Contributory Negligence: A Trap for the Unwary Claimant

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.