Understanding the Contributory Negligence Defense in Virginia Tort Claims Involving Personal Injuries and Auto Accidents
Virginia Follows the Contributory Negligence Doctrine and the Defendant May Use it to Defeat Your Personal Injury Claim
Sometimes both the plaintiff and defendant acted with negligence, resulting in the accident and injury. In these situations, both parties share the blame.
In many states, you can recover damages even if you were at fault for the incident – as long as the defendant is more to blame. This is because these states follow the comparative negligence doctrine.
However, in states that follow the contributory negligence doctrine, like Virginia, a plaintiff who is even a little to blame for the accident cannot recover damages.
This article explains the use of the contributory negligence defense in auto accident, personal injury, and product liability claims brought in Virginia – and ways that you can overcome it to recover damages from a negligent driver, person, or business.
Keep reading to learn more. If you have questions about contributory negligence in Virginia, or are looking for a top-rated Virginia personal injury attorney or car accident lawyer to protect your rights, call me now: 804-251-1620 or 757-810-5614. Your consultation is free.
What is the Pure Contributory Negligence Rule?
The pure contributory negligence rule states that you cannot recover damages under tort law if you contributed to your injury and damages. Not one cent.
It does not matter if the defendant was more at fault for the crash. For example, you cannot recover money through a lawsuit even if you were one percent (1% at fault).
Many scholars, attorneys, and accident victims criticize this rule as being too harsh on plaintiffs – and I agree. But, unfortunately, Virginia and four other jurisdictions (Alabama, D.C., Maryland, and North Carolina) continue to apply the contributory negligence doctrine.
Exceptions to Contributory Negligence in Personal Injury Cases
Last Clear Chance Exception to Contributory Negligence
The last clear chance doctrine (also called the last opportunity doctrine or the last clear chance exception to contributory negligence) is one method to overcome the contributory negligence defense.
Under the last clear chance doctrine, a plaintiff may recover damages in a car crash or personal injury case even if the plaintiff was partially at fault for the accident and injury.
A warning: The last clear chance exception may be available in your case. However, it is often a long shot to overcome an otherwise valid contributory negligence defense. Few court cases have accepted the argument, at least in those decisions appealed to the Supreme Court of Virginia.
What is the Last Clear Chance Doctrine of Tort Law?
Some judges thought the contributory negligence rule was too harsh and led to an unfair outcome – particularly where the defendant’s negligence is the proximate cause of the injury and the plaintiff’s negligence only a remote cause.
They created an exception to the contributory negligence rule known as the last clear chance doctrine to counter these results and help persons injured in accidents where the other driver (or defendant) was also at fault.
The last clear chance doctrine “means precisely what the name implies – that is, that one of the litigants had a last clear chance to avoid inflicting the damage or injury, notwithstanding the fact that the other litigant had previously, by his negligence, placed himself in a situation of peril.”
Under the last clear chance exception, a negligent plaintiff can recover damages by showing that the defendant had the last opportunity to avoid the accident.
Two Approaches to the Last Clear Chance Doctrine in Virginia
The last clear chance doctrine applies in two situations.
First, you can raise the last clear chance exception where you negligently placed yourself in a dangerous situation from which you are physically unable to remove yourself.
This is known as the helpless plaintiff approach to the last clear chance doctrine.
Second, you can assert that the last clear chance exception applies where you negligently placed yourself in a position of peril from which you can remove yourself; however, you are unaware of the danger.
This is known as the inattentive plaintiff approach.
Let’s examine the two approaches to the last clear chance doctrine in greater detail.
Last Clear Chance Rule One: Helpless Plaintiff
Rule #1 of the last clear chance doctrine applies when you cannot save yourself from the situation.
A defendant is liable for your damages under the helpless plaintiff rule if:
- You put yourself into a dangerous situation because of your negligence;
- You were physically unable to remove yourself from the situation;
- The defendant saw or should have noticed that you were in danger;
- The defendant could have avoided the accident by exercising reasonable care, vigilance, and competence; and,
- The accident happened, resulting in injury.
Last Clear Chance Rule Two: Inattentive Plaintiff
Rule #2 of the last clear chance doctrine applies when:
- You negligently placed yourself in a situation of peril;
- You are physically able to remove yourself from the situation;
- However, you are unaware that you are in danger; and,
- The defendant saw and realized (or should have determined) you were in danger; and,
- The defendant had time to avoid the accident by using reasonable care but did not.
Who Has the Burden of Proving the Last Clear Chance Doctrine?
As the plaintiff, you have the burden of proving every element of your negligence case.
This burden extends to alleging and proving that the defendant had the last clear chance to avoid the accident resulting in injury.
I recommend evaluating whether the last clear chance doctrine applies to your case if the defendant denies liability for the accident. Then, you can use the discovery process – interrogatories, requests for production of documents, requests for admissions, and depositions – to develop evidence and determine the defendant’s defenses.
What if the Plaintiff and Defendant Had an Equal Opportunity to Avoid the Accident? The Contributory Negligence Doctrine Supersedes the Last Clear Chance Exception
The last clear chance doctrine does not take the place of the contributory negligence rule. Therefore, if you had the same opportunity to avoid the crash or accident as the defendant, you cannot use the last clear chance exception to get around a contributory negligence defense and recover money for your injuries.
Indeed, the Virginia Supreme Court has addressed this situation head-on, holding that “[a] final principle applicable to the last clear chance doctrine … is that it “does not supersede contributory negligence. Therefore, “[a] negligent plaintiff may recover only if his negligence was a remote rather than a proximate cause of the accident.”
Therefore, “[i]f the opportunity to avoid the accident is as available to” you as to the defendant, then your “negligence is a proximate cause rather a remote cause, and bars recovery.”
However, if the evidence does not show that you were as guilty of negligence as the defendant or that your actions or omissions contributed to the accident through the time it occurred, then consider a motion in limine to exclude the contributory negligence defense. Or, in the alternate, request a jury instruction on the last clear chance exception.
Rescue Doctrine Exception to the Contributory Negligence Defense
The rationale behind this rule is simple. Both statutory and common law usually require both the plaintiff and the defendant to exercise the same degree of care. If the plaintiff failed to take precautions to avoid injury that an ordinary prudent person would have taken under the same circumstances as the accident then the plaintiff is barred from recovery.
Courts differ on the type of conduct that rises to contributory negligence.
Some courts use the “but for” test. If a plaintiff would not have been injured but for his or her conduct, the plaintiff may not recover damages.
Other courts use the “substantial factor” test when evaluating a contributory negligence defense. A plaintiff is not barred from recovering damages unless the plaintiff’s negligence was a substantial factor in his or her injury.
No matter the test used, the plaintiff’s negligence must be more than trivial for the contributory negligence defense to apply. A jury instruction stating that a plaintiff is barred if his or her negligence contributed to the personal injuries “in the slightest degree” is disfavored in Virginia.
What Acts or Omissions are Considered Contributory Negligence in Virginia?
Usually contributory negligence is a question of fact. This means the jury in a personal injury trial decides whether the contributory negligence doctrine bars the plaintiff’s recovery.
There are, however, some acts and omissions that Virginia courts have held to be contributory negligence as a matter of law. This means the judge, not the jury, decides whether a party is contributorily negligent. Examples of contributory negligence include:
- The plaintiff driver failed to see a large vehicle from a distance of approximately 100 yards;
- The plaintiff driver slammed on the brakes and stopped in the middle of the road;
- The plaintiff passenger knew the defendant driver had consumed enough alcohol to impair his ability to drive;
- The plaintiff driver made a right-hand turn from the left-hand lane;
- The plaintiff driver pulled out onto a road in front of an oncoming vehicle that was speeding;
- The plaintiff pedestrian failed to look before crossing a busy street with a heavy volume of traffic;
- The plaintiff failed to avoid an open and obvious condition, such as a visible liquid spill with a “caution” sign;
- The plaintiff suffered electrocution after touching an electrical wire despite receiving several warnings that the wire was dangerous;
The question in cases where the contributory negligence defense is raised is always whether a plaintiff failed to act as a reasonable person would have acted for his or her own safety under the same factual circumstances.
Is the Violation of a Statute Contributory Negligence in Virginia?
A plaintiff’s violation of a statute, or law, may be considered contributory negligence.
Though some cases have found that a plaintiff is guilty of contributory negligence if he violates a statute or local ordinance at the time of the accident, not all do.
A defendant may need to prove that the plaintiff’s violation of a statute caused the injuries to prevail on a contributory negligence defense.
Does the Doctrine of Contributory Negligence Apply to Children?
We represent children and their families in personal injury, traumatic brain injury, and wrongful death cases. Child plaintiffs are not held to the same standard as adult plaintiffs because they do not have the knowledge or experience to know or estimate correctly the probable consequences of his acts in a given situation.
In Virginia a child under the age of seven is presumed to be incapable of contributory negligence. This means a defendant will likely lose if it raises the contributory negligence defense in a case involving a child plaintiff under seven.
Children between the ages of seven and fourteen are presumed incapable of contributory negligence. This is a rebuttable presumption that may be overcome, though it is difficult and the defendants bear the burden of doing so.
A child age fourteen or older is presumed capable of contributory negligence. This presumption, however, is rebuttable by clear proof.
Does the Doctrine of Contributory Negligence Apply to Persons with Intellectual Disabilities?
Virginia is in the minority when it comes to the treatment of persons with intellectual disabilities under the contributory negligence doctrine.
A person with diminished mental capacity is held to the same standard as an ordinary person. The court adopted this rule because:
If the rule were otherwise, there would be a different standard for each level of intelligence resulting in confusion and uncertainty in the law.
The Sudden Emergency Doctrine and Contributory Negligence
Both plaintiffs and defendants may assert the sudden emergency doctrine in Virginia.
This doctrine states that when a person is in great peril and confronted with a sudden emergency, he or she is not required to exercise the standard of care required under normal situations. A person is only required to act as an ordinary prudent person would when confronted with the sudden danger.
Contributory Negligence and Workers Compensation in Virginia
Virginia workers compensation is based on a compromise.
Employers give up the right to use the contributory negligence defense to prevent injured workers from receiving temporary total disability, permanent partial disability, and lifetime medical benefits. In exchange injured workers give up the right to compensation for pain and suffering arising out of a workplace accident or occupational disease.
Because of this compromise the contributory negligence doctrine does not apply to claims for benefits under the Workers’ Compensation Act. So long as an injured employee does not willfully violate a safety rule or intentionally harm himself, workers comp benefits are available presuming the other legal requirements of proving a compensable injury are met.
A Personal Injury Attorney You Can Trust
If you were hurt in an auto accident, truck accident, motorcycle accident, or slip and fall accident caused by someone else’s negligence, I can help.
I represent accident victims across the state – from Virginia Beach to Richmond to Fairfax to Roanoke to Petersburg. And I want to help you recover fair compensation for your damages.
Call me for a free consultation: 804-251-1620 or 757-810-5614. We can discuss all options, including workers compensation if you were hurt on the job and Social Security Disability if your injuries keep you out of work for a year or more.
Don’t let the insurance company’s allegation that you contributed to your injuries stop you from pursuing a negligence action for personal injuries.
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