What is Negligence? A Primer in Virginia Law

Author: Attorney R. Clayton Allen

The basis of all tort (1) law is negligence. In almost every tort case that goes to trial in Virginia, the decision is based on whether the person being sued (the defendant) is guilty of negligence. Usually the judge reads to the jury an instruction that defines negligence as follows: "Negligence is the failure to use ordinary care. Ordinary care is the care a reasonable person would have used under the circumstances."(2) In Virginia, if it's a jury trial, the seven members of the jury must unanimously agree that the defendant was negligent in order for the injured person (the plaintiff) to receive a verdict in their favor.

This definition of negligence is very broad. Usually, a jury will be given additional instructions relating to the facts of the specific case. These additional instructions will tell the jury what the standard of care is under particular circumstances. For instance, if the plaintiff claims that the defendant driver ran a stop sign and drove his truck into the side of the plaintiff's car at an intersection, then the judge will read a form of the following instruction to the jury: "A driver facing a stop sign at an intersection has a duty to stop. Before proceeding, the driver also has a duty to yield the right-of-way to any approaching vehicle. If a driver fails to use ordinary care to perform either or both of these duties, then he is negligent."(3) If the plaintiff claims that the defendant changed lanes and hit his car, then the judge will read an instruction like the following to the jury: "The driver of a vehicle has a duty to drive as nearly as practicable within a single lane and not to move from that lane until he has used ordinary care to see that the movement can be made with safety. If a driver fails to perform this duty, then he is negligent."(4)

You may have noticed from these examples that negligence is based on a duty and a breach of that duty. In order to have legal responsibility to another person, you must have a duty to act. If you are standing on the shore and see a person drowning, you have no legal duty to assist them, so you could not be held legally responsible for not assisting them. (Of course you may have a moral or ethical duty, but you do not have a legal one). On the other hand, if you are driving a car and have a passenger, you have a legal responsibility to drive in a careful and proper manner so that they are not injured. (5) In order to have a successful tort claim, generally there must be four elements present: (1) a duty owed to the plaintiff; (2) a breach of that duty by a defendant; (3) a causal connection between the breach of duty and the plaintiff's damages; and (4) actual damages. The term "negligence" focuses on the first two elements.

The first issue of negligence, whether a duty is owed, is usually a question of law and so is decided by the judge. (6) The second issue of negligence, whether the duty has been breached, is usually a question of fact, and is decided by the jury. (7) Virginia law states that, in a particular case, if the issue of whether the duty was breached is so clear that reasonable people could not disagree as to the conclusion, then the judge should decide the issue and not a jury. However, only when "fair-minded jurors could not differ in resolving the question" does the judge decide the issue. (8) Most of the time these questions are issues which should be decided by a jury. (9) "The issue of negligence should, if at all appropriate, be left to the determination of the jury", the Virginia Supreme Court has said, because such questions ordinarily can only be determined by the sifting and appraisal of facts -- matters which are uniquely suited to determination by a jury.(10)

It's important to realize that negligence is the lack of ordinary care and not some higher standard. The law does not require a person to be especially careful or to be the most careful, but only to be as careful as a reasonable person would be under the circumstances. The level of care often changes as the circumstances change, however. For instance, if you were a juggler and were juggling plastic rings, you might not need to be too far back from the spectators. However, if you are juggling bowling pins, which are heavier, you may need to be further back, to prevent injury to a spectator from being hit by a bowling pin if you dropped it or tossed it away from you by accident. And if you are juggling knives or flaming batons, "ordinary care" for the safety of the spectators might mean you need to have assistants posted to keep the crowd back a farther distance, especially if there are young children present. You may also need to warn the crowd to stay back before you start juggling. And if you were juggling dynamite? Well, you get the point. In all these examples, the duty remains the same; to take the ordinary care a reasonable person would for the safety of others under the circumstances. However, what that ordinary care is changes, depending on the circumstances. What ordinary care is also changes with time. What we now know generally about cleanliness and hygiene certainly requires more of a restaurant owner now than was required fifty years ago, and what a jury might have found was ordinary care for the safety of customers back then almost certainly is not sufficient now. The same is true for businesses with regard to their floors. What we now know about slip coefficients of flooring materials and the effects of cleaning supplies on the slipperiness of floors certainly creates higher expectations of what attention to safety means for the business owner. IF the business owner fails to meet those higher expectations of what is currently considered ordinary care, that's negligence.

Although negligence sounds like a complicated legal term, in fact it's very simple. It's the failure to use the ordinary care that a reasonable person would use under the circumstances. What makes it difficult is that the circumstances do change, and so what is expected changes. However, the standard is still a very useful one. It strikes a balance between demanding too much (by making the standard just "ordinary care") and demanding too little (by making the standard applicable to the circumstances), and also allows for change over time. It's flexible, but the concept is also easily understandable for most people.

About the Author: Clayton is a Richmond personal injury attorney with Allen & Allen. Working out of the Richmond office, Clayton is a seasoned litigator with over 20 years experience handling personal injury cases, including car accidents, truck accidents and premises liability.


1 - Generally, a tort is any wrongdoing (not arising from a contract) for which you can bring an action for damages. It is civil (that is, not criminal) and can be intentional, but more often is the result of carelessness. Examples of situations often involving torts are automobile accidents, motorcycle accidents, trucking accidents, falls in a store or business, medical malpractice, and defective products.

2 - Virginia Model Jury Instruction No. 4.000.

3 - Virginia Model Jury Instruction No. 10.270. Note the gender is changed in the instruction depending on the gender of the defendant.

4 - Virginia Model Jury Instruction No. 10.160.

5 - See Richmond Greyhound Lines Inc. v. Brown, 203 Va. 950, 128 S.E.2d 267 (1962).

6 - Thompson v. Skate America, Inc., 261 Va. 121, 540 S.E.2d 123 (2001), cases cited therein and cases following.

7 - Dudley v. OAR of Richmond, Inc., 241 Va. 270, 401 S.E.2d 878 (1991), cases cited therein and cases following.

8 - For example, see Ford Motor Co. v. Bartholomew, 224 Va. 421, at 432, 297 S.E.2d 675, at 681 (1982).

9 - See Atkinson v. Scheer, 256 Va. 448, 508 S.E.2d 68 (1998), cases cited therein and cases following.

10 - See Meador v. Lawson, 214 Va. 759, 204 S.E.2d 285 (1974), cases cited therein and cases following.

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