Virginia, along with North Carolina, is one of four states that still imposes the outdated and, frankly, unjust common law principle of contributory negligence. A widely cited lawbook definition of this rule states, “Under contributory negligence, a plaintiff was totally barred from recovery if they were in any way negligent in causing the accident, even if the negligence of the defendant was much more serious.”
Many of the personal injury and wrongful death clients my Virginia Beach-based law firm colleagues and I represent face accusations of contributing to causing the harm they suffered. We fight allegations of contributory negligence from insurance claims adjustors and defense lawyers, and we do have the law on our side in many cases.
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State laws recognize four instances in which contributory negligence will not be recognized. In such cases, monetary awards for things like medical bills, lost wages and pain and suffering might be reduced on findings of comparative negligence. That is not also optimal, but the injured person or the estate of a deceased individual will still be allowed to collect on insurance claims or pursue a civil lawsuit when another person or an organization acted more negligently.
The following example of how this might work comes from Wex, the online legal dictionary maintained by the Cornell Law School:
<blockquote>In a situation where both the plaintiff and the defendant were negligent, the jury allocates fault, usually as a percentage (for example, a jury might find that the plaintiff was 30 percent at fault and the defendant was 70 percent at fault). Then each pays their share of the other’s damages (in the above example, the plaintiff pays 30 percent of defendant’s damages, and defendant pays 70 percent of plaintiff’s damages.</blockquote>
In Virginia, the contributory negligence rule is waived, and a comparative negligence rule may be invoked, in one of these circumstances:
- A person who was injured or killed in a car crash failed to comply with state laws, that require the use of seat belts or child safety seats,
- A bike rider suffers injuries or gets killed while not wearing a helmet,
- A bus, train, plane or taxi passengers gets injured or killed in a crash, or
- A railroad employee suffers injuries, develops an illness or dies because his or her employer failed to comply with a safety code.
Comparative negligence claims must almost always be decided by a civil trial jury. This is especially true in railroad injury, occupational illness and wrongful death cases. But, again, going to trial is usually preferable to conceding that a small degree of negligence strips an accident victim of his or her right to hold the actually responsible party accountable.
EJL
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