Enthusiasts of the legal dramas prefer to view the world through a gray lens; in Virginia, black and white are the only options. The contributory negligence rule holds that an injured party cannot recover if that party shares, even slightly, in the blame. One percent? You’re banished to the poorhouse.
One declaratory sentence conveys more about the practice of litigating personal injury claims in Virginia than any statistic could. It converts a case of an obviously faulted driver into the type of chase game defense lawyers love to play- finding the one tiny flaw in a plaintiff’s conduct. It is one of the oldest surviving doctrines of American legal practice. Together with a few other states, Virginia has adopted the rule in its full force and effect.
What is Contributory Negligence?
Negligence is a legal doctrine that holds a party at fault in a personal injury case. It bars an injured party from any recovery when the injured party’s behavior contributed to the harm. This is an absolute rule with no line drawn in the sand. The rule bars recovery.
The majority of states have replaced the contributory negligence doctrine in favor of comparative negligence. Under this system, a jury assesses the conduct of the parties and takes a haircut from the injured party’s recovery. A twenty percent fault driver still recovers eighty percent. Not Virginia, whose system is as harsh as its winters.
This rule shifts everything related to a given claim.
● Defendants do not need to prove that they were free of fault. They only need to prove that the plaintiff was partially at fault.
● Insurance adjusters will carefully examine any document for anything that could be construed as a fault admission.
● Even minor details, such as looking at your phone or going a little over the speed limit, can completely engross a court case.
Why Does Virginia Still Follow a Rule Most States Abandoned?
Contributory negligence is a common law doctrine that Virginia’s state courts have declined to overrule. The Virginia General Assembly has not replaced it by passing a comparative fault statute. For those dealing with the aftermath of a collision, a Richmond car accident lawyer can help explain how this rule may affect a potential claim.
The nineteenth century English and American courts created this doctrine. During the twentieth century, state supreme courts and legislatures dismantled it when they found that the rule was too harsh. Virginia’s courts have held that the legislature must determine such a substantial change. The legislature has not done so.
Within the rule, there is an older idea that a person seeking help from a court should have a blameless hand. Whether that is still the case in a world of freeway merges and distracted people is a reasonable argument. However, this is currently the commonwealth’s law.
How Does a Jury Decide Someone Was Partly at Fault?
The jury decides with straightforward evidence. The defense constructs a narrative in which the victim had the opportunity to avoid the accident and failed to do so.
The important details are often small and human.
● A driver that drifted out of a lane while reaching for a cup.
● A pedestrian that stepped into the roadway outside a marked crosswalk.
● A motorcycle rider that was traveling a little faster than is reasonable for the road’s conditions.
None of these excuses the other driver’s conduct, and in most states none of these would defeat a claim. However, in Virginia they would.
Because the defense bears the burden of proving contributory negligence, the focus of the litigation is almost always on the quality of the evidence, rather than the severity of the injury. Photographs, video, dash cam footage, measurements of the accident scene, and witness testimony will often determine the outcome of the case. Thus, a Richmond car accident attorney will often go to great lengths to secure this evidence.
What Does the Rule Mean on Richmond Roads?
It means the first hour after a crash often decides the case. The way traffic is in Richmond means that the types of accidents this rule targets are the types of accidents that are common in Richmond.
Imagine merging lanes as I-95 and I-64 intertwine north of downtown. Consider the endless merging and lane changing on Chippenham and Powhite Parkway. Then, consider the endless commercial strip of West Broad Street as it goes through Tuckahoe. Finally, consider Route 360 as it takes commuters back and forth to Mechanicsville.
The first report of a sideswipe accident on any of these roads is really what determines fault. In Henrico County and Chesterfield County, people are right to be cautious about giving recorded statements to any insurance company.
Local juries will get contributor’s negligence. The person who apologizes at the scene will face those words being used against them, even if they did not mean to be at fault.
Are There Any Exceptions?
There are exceptions, but they are few and far between. Virginia adheres to the last clear chance doctrine. The encouraging fact is that recovery will still be possible in situations when the defendant had the chance to avoid the accident even after the helpless plaintiff entered a state of peril.
Those are the only exceptions to the rule. For an injury to occur as a result of the plaintiff’s negligence, the negligence has to be of a kind that caused the injury, and it must be proximate.
When the negligence is of a higher nature, such as willful misconduct, then it is something different. Different standards apply to young children and adults. For example, truck accident attorneys in Richmond may closely examine these doctrines when evaluating how negligence contributed to a serious collision.
All of these are doctrines rather than loopholes. They require a close factual analysis.
How does the rule affect truck and wrongful death cases?
The stakes drastically change. Commercial carriers jump into action, along with their insurance companies. The contributory negligence defense gives them all the more reason to be the first to the scene and develop their “fault” narrative before anyone else arrives.
Evidence in a tractor-trailer case lives on equipment that does not stand still:
● electronic control module data
● logs from electronic logging devices (ELD)
● dispatch logs
● records of trailer maintenance
● driver qualification files
Families and the attorneys for truck accidents in Richmond often send preservation demands in a timely manner. This type of evidence can be overwritten as part of routine activity.
In Virginia, under Wrongful Death Act, Code § 8.01-50, a personal representative can bring an action for a statutory beneficiary. The decedent’s own contributory negligence can bar such an action, just like any other negligence action.
What do you do After a Crash in Virginia?
Preserve evidence. It is important to record what happened while the case is still fresh in everyone’s minds and the crash sites have not been repaired.
● Call the police and request an accident report.
● Take pictures of all the evidence at the crash site. Include vehicle positions, the presence of debris, all skid marks, any traffic control devices and the view of other vehicles.
● Don’t let witnesses leave until you have their names and offer to call their doctors for them.
● Tell medical personnel about all of your symptoms, not just the most severe one.
● Be careful about recorded statements, apologies, offers, and posts made on social media.
● Talk to a lawyer to determine the time limit to file your claim. In Virginia, your time is more important than the evidence, and every case is final if you miss the time limit.
Frequently Asked Questions
Does one percent of fault bar a claim in Virginia?
Yes. Virginia follows pure contributory negligence. This means that if a jury finds that a plaintiff was negligent, no matter how slightly, the plaintiff cannot recover. A plaintiff cannot recover when a jury finds the plaintiff less than one hundred percent at fault. Therefore, liability evidence is usually more important than evidence of a plaintiff’s injuries.
What is the difference between contributory and comparative negligence?
Contributory negligence is a complete bar to recovery. Comparative negligence, used in most states, means that comparative negligence reduces a plaintiff’s recovery in proportion to the plaintiff’s fault.
A person who is thirty percent at fault will be able to recover seventy percent of their injuries in a comparative state. However, Virginia will bar that person from recovery.
Who has the burden of showing that the plaintiff was careless?
The defense. In Virginia, contributory negligence is an affirmative defense. Therefore, the proponent of the defense has the burden of proving the defense and persuading the jury.
That is why documentation of the crash scene, witness statements, and reconstructing the crash are very important in Virginia crash cases.
Does the rule apply to cases of wrongful death?
Yes. Virginia bars a Section 8.01-50 wrongful death action if the decedent was contributorily negligent.
This is usually a surprise to families. It is a big reason why evidence needs to be preserved sooner rather than later, despite the insurance company’s investigation.
Johnson Injury Firm takes on personal injury and wrongful death cases in Richmond and neighboring areas of Henrico County, Chesterfield County, Mechanicsville, and Tuckahoe.
The firm states that they have a combined 125+ years of experience. It also states that they focus on taking on fewer cases so they can provide clients with the time and attention they deserve.
Consultations are free, and they work on a no win no fee basis. The firm is located at 5501 Staples Mill Road, Richmond.
To see if you have a case at all with Virginia’s fault rules, it is a good idea to give them a call.
