Virginia is one of the few remaining states that still uses contributory negligence in their personal injury and tort cases. To understand contributory negligence, it may be helpful to examine what negligence actually is and how contributory negligence is different from other types of negligence.
What is Negligence?
Negligence is a legal term that essentially means acting in a careless way. There are a lot of nuances to the definition, but basically, if you are acting negligently, then you are not acting with reasonable care. That is, you are not acting the same way that a reasonable person would under the same circumstances.
There are several types of negligence. The most common is comparative negligence. Under the theory of comparative negligence, the law realizes that some situations are the fault of both of the parties involved. The injured party, the Plaintiff, has a portion of their damages reduced by the amount of fault that is attributed to him or her.
Consider an example. Imagine that you are in a car accident. You paused only briefly at a stop sign before making a right-hand turn. As you turned, you were hit by another vehicle that completely failed to stop at the stop sign. Likely, the defendant in that situation is mostly at fault. However, a court or a jury could determine that your “roll through” also contributed to the accident, and therefore you are partially at fault. Contributory negligence would discount the percentage that you are considered at fault, decreasing your total damage award.
Contributory negligence is another type of negligence that is far less common. In our above example, you would not be able to recover at all if the jury determined that you contributed to the accident. Contributory negligence bars plaintiffs who are injured from recovering if they contributed to the accident at all—this can be a harsh rule in many cases, which is why so many states have abandoned the rule.
Virginia is what is known as a “pure comparative negligence” state. That means that even if the jury thinks you are one percent at fault, you cannot recover. Other states that have this rule have modified it slightly so that you have to reach a certain threshold of fault before you cannot recover. In some states, that threshold is as high as 49 percent. That means that you can be considered 49 percent at fault and still be able to recover. If you hit 50 percent, however, your recovery could be barred altogether.
Technically, contributory negligence is considered a defense in a personal injury case. That means that the other side must raise the argument and prove that you contributed to the accident. Because of the strict requirements imposed by contributory negligence, it can be a very important defense, whereas a defense under comparative negligence would not be as strong.
How Do I Know if I Have a Negligence Claim?
Every case is different, so it may be difficult to determine whether you have a valid claim until an experienced personal injury attorney looks through the various facts of your case. However, every case needs several elements for a valid claim. These include:
Duty: You must show that the other person had a duty to you. In car accident cases, we presume that other drivers have a duty to drive safely and avoid accidents, so this prong is usually relatively easy to prove.
Breach of Duty: You must also show that the defendant breached their duty to you. This could be because they were acting carelessly, including failing to adhere to traffic signals or posted speed limits.
Causation: The third thing you must prove is that the defendant actually caused your injuries and the accident as a whole. In some cases, this prong can be fairly straightforward, but it can be very complicated in other cases, particularly if injuries arise after the actual accident occurred.
Damages: Finally, you need to show that you suffered an injury. For monetary damages, you will likely need to produce information that shows your time off of work, your medical bills, and any other losses that you may have.
Many personal injury cases require these elements, but there are some variations depending on your specific type of accident. For example, if you are injured by a product, then an entirely different legal theory may apply altogether.
Contact The Brown Firm PLLC Today to Learn More about Contributory Negligence
If you have been injured, and you think it is someone else’s fault, speak with a seasoned personal injury attorney from The Brown Firm PLLC by calling us or contacting us online. Even if you think contributory negligence is at play in your case, you should still speak with an attorney and bring up why you think it applies in your case. An experienced attorney will be able to tell you about the various legal issues of your case and walk you through what your next steps should be.