Every day life can be unpredictable. Imagine you’re walking across the street. You look at your cell phone to see the message that just came in. Suddenly, a driver drifts into your crosswalk and hits you. You’re hurt, and you have to go to the hospital. You’re angry at that driver. But then you realize: You weren’t really paying attention. Might that hurt your ability to get compensation for your injuries?
At Shapiro, Washburn, & Sharp, we’ve helped our clients manage this very type of situation. It involves one of the most confusing legal obstacles in the state of Virginia—one called contributory negligence.
Contributory negligence is an old legal doctrine that can completely block your injury claim if you’re even slightly at fault. It’s harsh, but still relevant in our state and three others in the nation. Below, we’ll explain what it means, why it matters, and what you can do if this applies to you. Our Virginia Beach personal injury attorneys can help carefully examine your case to see if you may have an avenue to legal recovery. Call us today at 833-997-1774 for a free consultation.
What Is Contributory Negligence?
Contributory negligence is a doctrine inherited from common-law courts, which are courts that follow the legal traditions of England. Whereas civil law systems rely on written codes and laws, common-law systems are heavily based on court decisions and legal precedents.
When English settlers first came to America, they brought this legal tradition with them. Most states in the United States have amended their laws through legislation or new court decisions to allow victims to recover compensation even if they were partially at fault, a concept known as “comparative fault.” But Virginia and North Carolina have kept the contributory negligence rule in place. Only Alabama, Maryland, and the District of Columbia have done the same.
Under this rule of contributory negligence, the injured party is prevented from recovering any damages if they contributed to their own injury, even if that contribution was a meager 1 percent. That means even if the other party or parties were 99 percent responsible for your accident, if the insurance company or the courts determine that you were 1 percent responsible, you can’t get any of your medical expenses or other damages reimbursed.
The burden of proof for contributory negligence lies with the defendant. That means the party primarily responsible for the accident has to successfully prove that the plaintiff’s actions contributed to their injury. If they manage to do that, the plaintiff’s claim is entirely defeated.
Let’s say you changed lanes without signaling. A speeding driver rear-ends you. Even if they were speeding, your failure to signal could still entirely block your recovery.
Why Is Contributory Negligence Important?
It’s important to understand how contributory negligence works because it may come into play in your personal injury claim. Insurance companies and defense attorneys will aggressively search for any evidence that the victim somehow contributed to their injury. They know that even a tiny bit of fault can let them off the hook. This creates a higher burden on the part of the injured party to prove they were completely blameless.
The harsh nature of this doctrine also affects settlement negotiations. If you don’t have an experienced personal injury attorney fighting for you, you may feel pressured to settle for less than you deserve because you’re afraid you may risk a complete loss if you go to trial.
The fact that only five jurisdictions maintain this doctrine highlights how out of step it is with modern legal thinking. Nevertheless, it remains, so it’s important you know about it and take steps to get around it if you can. There are some exceptions to the rule.
Are There Exceptions to Contributory Negligence?
Even in Virginia and North Carolina, courts have recognized that contributory negligence can be too harsh in some situations. Some common exceptions to this rule include the following.
Last Clear Chance Doctrine
This rule says that even if you were partially at fault, you can recover if the defendant had the final opportunity to prevent the accident but didn’t take it. For example, if you were jaywalking across a street but the driver saw you in plenty of time to stop, but instead continued driving to hit you—perhaps thinking you would eventually move out of the way—you could still recover compensation.
Willful and Wanton Exception
If the at-fault party’s conduct was particularly egregious, the injured party’s negligence may not completely bar recovery. For example, let’s say you’re speeding 5 miles per hour over the limit when a drunk driver runs a red light and crashes into you. Your speeding would usually mean you were partially responsible for your injuries, but the drunk driver’s conduct was so much more egregious that the judge or court may allow your claim to proceed.
Statutory Violations and Negligence Per Se
If someone violates a statute that was designed to protect people in your situation, contributory negligence may not apply. For example, let’s say a construction worker is injured when a contractor fails to provide proper safety equipment, which violates OSHA regulations. Even if the worker was careless and contributed to their injury, the contractor’s violation of worker safety laws may prevent the use of contributory negligence as a defense.
Children and People with Limited Capacity
In Virginia and North Carolina, the contributory negligence rule doesn’t always apply the same way to children or people with mental or cognitive impairments. For example, if a 6-year-old child wanders into the street and is hit by a speeding driver, under standard contributory negligence rules, that child would be partially at fault for their injury. But because the child is under the age of 7 and legally incapable of negligence, the family could still pursue compensation against the driver.
How a Personal Injury Attorney Can Help
Because of the severity of the contributory negligence rule, it’s crucial to carefully prepare your evidence to show you did not contribute to the accident. Consulting with an experienced personal injury attorney can help you build your defense against these types of claims.
At Shapiro, Washburn, and Sharp, we’ve guided clients through cases in Virginia and North Carolina where contributory negligence was raised as a defense. We know how to counter it, using evidence, witness testimony, and legal exceptions to protect your right to compensation.
We will always do everything we can to fight for your rights, as we did for our client who was killed when a van driver hit her as she rode her bicycle across the parking lot driveway. Her family hired us, and we helped negotiate a $1 million settlement for her beneficiaries.
Contact us for a free consultation. We have offices in Virginia Beach, Portsmouth, Norfolk, Suffolk, Hampton, and Chesapeake.
