Imagine you are in an automobile accident on Interstate 81, just outside of Roanoke, Virginia. Another driver is texting on their phone, not paying attention, and speeding. At the same time, you simply forget to put your turn signal on before merging. Your vehicle and the other driver’s vehicles collide, causing you to sustain serious injuries.
In many other states, the fact that you forgot to use a turn signal would not necessarily preclude recovery against the other driver; after all, their conduct was far more egregious. Virginia, however, is different because it follows a strict rule of contributory negligence.
What Is Contributory Negligence?
Most personal injury claims arise out of negligence, meaning that while the injuring party did not intend to harm the injured party, their carelessness resulted in harm to the injured party. The textbook elements of negligence are:
- The defendant owed a duty to the plaintiff
- The defendant breached this duty
- The plaintiff was injured as a result
- The breach of the duty caused harm to the plaintiff, both actually and proximately— meaning that the harm was foreseeable.
But what happens if both the defendant and the plaintiff were negligent?
In most states (45 to be exact), the court and/or jury will compare the plaintiff’s negligence with the defendant’s negligence and allocate fault accordingly. For example, if it is determined that the plaintiff is owed $500,000.00 for their injuries, but the plaintiff was 40% at fault, then the plaintiff will only be awarded $300,000.00 in damages (60% of $500,000). In some of these jurisdictions, the plaintiff can only recover if they were at 50% or less at fault.
Unfortunately, Virginia is one of only five states that asks whether the plaintiff’s negligence contributed at all to their injury. If the answer is yes, regardless of the amount that the plaintiff was at fault, the plaintiff is completely barred from recovering any damages. In other words, if an injured person is even 1% at fault for their injuries, the far more negligent defendant will not be held responsible in a personal injury claim.
Needless to say, this is a very harsh rule for injured persons in Virginia.
Who Determines Contributory Negligence?
In our practice, defendants to a personal injury action will often attempt to get the case dismissed by asserting contributory negligence, even before trial. While there have been some cases in Virginia where the plaintiff was found to be contributorily negligent as a matter of law, the Supreme Court of Virginia has reiterated, again and again, that, generally, an issue of whether a plaintiff is guilty of contributory negligence is a question of fact to be decided by the trier of fact. In all but a handful of cases, the trier of fact is a jury.
How Can I Challenge a Defense of Contributory Negligence?
Just as the plaintiff has the burden of proving that the defendant was negligent, the defendant has the burden of proving that the plaintiff was contributorily negligent. Therefore, the most straightforward way of defeating a defense of contributory negligence is to prove that you were not, in fact, at fault.
As noted above, this determination is appropriately made by the jury at trial. There are, however, some legal principles that will weaken a contributory negligence defense, or even prevent the jury from considering it.
First, before an issue of contributory negligence may be submitted to a jury, there must be more than a scintilla of evidence to support a finding that the plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances. In other words, a defendant cannot simply ask the jury to consider whether the plaintiff was contributorily negligent—they must have some evidence supporting that argument. Thus, depending on the facts and circumstances of a particular case, a plaintiff may be able to completely preclude a defendant from asserting contributory negligence at trial.
Second, for contributory negligence to bar recovery by a plaintiff, the plaintiff’s negligence must be concurrent with the defendant’s negligence. This argument may arise in the context of medical malpractice actions, as a plaintiff cannot be held contributorily negligence unless their allegedly negligent act was contemporaneous with the negligent act of the physician. In other words, there must be some kind of nexus between the defendant’s negligence and the plaintiff’s negligence.
Finally, the issue of contributory negligence may arise from the “open and obvious danger” doctrine. This rule, which applies to premises liability cases, states that if the owner of a premises was negligent in failing to warn the plaintiff about a dangerous condition, the owner will not be liable if the dangerous condition was open and obvious. As with other assertions of contributory negligence, the issue is ordinarily one for the jury to determine.
However, with respect to the “open and obvious danger” doctrine, a plaintiff can defeat a claim of contributory negligence if there was some condition (outside of the plaintiff) that prevented them from seeing the dangerous condition or which would excuse their failure to observe it. The case of Fultz v. Delhaize America, Inc. (a corporation doing business as Food Lion) illustrates this principle well. In Fultz, a customer tripped over a metal bar on the floor in front of an ATM. But, even assuming that the metal bars were an open and obvious dangerous condition, the customer was distracted from this hazard both by her use of the ATM and the sudden movement of her young grandson. Therefore, the plaintiff was not contributorily negligent of a matter of law; rather, the case presented a jury question.
Fishwick & Associates: Fighting for Personal Injury Victims
Virginia’s contributory negligence rule is harsh and, at times, may lead to unfair results. But as this article demonstrates, there are ways to fight against an assertion of contributory negligence. If you or a loved one were injured due to the negligence of another in the Roanoke, Virginia, area, Fishwick & Associates can help you assess your case and understand your legal options.
Terry v. Irish Fleet, Inc., 296 Va. 129, 818 S.E.2d 788 (2018).
RGR, LLC v. Settle, 288 Va. 260, 764 S.E.2d 8 (2014).
Michael D. Weiss & Mark W. Bennett, New Federalism and State Court Activism, 24 Mem. St. U.L. Rev. 229, 257 n.184 (1994).
Evans v. NACCO Materials Handling Grp., Inc., 94 Va. Cir. 240 (Roanoke County 2016).
Rocky Mount Shopping Ctr. Assocs. v. Steagall, 235 Va. 636, 369 S.E.2d 193 (1988).
Ponirakis v. Choi, 262 Va. 119, 546 S.E.2d 707 (2001).
Fultz v. Delhaize Am., Inc., 278 Va. 84, 677 S.E.2d 272 (2009).
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.