If you are considering the possibility of pursuing a personal injury claim in Virginia, you need to know about the defense called contributory negligence. Virginia is one of a handful of states that still applies the defense of contributory negligence, and, if it applies, it will prevent an injured party from recovering any financial compensation for their personal injury action. With that in mind, here are three things to know about contributory negligence in Virginia.
First, contributory negligence may bar an injured person’s personal injury recovery even if the injured person was only one percent at fault. That rule can be very harsh in the real world, as it oftentimes allows those who were mostly at fault for an accident to avoid any legal responsibility. Generally speaking, courts justify the use of this harsh rule by saying that the law requires both plaintiffs and defendants to make sure they are acting safely—or with due care—for those around them. If an injured person was not acting safely in a situation, that may be contributory negligence, and they will not be able to recover even if another party was at fault for the accident.
Second, contributory negligence will only act as a defense if the contributory negligence was a cause of the accident. It might be best to explain this with an example. Say, for example, that a driver was injured when a tractor trailer ran a red light and collided with him. Assume, also, that the injured driver was not wearing his seatbelt at the time of the accident. In that example, it appears that the injured driver breached a legal duty by failing to use his seatbelt, a device that would help restrain him in the event of an accident. But the failure to use the seatbelt is not a cause of the accident, nor was it a factor that helped contribute to the cause of the accident. Because of this, the defense of contributory negligence would not apply in that matter.
Third, in most cases, it is a jury of your peers that will decide if the defense of contributory negligence applies to your claim. Different juries in different counties or areas of Virginia may have different opinions about whether contributory negligence applies in a certain case, so it is best to talk with an experienced Virginia personal injury attorney to learn how best to approach your case. In addition, there may be some claims, such as when a defendant acts recklessly, where the injured person’s contributory negligence will not prevent the injured party from recovering money.
Thanks to our friend and blog author, Robert E. Byrne, Jr. of MartinWren, P.C., for his insight into contributory negligence.