Contributory Negligence Laws in Virginia: What are They and What Do They Mean?

Virginia is one of a handful of states that recognizes pure contributory negligence.  When contributory negligence applies, it can produce extremely harsh results. Contributory negligence is the failure to act as a reasonable person (i.e., the plaintiff) would have acted for his own safety under the circumstances of the case. How is contributory negligence different from comparative negligence?

In Virginia, if a jury or the judge finds that both the defendant and the plaintiff were negligent and that their negligence was a proximate cause of the accident, the judge can dismiss the case, or if it goes to the jury and the jury finds that the plaintiff was contributorily negligent, the jury may not compare the negligence of the parties. Any negligence of the plaintiff that is a proximate cause of the accident, no matter how slight, will bar the plaintiff from recovering.   For example, in a case where the jury believes that the defendant is 99% at fault but that the plaintiff’s negligence amounting to 1% fault was a proximate cause of the accident, the plaintiff would be entitled to no recovery.

To offset this harsh result, most states follow some form of comparative negligence.  In most states, the jury is instructed to compare the percentage fault of the parties and adjust the award accordingly.  As a result, Virginia plaintiff lawyers are frequently confronted with cases that might be great in other states but are unwinnable or difficult to win in Virginia.

Does Virginia recognize any exceptions to pure contributory negligence?

Virginia’s doctrine of pure contributory negligence is codified in Virginia Code § 8.01-34. Virginia does recognize exceptions to this pure bar to recovery. For example:

• If someone is injured while riding on a common carrier vehicle like a bus or plane, contributory negligence will not prevent them from recovering damages if the carrier fails to follow a safety code.
• If a victim can prove that the other party had the “last clear chance” to avoid the accident but did not, they may still be able to recover damages.
• If the plaintiff can prove that the defendant’s negligence rose to the level of willful and wanton negligence, the defendant’s negligence will trump the plaintiff’s ordinary contributory negligence.
• If a party’s actions were proven to be intentional or reckless, contributory negligence might not apply. Unfortunately, most liability insurance policies do not cover intentional acts.

Strategies where contributory negligence is an issue

Several strategies can increase a plaintiff’s chance to recover compensation for injuries sustained in Virginia:

• Strong evidence: Eyewitness testimony, accident scene photos, and expert opinions can help strengthen your claim and eliminate any argument that you were negligent and that your contributing negligence was a proximate cause of the accident.
• Legal representation. To successfully prove a personal injury case in Virginia, you need an experienced attorney who understands the distinctions and intricacies of pure contributory negligence laws and knows how to navigate them. Listening to advice from attorneys from states that do not have contributory negligence is a waste of your time. An effective attorney will gather strong evidence, create compelling arguments, and correctly anticipate the legal strategies the other party will apply to reduce their liability.

While the law may seem harsh, other aspects of Virginia’s policies favor plaintiffs.

Virginia damages caps

Although many states place caps on damages, except in medical malpractice, Virginia has no limit to what an injured person can recover in compensatory damages. Compensatory damages compensate for losses, including medical expenses, lost wages, and pain and suffering. This category includes both economic damages and non-economic damages. Economic damages are those that come with actual financial costs, like surgical costs, rehabilitation expenses, or lost earnings that result from time out of work recovering. Non-economic damages are still compensatory but aim to compensate for losses that are difficult to put a number on, like your pain. Unfortunately, Virginia does cap punitive damages, which are intended to punish defendants for particularly wrongful acts, at  $350,000. That number can be on top of unlimited compensatory damages.

Joint and several liability

Joint and several liability is when two or more defendants injure the plaintiff.  Since Virginia is not a comparative negligence state and damages are not allocated by percentage fault, each defendant is liable for the entire amount of the judgment.  This is beneficial to the plaintiff in cases where one or more defendants have little to no assets and insufficient insurance coverage and one or more defendants is a corporation.

Phelan Petty Injury Lawyers have decades of experience navigating these complex laws and maximizing recoveries for our clients who may otherwise have recovered nothing or very little with less experienced counsel. To set up a free initial consultation with an experienced Virginia car accident attorney, call Phelan Petty or fill out our contact form. We’re conveniently located near I-64 and Route 250 in Richmond. Call today.