Fredericksburg Personal Injury Attorney Nathan J. D. Veldhuis

Richmond Personal Injury Attorney R. Clayton Allen

Authors: Attorneys Nathan J. D. Veldhuis & R. Clayton Allen

Contributory Negligence is the legal doctrine in Virginia which provides that a plaintiff’s negligence, no matter how slight, that contributes in some way to her injuries, no matter the extent of the negligence of the Defendant, bars the plaintiff from recovery for those injuries.  Most states have the legal doctrine of comparative negligence, which says that if both the plaintiff and the defendant are negligent, then you compare the negligence of each to determine the percentage of the plaintiff’s losses that the plaintiff can recover.[1]

The law of contributory negligence in Virginia continues to evolve.  Many of the harshest aspects of the doctrine have been further clarified by the courts, in ways that show the doctrine is more narrowly limited than was previously thought.  An example of this is in the way the doctrine has been applied to premises liability cases involving injury (so-called “slip and fall” or “trip and fall” cases).   Many plaintiffs have lost their claims for injuries resulting from a fall on an object on the floor in a grocery store because they are held to be “contributorily negligent” for not seeing what was on the floor and caused them to fall.   Applying the doctrine this harshly ignores the fact that when people walk, they do not stare at their feet or the floor in front of them.  Studies have shown that most people tend to look about 3 to 10 feet in front of them as they walk forward, and that they also look to the side and further in front of them, too.  But most retail stores have displays that are designed to draw your attention away from where you are walking and instead to merchandise offered for sale.

In 1962, the Virginia Supreme Court considered a case that involved a woman who fell when she slipped on some starch on the floor in a grocery store.[2] The Court noted that the floor was white and the puddle of starch was blue, and held that “reasonable people could not differ” that a person taking ordinary care for their own safety[3] would have seen the starch on the floor.  Therefore, “as a matter of law” [4] the woman was contributorily negligent in falling and could not recover against the store for her injuries.  The Court apparently did not put much weight on the fact that the woman was pushing a cart in front of her so her view was blocked, and that she had rounded the corner at the checkout counter just before she fell so she had only a short time to see what was on the floor.  The Court’s view appears to have been that since it was there, and since if you looked at it you would see it, then she was negligent for not seeing it.  The Court also did not seem to consider that the woman had the right to assume that the store had met its duty to keep the premises in a reasonably safe condition for her visit, and that she would not have expected such a spill to have been left on the floor in one of the busiest areas of the store in the front where all the cashiers were located.[5]

More recently, the Virginia Supreme Court was confronted with a case where a Circuit Court Judge held that “as a matter of law” a woman who fell in a Food Lion store was contributorily negligent, and dismissed her case.  The woman appealed her case.  In this case, the injured woman tripped over a metal bar attached to the floor which extended along the side and to the front of an ATM located inside the grocery store.  (Apparently these bars were to prevent shopping carts from being pushed into the ATM).  The sole issue considered on appeal was whether the plaintiff was contributorily negligent as a matter of law.  The woman said she had walked up to the ATM with her three year old grandson.  While she was using the ATM, her grandson suddenly moved away from her causing her to turn and move towards him to stop him from running away.  As she did so, she tripped over one of the metal bars and fell, fracturing three bones in her right elbow.

The trial court (the Circuit Court) had held that the bars protruding from the sides of the ATM represented an “open and obvious” hazard and that the plaintiff was contributorily negligent as a matter of law because she should have seen the bars if she had looked where she was going.  This time, the Virginia Supreme Court notably expressed its dislike of trial courts’ “incorrectly short-circuiting litigation pretrial.”  The Court assumed – but did not decide — that the metal bars were an open and obvious dangerous condition on the premises.  Even so, the Court noted that the woman was distracted and was injured by an open and obvious defect that the store had created, but that there was still a jury issue as to whether the woman was contributorily negligent.  The Supreme Court said that “reasonable minds could differ” as to whether, under the circumstances of this case, the woman acted as a reasonable person would have acted using ordinary care for her own safety.

Between the first case in 1962 and the second case in 2009, the Virginia Supreme Court has gradually clarified that the proper standard is not whether a condition is “open and obvious” if you look at it, and that a person’s failure to look down while stepping forward does not, as a matter of law, constitute contributory negligence in every case.  The Court has shown an increasing “sophistication” at considering a variety of issues and facts that make up the circumstances of each case.   Considering the factors of the age and infirmity of the plaintiff, any distractions (especially those created by the store), lighting, and the many details of whether an injured person’s actions were reasonable in light of the responsibility of the store to make the premises safe for the public, and what is foreseeable, more often than not reasonable people could differ and the case should be decided by a jury.[6] In short, as a general rule, under Virginia law, if a defendant claims the injured person was negligent and that her negligence contributed to her injuries, then a jury gets to decide if the evidence supports that claim.

About the Authors: Nathan is a Fredericksburg accident attorney with Allen & Allen. He has broad litigation experience in fields as diverse as professional malpractice, personal injury, defamation, medical malpractice and mental health law. Clayton Allen is a Richmond accident attorney and is a seasoned litigator. He has successfully handled all types of personal injury cases including brain injury, car accidents, trailer trailer accidents and wrongful death.

[2] Great A&P Tea Co, v. Rosenberger, 203 Va. 378, 124 S.E.2d 26 (1962).

[3] “Negligence” is defined as the failure to use ordinary care.  “Ordinary care” is defined as “the care a reasonable person would have used under the circumstances.”  Thus the law does not require that a person be very careful or take the highest level of care; only ordinary care is required.

[4] When an issue is very clear, then a jury does not get to consider the facts to decide the issue; the court decides the issue “as a matter of law.”  In Virginia, this standard is expressed as “when reasonable people could not differ.”  In other words, all reasonable people considering the issue would have to agree. Normally only when the facts are very clear is this true.

[5] The law in Virginia requires that a business open to the public has a duty of “prevision, preparation and lookout.” This has been true since at least 1919; see the case of Pettyjohn & Sons v. Basham, 126 Va. 72, 78, 100 S.E. 813, 815 (1919).   In exercising its duty of “prevision, preparation and lookout”, a store must educate its employees about safety and specifically, about the risk and danger of falls.  In fact, falls are the largest single cause of injuries in retail stores and commercial businesses in the United States.

[6] Another interesting case involved an elderly woman who stepped from a hallway into an elevator that was misaligned (hadn’t stopped level with the hallway floor), fell and was injured.  Even though the woman testified that if she had looked directly at it, she thought she could have seen the misalignment, the Court held that factors such as the poor lighting in the hallway and the woman’s vision problems meant her contributory negligence was still an issue for the jury.  See Ravenwood Towers, Inc. v. Woodyard, 244 Va. 51, 419 S.E.2d 627 (1992).

Attorney R. Clayton Allen

Author: Attorney R. Clayton Allen, Esquire

In Part One, I talked about some considerations of why you might hire a personal injury attorney, and some ways insurance companies may take advantage of you if you don’t have an attorney. In Part Two, I’ll discuss some additional considerations.

1. The more money that is involved, the more you have to lose if you handle it wrong. And the more incentive the insurance company has to take advantage of you.

If your injuries and losses are small, then if you make a mistake in handling your claim then you haven’t lost much. However, if your losses are more substantial, then you have more at risk if you make a mistake. And the insurance company has more incentive to help you make that mistake.

2. Insurance companies train their adjusters to keep people from going to an attorney. The insurance companies call that “controlling the case”.

Why would they do that? Because the insurance companies know that an experienced and knowledgeable attorney will be able to ascertain the full extent of all your damages and losses that you are entitled to collect, will know what a fair value for those losses is, and will file suit if the insurance company won’t pay it. In other words, because the insurance company knows they’ll have to pay out more money if you have an attorney.

3. Most personal injury attorneys charge one-third of the recovery as a fee.

Because your attorney is charging a percentage of the recovery, even if he does a lot of work but doesn’t recover much, you won’t owe him much. The attorney’s financial incentive is to get as much money for you as possible. Suppose your tax preparer’s fee was only a percentage of the money he saved you on your taxes. How hard do you think he’d look to find you more savings?

Some people think a third (thirty-three per cent) sounds like a lot. Usually that’s because they don’t know what the markup is one most of the products they buy. Did you know that the average hot dog vendor on the corner is charging you fifty to sixty-three percent of the price you pay for what you buy? (1) Did you know that when you get a repair at the auto body shop, they are charging you 25% to over 100% “fee” added to the cost of the parts they provide (labor is extra)? (2) Even when you buy a shirt from a store, the store is charging you about a third of the cost you pay. (3) What about paper and envelopes (stationery)?  Average is 40%. (4) So with extensive education, experience and skill required to be an attorney, one-third is a bargain compared to what you pay for products you buy. And remember, too, that the attorney doesn’t get paid until you get paid, too. If the insurance company is difficult, a case may last a year or more, and the attorney doesn’t get paid anything for all the work done until the very end. In the meantime, normally not only is he paying his staff and office expenses and insurance and everything else, he’s also fronting the expenses to file suit, pay doctors for conferences and depositions, court reporter charges, medical records charges, and many other expenses. It’s not unusual for our Firm to be fronting expenses to clients that total in excess of a million dollars, for which we charge no interest. (Many of our competitors do charge interest on advanced expenses, but we do not).

4. You may never have a more educated, more skilled, more experienced advocate for you than when you have a personal injury attorney.

Almost all attorneys have successfully completed a four year college, successfully completed a three year law school, and successfully passed a rigorous licensing examination to be able to practice law. In our Firm, we have attorneys who have attended some of the top colleges in the country, we have attorneys who have attended some of the top law schools in the country, we have attorneys who are listed in the “Best Lawyers in America” books, we have attorneys who have received local, state, national and even international recognition for their accomplishments in the law. We have attorneys who have successfully tried many difficult cases in court on behalf of our clients and have obtained a number of the top verdicts in Virginia. And we enjoy helping people.

Attorney R. Clayton Allen

Author: Attorney R. Clayton Allen

As a personal injury attorney, one of the questions I am most frequently asked is why an injured person needs to hire an attorney to represent them. Here’s an outline of how I usually answer that question.

Sometimes you don’t. If your injuries are relatively minor, if your medical treatment is for only a short period of time, and if your medical expenses and other damages are small, and if you are pretty savvy about business matters and negotiating generally, then you may be able to negotiate a settlement with the insurance company that will net you about the same or maybe even a little more than if you had an attorney. But that’s a lot of ifs, and that only applies to small cases for reasons I’ll discuss below and in Part 2 of this article. Consider the following:

1. Insurance companies have professional adjusters who handle their claims for them, and that’s who you’ll be dealing with.

These are trained professionals whose job it is for your case to cost the insurance company as little as possible. And that means for you to receive as little as possible. They are trained in how to handle claims and how to do that. They know that you have not hired an attorney and that you probably don’t want to. The adjuster assumes you are a person who is willing to struggle along on your own without getting the information and help that you need. And that creates the opportunity for you to be taken advantage of.

2. When you are trying to handle something that you are not knowledgeable about or experienced in handling, it’s very stressful.

You are making decisions about your claim without knowing how to properly make the decisions. Should you give a recorded statement to the insurance company? Should you sign the authorizations the insurance company wants you to? Are you including all the items that you can claim for in your case? Are you calculating them the right way? Is the amount the insurance company offering in settlement a fair amount? Should you sign the release they want you to as part of the settlement?

Facing all these decisions without the proper knowledge and information to feel comfortable with the decisions you are making will make most people miserable. Isn’t the peace of mind of knowing it’s being properly handled to protect your legal rights worth something? And if you end up with the same amount of money as you might net with an attorney handling the case, then in essence you’ve just paid for an attorney you didn’t get. Or the peace of mind.

3. When you are trying to handle something that you are not knowledgeable about or experienced in handling, and money is involved, you are likely to be taken advantage of.

Many people do not like to buy a car. Why? Often because the salesman is very skilled at getting you to buy and you are worried about being pressured into buying, but also because you don’t really know which car is best and what is a good price. When you deal with an insurance adjuster, usually you are dealing with a very knowledgeable professional who is trained to persuade you to do what the insurance company wants and, ultimately, to accept a low offer. The adjuster knows “how the system works” and you don’t. How will an adjuster try to take advantage of you? Well, here are a couple of the most common ways.

Insurance adjusters are trained to try and settle cases shortly after an accident for a small amount of money. The goal is to tempt someone who may not yet fully recognize the extent of their injuries and losses into settling cheap. The insurance company wants a quick settlement for a low amount so it can avoid having to pay a larger amount later when the losses are fully known. In the industry, it’s called “flash money”. The idea is to “flash” the prospect of immediate money in front of the injured person in hopes they’ll take it. That’s just one of the ways that insurance companies try to take advantage of injured people.

Another way insurance adjusters take advantage of claimants is the recorded statement. The insurance adjuster knows the right words to use in asking the questions to lead you into saying things using words that have a meaning or effect that you didn’t realize. That type of interviewing is a learned skill.

Many people are shaken up after an accident, and have a fuzzy memory of the events of the accident. There’s a medical reason for this. Often in the whiplash motion that accompanies many impacts, the brain hits against the inside of the skull and affects immediate short-term memory. This is called a “contre coup” injury. (1) Insurance adjusters take advantage of this when they take recorded statements. The questioning may go something like this:

Q: I guess things seemed to happen pretty fast out there when the accident happened.

A: Yes, it’s almost like a blur.

Q: Do you remember seeing how many people were in the other car before it hit you?

A: No, I don’t recall that.

Q: Do you remember seeing the color of the other car before it hit you?

A: No, I don’t recall that.

Q: Do you remember noticing what make and model the other car was before the impact?

A: No, I don’t remember noticing that either.

Q: It sounds like you didn’t notice very much. I guess it happened so fast you didn’t really see the other car before the impact.

A: No, I guess I really didn’t.

What the adjuster knows and you don’t is that Virginia has a rule of law called contributory negligence. Under that rule, even if the other driver is 99% at fault in causing your accident, if you as the injured person are even 1% at fault in a way that significantly contributes to cause the accident, then you lose. You don’t get a dime. And based on your statement, the insurance company will argue that you are partly at fault too, because you weren’t paying attention since the car was in plain view approaching before it hit you in the side. But the truth is you probably did see it, you just don’t remember because of the type of injury you sustained. But the adjuster knows you don’t know that.

About the Author: Clayton Allen is a Richmond car accident attorney with over 20 years of experience with the Allen Law Firm.

Bill Bootwright, Claims Consultant

It’s often been said, and with good reason, that the contributory negligence defense is “an insurance company’s dream” and plaintiff’s “worst nightmare.” Under the common law doctrine of contributory negligence, there is no comparison of fault between the wrongdoer and the injured person. If the injured person is even 1% at fault in a way that significantly contributes to cause the injury, the injured person loses. Technically, this prohibits an injured person from making a recovery from an accident claim even if the other person (the defendant) is 99% responsible for causing the accident.

For example, let’s say that the defendant was driving on a one-way road the wrong way, and the plaintiff, a pedestrian, was walking along the edge of the road when struck from behind by the defendant. The defendant’s insurance company could argue that the plaintiff was negligent for walking on the road. As a result — and conceivably without any real fault on the plaintiff — the insurance company may claim the plaintiff is contributorily negligent and thus barred from making any recovery, and refuse to pay voluntarily.

Any negligent act by the plaintiff is not enough to bar his claim; the act of negligence must be a “proximate cause” of the injury. The “proximate cause” test is whether the negligent act is a cause which, in natural and continuous sequence, produced the injury. In practical terms, it’s an act where the injury would not have occurred without the act, so that the act “caused” the injury. For instance, suppose a driver is traveling 5 miles per hour over the speed limit when another driver runs a stop sign and broadsides him. Clearly the negligent act of driving 5 miles too fast is not a “proximate cause” of the accident, because the accident would have happened anyway.

Only a very few states, including Virginia, have contributory negligence. Most states have some form of “comparative negligence,” where if an injured person is also negligent, then any recovery they receive is reduced by their share of fault. For instance, if an injured person is 1% at fault in causing their injury, then their recovery or award is reduced by 1%. In Virginia and the other contributory negligence sates, an injured person who is 1% at fault, and whose negligence is a proximate cause of their injury, receives nothing.

It has been my experience having worked both sides of the fence – for an insurance company and also for injured persons – for the last 39 years, if there is one piece of advice I would give to an injured person with a claim, it would be not to give a recorded or signed statement to an adjuster for the insurance company. An interview or a non-signed statement should be enough for the insurance company and at the same time will protect your rights should the insurance company attempt to deny your claim based on contributory negligence.

As a contributory negligence state, Virginia is a place where an injured person may need the advice of an attorney more than in comparative negligence states. An adjuster is a paid professional whose job is to make sure a claim costs the insurance company as little as possible. Usually that means for the injured person to get as little as possible. Contributory negligence is one way an adjuster may try to deny a claim. Sometimes just the way an injured person uses to describe the accident may help a smart adjuster to deny the claim.

About the Author: Bill Bootwright is a claims consultant in the Mechanicsville branch of the personal injury law firm of Allen and Allen. A former insurance adjuster, Bill works under the supervision of attorney Christopher A. Meyers to assist clients with their personal injury claims.