In brief:

Virginia is one of only four remaining states that continues to impose the harsh, old doctrine in personal injury cases called “contributory negligence.” This outdated doctrine arose as judge-made common law, tracing its roots back to England’s own centuries-old cases. The defense of contributory negligence can prevent an injured plaintiff from recovering any damages caused by the negligence of the defendant. Even in cases where the defendant’s negligence was almost entirely responsible for injuring the plaintiff, the plaintiff cannot recover if the defendant can prove that the plaintiff was even partly negligent. Meaning, if a jury agrees that the plaintiff also failed to act as a reasonable person would have, and that failure played some part in causing the plaintiff’s injuries, the defendant wins outright in Virginia courts.

Contributory negligence is obviously a harsh rule, because it permits defendants primarily responsible for causing injuries to escape any liability where they can partly blame the plaintiff. Because this defense is usually an “issue of fact,” a jury must decide whether a plaintiff is contributorily negligent. This occurs at a trial—the end of a long and often expensive litigation process. So, plaintiffs (and their law firms) must invest substantial time and expense to go prove not only their own claims at that trial, but take the risk of recovering nothing if a jury believes the plaintiff to be even partly at fault. In practice, this can prevent a deserving, severely injured plaintiff from recovering anything against a responsible defendant who was the primary cause of a car wreck, fall or other injury.

Because this defense contradicts good policy of shifting the cost of those injuries to a negligent defendant, many states have replaced contributory negligence with a modified doctrine such as comparative fault (either apportioning liability directly to the level of responsibility, or requiring a plaintiff to be more than 50% responsible to lose). Virginia’s legislature, however, has preserved the old doctrine.

Fortunately, while contributory negligence can have disastrous consequences for a Virginia plaintiff who is only partially responsible and effect a windfall for undeserving defendants, there are procedural safeguards which at least allow plaintiffs to get their case to a jury. Excellent trial lawyers want to get a case to trial, and to place the outcome in the hands of an informed jury. While there is always risk of a bad decision, the opportunity for clients to get their “day in court” is the most important leverage of a legitimate settlement, or a fair award of money. For that reason, insurers and defense lawyers frequently try to obstruct this by dismissing a claim without a jury’s consideration.

The Virginia Court of Appeals recently decided such a case involving the defense of contributory negligence. In Spivey v. Thomas, a defendant driver struck Ms. Thomas with a car, while she crossed the road walking inside a pedestrian crosswalk. The Defendant claimed that Ms. Thomas should have seen her car while walking through the crosswalk, and taken action to avoid being hit. At trial, Ms. Thomas testified that she looked both ways prior to entering the crosswalk and didn’t see any traffic coming. She further testified that she didn’t look a second time after she entered the crosswalk. However, Ms. Thomas agreed that she would’ve seen the car had she looked again. Fortunately, the injured party reached the trial, and kept the verdict in her favor due to the wise decision of a civil jury not to blame her for contributory negligence. The jury found in favor of Ms. Thomas and awarded her $50,000.00 in damages.

On appeal, the defendant argued that the jury never should have had the chance to make that decision. The defendant argued that the facts established that Ms. Thomas was contributorily negligent “as a matter of law”—meaning that the court should direct a verdict for the defendant and dismiss the case because Ms. Thomas had to be partially to blame. Reviewing the evidence, the Court of Appeals confirmed that a contributory negligence decision in the context of pedestrians being struck by automobiles is “almost invariably one for the jury,” not for the trial court. The Court concluded that while a jury could find Ms. Thomas “may have been negligent in failing to continue looking left and right as she continued” forward, reasonable jurors could certainly differ as to whether such negligence was a proximate cause of the collision. As a result, the Court affirmed the jury’s verdict. While that was good news for Ms. Thomas, it is implied that had jury instead found her to be contributorily negligent and found for the defendant instead, the Court of Appeals may have upheld that decision as well.

Many car wreck, pedestrian, bicycle and fall cases will, inevitably, involve some allegation that the plaintiff didn’t act with the required level of care. The Defendant will always attempt to say that the plaintiff didn’t do enough to avoid injury by driving a little too fast, not looking enough times in an intersection or crosswalk, etc. Virginia cases even suggest that a driver operating with the right of way (such as with a green light) can be contributorily negligent for failing to anticipate the behavior of another, negligent driver if a reasonable person would have done so. The defense manipulates these standards to attempt to blame the victim and for insurance companies to avoid paying for a driver’s negligent actions. Sometimes it works, and sometimes it doesn’t—but the major risk falls most harshly upon the injured person who was operating within the law.

Because the consequences of contributory negligence are so harsh, an injured person considering pursuing a personal injury case will need to be prepared and explain everything they did, considered, and perceived leading up to the moment of injury, as these details are crucial to proving reasonableness. Adept counsel recognize that such details are very important in answering interrogatories, giving deposition testimony and in testifying at trial. The insurer’s attorney will often attempt to magnify or manipulate the slightest vagueness or inattention to create an unjust but available contributory negligence defense.

The attorneys at Munro Byrd, P.C., have experience in opposing such defenses and in applying the available standards of Virginia law to effect the most just outcomes possible. This requires a dedication not just to courtroom presentation of evidence, but to articulate written arguments to educate the trial judges on the accurate application of the laws to our clients’ facts. Our attorneys have handled many cases in which the defense tried to blame our clients for their injuries. We give our best to minimize, assess and explain those risks to make sure our clients make decisions about their case with confidence. If you suffered injuries in a car wreck, trucking accident or other injury due to someone’s negligence, the attorneys at Munro Byrd P.C. are happy to discuss your goals and legal options.