The Evolving Law of Contributory Negligence: “Putting One Foot in Front of the Other”

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 Author: 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.

[1] Only four states and the District still have “pure” contributory negligence: Alabama, North Carolina, Maryland, Virginia, and Washington, D.C.   See For more information on “contributory negligence” see , 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.”

[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).