If you are hurt by another person or company’s negligence, then you can seek monetary damages under tort law. But that person or company, or their insurance carrier, has several defenses available to try to defeat your negligence claim, persuade you to accept a lower settlement offer, or limit the amount of money a judge or jury awards you at trial.
These defenses to negligence fall into three categories: defenses based on your conduct at the time you were injured, defenses based on the defendant’s legal status, and time limitations. Some of these defenses are affirmative defenses, meaning the defendant must raise them when answering your lawsuit or else they are waived. While other defenses are available to the defendant no matter what.
The purpose of this article is to discuss some of the defenses you may need to overcome to get the money you deserve for your injuries, past and future medical care, wage loss, permanent disability, and pain and suffering resulting from someone else’s negligence. Though I focus on common defenses to personal injury claims in Virginia, you may find this information helpful no matter where you live.
A word of warning before you continue: The defenses discussed below only apply to negligence claims that are not work-related. If you were hurt in a slip and fall accident, fall from a height, or car accident on the job, then you will find my article on common workers comp defenses more relevant and helpful.
But if you are in the right place, keep reading to learn more. And if you have any questions about your case, such as how to negotiate a car accident settlement, call me for a free consultation: (804) 251-1620 or (757) 810-5614. Come see why colleagues and past clients have voted me one of the best auto accident attorneys in Richmond and Newport News.
The defendant in your personal injury claim may point to your actions or carelessness as a defense against the claim.
There are three defenses that can be used based on your actions before and during the accident: (1) contributory negligence; (2) comparative negligence; and, (3) assumption of risk.
In Virginia contributory negligence is a defense to a tort claim based on negligence.
Under the doctrine of contributory negligence, you cannot recover monetary damages if your own unreasonable conduct or carelessness was a contributing cause of the accident and injuries. The reason for this defense is a belief that a person should not recover money if they contributed to their own injury.
Here is an example of contributory negligence:
You are driving your car 40 miles per hour when the speed limit is 25 miles per hour. Your speeding is the negligent action.
A defendant truck driver is driving down the wrong side of the street, coming straight toward you. This act is negligent.
The two vehicles crash and you suffer catastrophic injuries, including whiplash, traumatic brain injury and post-concussion syndrome.
Under the defense of contributory negligence, you are not entitled to damages because you were speeding, even though the truck driver could have avoided the crash by driving down the right side of the street.
Virginia is one of just five jurisdictions that allows the defense of contributory negligence. Most other states have found it to be too harsh of a rule because it is a complete and absolute bar to an injured person’s recovery, even when the defendant is mostly to blame for the accident and injuries.
To reduce unfairness in the contributory negligence doctrine, Virginia has adopted the rules of last clear chance. These rules state that you may recover monetary damages despite your own contributory negligence if:
For more information, read my article on the defense of contributory negligence in Virginia.
Like contributory negligence, comparative negligence is a defense based on the plaintiff’s conduct. But unlike contributory negligence, comparative negligence is only a partial defense to a tort claim based on negligence. Rather than barring you from receiving any money, comparative negligence reduces the amount of damages you can receive.
There are two types of comparative negligence: pure comparative negligence and modified comparative negligence.
Under either type of comparative negligence you may recover damages even though your negligence contributed to the accident and injuries. But you will recover less.
Here is how it works.
When a defendant raises the defense of comparative negligence, the judge or jury must compare the conduct of the defendant and you in the case. Then the court assigns liability for the accident and injuries in percentage terms. You are allowed to recover the portion of damages equal to the defendant’s share of the fault.
For example, if you have filed suit against one defendant, then the court may find based on the evidence that the defendant was 90% at fault and you were 10% at fault. The court would then allocate damages based on these percentages.
Thirteen states recognize the pure comparative negligence rule.
Under this rule you can collect damages even if you were mostly at fault. But your damages are reduced by the percentage of your fault.
Here is an example of how the comparative fault rule works:
You hurt your back in a truck accident and file a lawsuit. After a trial the jury finds you have $100,000.00 in damages but were 75% at fault for the accident. As such, you will receive only $25,000.00 for your injuries.
A majority of states recognize the modified comparative rule, which is broken into two categories:
Because Virginia follows the contributory negligence doctrine, the comparative negligence approach is rarely used in personal injury claims in Virginia. There are, however, a few exceptions where you may recover some portion of the damages despite your unreasonable conduct. These exceptions include:
Comparative Negligence is Used in Some Claims Based on Railroad Crossing Accidents
Comparative negligence applies in some railroad crossing accident claims.
Virginia Code Section 56-416, titled Effect of Failure to Give Statutory Signals, states:
If the employees in charge of any railroad engine or train fail to give the signals required by law on approaching a grade crossing of a public highway not protected with an automatically operating gate, operating wigwag signal or other operating electrical or operating automatic crossing protection device, the fact that a traveler on such highway failed to exercise due care in approaching such crossing shall not bar recovery for an injury to or death of such traveler, nor for an injury to or the destruction of property in his charge, where such injury, death, or destruction results from a collision on such crossing between such engine or train and such traveler or the property in his charge, respectively; but the failure of the traveler to exercise such care may be considered in mitigation of damages.
This statute overrules the common law rule of contributory negligence, but only if your injury meets all the criteria. If your injury does not, then contributory negligence not comparative negligence applies.
Comparative Negligence Applies to Personal Injury Claims under the Federal Employers’ Liability Act (FELA) in Virginia
The Federal Employers’ Liability Act (FELA) is a federal law that protects and compensates railroad workers injured on the job.
Unlike state workers compensation laws that are meant to provide medical treatment and wage loss benefits regardless of fault, FELA is not meant to provide monetary payouts automatically. An injured railroad worker must prove that their employer’s negligence caused their injury to win.
After you prove negligence under FELA, your employer may then raise the defense of comparative negligence. If the judge or finds you were partially at fault, then the amount of damages you receive is reduced by that percentage.
Comparative Negligence Applies to Personal Injury Claims Determined Under Admiralty/Maritime Law
If you suffer personal injuries on navigable waters, even those within Virginia, then maritime law may apply.
Under maritime law you may collect damages for injuries even if you were negligent, though your negligence is considered in determining the amount of damages you are awarded.
The defendant may raise the defense of assumption of risk if you knew the activity that caused harm was dangerous and voluntarily accepted the risk of injury.
In Virginia there are two types of assumption of the risk: express assumption of the risk and implied assumption of the risk
The defense of express assumption of risk is based on contract law. It is available when you agree, either orally or in writing, that the defendant is not responsible for any damages or injury you suffer while doing a specific activity.
When the agreement is put in writing it is called a “Pre-Injury Release,” or “Release” for short. If you have young children like me, then you are probably familiar with these types of documents because you are often asked to sign them at places that host kid birthday parties.
Often these pre-injury releases stating that you expressly assume the risk of the activity and the defendant is not responsible for any harm you suffer are valid and enforceable. But some courts do not like these agreements and have narrowed their effectiveness in certain situations.
For example, a court may refuse to recognize an express assumption of the risk defense if:
When there is no contract, the defendant might raise the defense of implied assumption of risk to defeat a personal injury claim based on negligence.
Courts in Virginia use the subjective or actual knowledge test when deciding if there was implied assumption of the risk. Under this test, you will be barred from recovery if:
The defendant has the burden of proving each of these elements by a preponderance of the evidence.
A defendant can point to its legal status to try to defeat a negligence claim.
The six most common status-based defenses are: (1) sovereign immunity; (2) intrafamily immunity; (3) charitable immunity; (4) shopkeeper immunity; (5) the Good Samaritan defense; and (6) the workers comp exclusivity bar. If one of these immunity defenses applies, then a defendant cannot be sued for negligence for public policy reasons.
For years you could not sue the U.S. Government for personal injuries caused by a person acting on its behalf.
But in 1946 Congress passed the Federal Tort Claims Act, which waived this immunity partially.
The Federal Tort Claims Act allows you to sue for some types of wrongs, but not all. And individual federal employees may have separate immunity rules available to defeat your negligence claim.
In 1981 the General Assembly passed the Virginia Tort Claims Act, which allows you to sue the Commonwealth of Virginia for:
damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth … if a private person, would be liable to the claimant for such damage.
The Virginia Tort Claims Act does, however, carve out several exceptions where you cannot file suit. And it limits the amount of money you can receive for your damages.
Unless you have a tort claim under the federal Civil Rights Act, winning a negligence claim against a county or city in Virginia is difficult.
Counties have the same immunity as the Commonwealth of Virginia.
Cities have immunity from liability for negligence when performing or failing to perform governmental functions. But not when performing or failing to perform proprietary functions. Many tort claims against cities, therefore, turn on whether the function is governmental or proprietary, which is often difficult to determine.
Neither cities nor counties can use the sovereign immunity defense to defeat personal injury claims brought under the federal Civil Rights Act.
In the past husband and wife could not sue each other for negligence.
But that is no longer the case in Virginia.
The Virginia General Assembly abolished the common law defense of interspousal immunity in tort in 1981. See Virginia Code Section 8.01-220.1. That means husband and wife can sue each other in tort.
When a Parent’s Negligence Causes Harm
For years Virginia did not allow a child to sue a parent for personal injuries caused by the parent’s negligence.
But that is no longer the case in personal injury claims involving motor vehicle accidents.
In Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190 (1971), the Supreme Court of Virginia held that a child could sue a parent for injuries sustained in a car crash. To date the Supreme Court of Virginia has not extended the liability of a parent for negligent acts beyond motor vehicle accidents.
When a Parent’s Intentional Misconduct Causes Harm
Intra-family immunity does not apply to personal injury claims alleging intentional torts committed by a parent against a child.
If the parent’s intentional act causes the child harm, then the child may sue the parent.
In Virginia charitable institutions have immunity from personal injury claims alleging negligence.
In Bailey v. Lancaster Ruritan Recreation Ctr., Inc. 256 Va. 221, 224, 504 S.E.2d, 621, 622 (1998) (citations omitted) the Supreme Court of Virginia stated:
Under the doctrine of limited immunity applicable to charities in Virginia, a charitable institution is immune from liability to its beneficiaries for negligence arising from acts of its servants and agents, if due care has been exercised in their selection and retention.
The critical issue in personal injury cases against companies alleging they are charitable institutions is, therefore, whether they are actually a charitable organization.
For more information, read my article on Charitable Immunity and Medical Malpractice Lawsuits in Virginia.
To promote helping others who are hurt or in danger, Virginia has passed a Good Samaritan Statute that gives immunity to certain people.
The statute, Virginia Code Section 8.01-225, gives immunity to persons who in good faith render emergency care or assistance, without compensation, to any ill or injured person (i) at the scene of an accident, fire, or any life-threatening emergency; (ii) at a location for screening or stabilization of an emergency medical condition arising from an accident, fire, or any life-threatening emergency; or (iii) en route to any hospital, medical clinic, or doctor’s office.
This same statute gives immunity to other persons acting under certain circumstances. It does not, however, give immunity from liability arising out of the negligent operation of a motor vehicle.
Virginia Code Section 18.2-105.1 gives immunity to merchants, businesses, and their employees that cause harm when detaining a suspected shoplifter.
That statute, titled Detention of Suspected Shoplifter, says:
A merchant, agent or employee of the merchant, who has probable cause to believe that a person has shoplifted in violation of Section 18.2-95 or Section 18.2-96 or Section 18.2-103, on the premises of the merchant, may detain such person for a period not to exceed one hour pending arrival of a law-enforcement officer.
The immunity only applies, however, if the merchant and its employees act reasonable and do not use excessive force under the circumstances.
If you are hurt on the job, then workers compensation is your sole remedy against your employer, co-worker, or any sub-contractors that perform the same type of work as your employer. See Virginia Code Section 65.2-307.
But there are some exceptions. And to use this defense your employer must raise a special plea, either before it answers your lawsuit or at the same time it answers your lawsuit.
For more information on this topic, read my articles on Third Party Civil Actions and Workers Comp and Workers Compensation as Your Exclusive and Only Remedy After an On the Job Injury.
Depending on the type of injury you suffered, when you discovered you were hurt, the type of claim you have, and who the defendant is, different time limitations for giving notice of a claim and filing a lawsuit may apply.
Do not ignore these deadlines, or you may waive an otherwise strong claim and recover nothing for your damages.
Generally the statute of limitations is 2 years for a civil action alleging personal injury. But other time limits may apply.
For more information on what deadlines might apply to your negligence claim, read my articles on Personal Injury Statutes of Limitations in Virginia and How to Sue State or Local Government for Personal Injuries in Virginia.
If you were injured by another person’s carelessness, chances are that person’s insurance company has a team of claim adjusters and defense attorneys looking for ways to limit the amount of money you get. Shouldn’t you have someone looking out for your interests?
To learn more about how I can help, including defeating possible defenses to your negligence claim and overcoming other obstacles that stand between you and a full recovery, call me: (804) 251-1620 or (757) 810-5614. I help accident victims throughout Virginia negotiate top dollar personal injury settlements and win at trial. And I am ready to help you.