After an accident, fault is not always limited to what the other person did wrong. The other driver, property owner, or insurance company may argue that something you did also contributed to your injuries. In Virginia, even a small amount of fault attributed to an injured person can have serious consequences for a personal injury claim.
Fishwick & Associates PLC represents injured people in Roanoke and throughout Virginia. Led by Roanoke personal injury lawyer John P. Fishwick Jr., our team can review the circumstances surrounding an accident, gather evidence related to fault, address contributory-negligence allegations, and pursue available compensation.
This guide explains Virginia’s contributory negligence rule, what happens when an injured person is found partially at fault, and how doctrines such as last clear chance can come into play. Contact us at (540) 345-5890 to request a confidential consultation.
How Virginia’s Contributory Negligence Rule Affects Car Accident Claims
Most personal injury claims arise out of negligence, meaning that while the injuring party did not intend to harm the injured party, their carelessness resulted in harm to the injured party. The textbook elements of negligence are:
- The defendant owed a duty to the plaintiff
- The defendant breached this duty
- The plaintiff was injured as a result
- The breach of the duty caused harm to the plaintiff, both actually and proximately— meaning that the harm was foreseeable.
But what happens if both the defendant and the plaintiff were negligent?
In most states, the court and/or jury will compare the plaintiff’s negligence with the defendant’s negligence and allocate fault accordingly. For example, if it is determined that the plaintiff is owed $500,000.00 for their injuries, but the plaintiff was 40% at fault, then the plaintiff will only be awarded $300,000.00 in damages (60% of $500,000). In some of these jurisdictions, the plaintiff can only recover if they were at 50% or less at fault.
What Does the One-Percent Fault Rule Mean
Unfortunately, Virginia is one of only four states that asks whether the plaintiff’s negligence contributed at all to their injury. If the answer is yes, regardless of the amount of fault assigned to the plaintiff, they are completely barred from recovering damages. For example, under Virginia’s one-percent contributory-negligence rule, an injured person who is found just 1% at fault can be prevented from recovering compensation from a defendant who was 99% at fault.
Needless to say, this is a very harsh rule for injured people in Virginia.
Who Determines Contributory Negligence?
Defendants to a personal injury action will often attempt to get the case dismissed by asserting contributory negligence, even before trial. While there have been some cases in Virginia where the plaintiff was found to be contributorily negligent as a matter of law, the Supreme Court of Virginia has reiterated, again and again, that, generally, an issue of whether a plaintiff is guilty of contributory negligence is a question of fact to be decided by the trier of fact. In all but a handful of cases, the trier of fact is a jury.
What Evidence Helps Defeat a Fault Allegation
Just as the plaintiff has the burden of proving that the defendant was negligent, the defendant has the burden of proving that the plaintiff was contributorily negligent. Therefore, the most straightforward way of defeating a defense of contributory negligence is to prove that you were not, in fact, at fault.
As noted above, this determination is appropriately made by the jury at trial. There are, however, some legal principles that will weaken a contributory negligence defense, or even prevent the jury from considering it.
First, before an issue of contributory negligence may be submitted to a jury, there must be evidence to support a finding that the plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances. In other words, a defendant cannot simply ask the jury to consider whether the plaintiff was contributorily negligent—they must have some evidence supporting that argument. Thus, depending on the facts and circumstances of a particular case, a plaintiff may be able to completely preclude a defendant from asserting contributory negligence at trial.
Second, for contributory negligence to bar recovery by a plaintiff, the plaintiff’s negligence must be concurrent with the defendant’s negligence. This argument may arise in the context of medical malpractice actions, as a plaintiff cannot be held contributorily negligent unless their allegedly negligent act was contemporaneous with the negligent act of the physician. In other words, there must be some kind of nexus between the defendant’s negligence and the plaintiff’s negligence.
Finally, the issue of contributory negligence may arise from the “open and obvious danger” doctrine. This rule, which applies to premises liability cases, states that if the owner of a premises was negligent in failing to warn the plaintiff about a dangerous condition, the owner will not be liable if the dangerous condition was open and obvious. As with other assertions of contributory negligence, the issue is ordinarily one for the jury to determine.
However, with respect to the “open and obvious danger” doctrine, a plaintiff can defeat a claim of contributory negligence if there was some condition (outside of the plaintiff) that prevented them from seeing the dangerous condition or which would excuse their failure to observe it. The case of Fultz v. Delhaize America, Inc. (a corporation doing business as Food Lion) illustrates this principle well. In Fultz, a customer tripped over a metal bar on the floor in front of an ATM.
But, even assuming that the metal bars were an open and obvious dangerous condition, the customer was distracted from this hazard both by her use of the ATM and the sudden movement of her young grandson. Therefore, the plaintiff was not contributorily negligent as a matter of law; rather, the case presented a jury question.
Virginia Personal Injury Attorney – Fishwick & Associates PLC
John P. Fishwick Jr., Esq.
John P. Fishwick Jr. is a nationally recognized Virginia trial lawyer and founder of Fishwick & Associates PLC, who represents people injured in car accidents and other personal injury matters. His courtroom experience includes cases involving disputed liability, where allegations about an injured person’s own conduct can become an important part of the claim.
John earned his J.D. cum laude from Washington and Lee University School of Law and his B.A. from Harvard University. He served as the United States Attorney for the Western District of Virginia from 2015 to 2017 and previously clerked for U.S. District Judge James C. Turk. He is admitted to practice before the Supreme Court of Virginia, both Virginia federal district courts, the Fourth Circuit, and the U.S. Supreme Court.
How Insurance Adjusters Use Contributory Negligence
Insurance adjusters may look for evidence that the injured person’s own actions contributed to the crash, since contributory negligence can provide a defense to a personal injury claim in Virginia. Statements about speed, distraction, right of way, or actions immediately before the collision can become important when fault is disputed.
Preserve photographs, video, vehicle data, witness accounts, medical records, and other evidence showing how the crash occurred. Be cautious about making statements that assign or accept fault before the circumstances and available evidence have been fully evaluated.
What Is the Last Clear Chance Doctrine
The last clear chance doctrine in Virginia may permit an injured person to recover in a narrow set of circumstances when the defendant had a final opportunity to avoid the injury after the plaintiff was already in peril. How the doctrine applies depends in part on whether the plaintiff was helpless or merely inattentive and on what the defendant actually knew or should have known about the danger.
Are There Exceptions for Gross or Willful Negligence
Gross negligence by a defendant does not, by itself, prevent contributory negligence from barring an injured person’s claim in Virginia. Willful and wanton negligence is treated differently. If the defendant’s conduct rises to that higher level, the defendant generally cannot use the plaintiff’s ordinary contributory negligence as a defense.
An exception applies when the plaintiff’s own conduct also amounts to willful and wanton negligence. In that situation, the plaintiff may still be barred from recovering damages.
Common Contributory Negligence Scenarios
Contributory negligence can arise in many types of Virginia personal injury cases. Common allegations against an injured person include:
- Speeding: Driving too fast for the conditions or exceeding the speed limit before a collision.
- Following too closely: Failing to leave enough distance to stop safely.
- Unsafe lane changes: Changing lanes without signaling or checking surrounding traffic.
- Distracted driving: Using a phone or otherwise failing to pay attention to the road.
- Intersection accidents: Failing to keep a proper lookout, yield, or respond to approaching traffic.
- Pedestrian or bicycle accidents: Failing to observe traffic, follow applicable traffic rules, or take reasonable steps to avoid a collision.
- Premises liability claims: Failing to notice or avoid a hazard that was open and obvious.
These allegations do not automatically establish contributory negligence. The defendant must show that the plaintiff was negligent and that the plaintiff’s negligence was a proximate cause of the injury.
Discuss Your Virginia Personal Injury Claim With Fishwick & Associates PLC
Virginia’s contributory negligence rule can become a key issue when fault is disputed after an accident. An allegation that you contributed to your injuries does not automatically establish contributory negligence, and the facts and evidence surrounding the accident can determine how that defense affects your claim.
Attorney John P. Fishwick Jr. brings decades of trial experience to personal injury cases in Virginia. A former U.S. Attorney for the Western District of Virginia, he has spent his career handling complex matters in state and federal courts and representing clients when significant legal and factual disputes are at stake.
Call Fishwick & Associates PLC at (540) 345-5890 or visit our office at 30 Franklin Rd SW Ste 700, Roanoke, VA 24011 to request a confidential consultation. We represent injured people in Roanoke and across Virginia.
Frequently Asked Questions
Can I recover compensation if I was partially at fault for an accident in Virginia?
Virginia follows the contributory negligence rule. If an injured person’s own negligence contributed to causing the injury, even a small amount of fault can prevent recovery. The defendant must establish that the injured person was negligent and that the negligence was a proximate cause of the injury.
Who has to prove contributory negligence in Virginia?
The defendant has the burden of proving that the injured person was contributorily negligent. There must be evidence supporting the allegation before contributory negligence can properly be submitted to a jury.
Does an insurance company decide if I was contributorily negligent?
An insurance adjuster can argue that your actions contributed to an accident, but the adjuster does not make the final legal determination. When contributory negligence remains a disputed factual issue in litigation, it is ordinarily a question for the trier of fact, which is often a jury.
What evidence can help dispute a contributory negligence allegation?
Photographs, video footage, vehicle data, witness accounts, medical records, and other evidence showing how the accident occurred can be important when fault is disputed. Statements about speed, distraction, right of way, and the actions of those involved immediately before the accident can also affect the analysis.
Can the last clear chance doctrine apply if I was negligent?
In limited circumstances, Virginia’s last clear chance doctrine can allow an injured person to recover even when the person was negligent. The doctrine can apply when the defendant had a final opportunity to avoid the injury after the plaintiff was already in danger, with the specific requirements depending on the circumstances.
Does contributory negligence apply when the defendant was grossly negligent?
Gross negligence by the defendant does not, by itself, prevent contributory negligence from barring recovery. Willful and wanton negligence is treated differently, and a defendant whose conduct reaches that level ordinarily cannot rely on the plaintiff’s ordinary contributory negligence as a defense.
