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.”
What is contributory negligence?
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 their injuries, no matter the extent of the negligence of the defendant, bars the plaintiff from recovery for those injuries.
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.
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 they can recover. Only four states: Alabama, Maryland, North Carolina, Virginia – plus the District of Columbia, still follow the law of contributory negligence.
Insurance and contributory negligence
Since the state of Virginia still upholds the law of contributory negligence, it may not be in your best interest 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.
Is contributory negligence in Virginia changing?
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 that the doctrine is more 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 of a grocery store, because they are held to be “contributorily negligent” for not seeing what was on the floor.
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. And most retail stores have displays that are designed to draw your attention away from where you are walking, and instead focus on the merchandise offered for sale.
Contributory negligence in Virginia courts – the 1960s
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. 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  would have seen the starch on the floor. Therefore, “as a matter of law”  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).
Contributory negligence in Virginia courts – the aughts
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. She appealed her case. The injured woman had 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 (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.
Changes regarding contributory negligence in Virginia
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 factors such as:
- The age and infirmity of the plaintiff
- Any distractions (especially those created by the store)
- Whether the injured person’s actions were reasonable in light of the responsibility of the store to make the premises safe for the public
- What is foreseeable
More often than not reasonable people could differ and the case should be decided by a jury.  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.
If you have been injured on a premises through no fault of your own, the experienced attorneys at Allen & Allen offer a free consultation in order to learn more about your unique situation. Call today at 866-388-1307.
 Only four states and the District still have “pure” contributory negligence: Alabama, North Carolina, Maryland, Virginia, and Washington, D.C. See http://wiki.answers.com/Q/What_states_are_contributory_negligence_states. For more information on “contributory negligence” see http://en.wikipedia.org/wiki/Contributory_negligence , where it states: “Contributory negligence is often regarded as unfair because under the doctrine a victim who is at fault to any degree, including only 1% at fault, will be denied compensation entirely.”
 Great A&P Tea Co, v. Rosenberger, 203 Va. 378, 124 S.E.2d 26 (1962).
 “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.
 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.
 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.
 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).