responders if

there was any indication that Justin had been under the influence; for instance, they might have

smelled alcohol on his breath. I would ask his agent and MCI Records to confirm Justins story

of signing a contract. Finally, I would ask his friends and family if Justin was prone to delusions,

had any mental health problems, was taking medication, and had ever sued anyone before. I

would also ask them if anyone had seen him that day and if so, what they had done.