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Imagine being hit by a car driven by a negligent driver, and suffering permanent brain damage and other medical conditions that require around-the-clock care. Now imagine your own insurance company denying your claim, arguing that the accident was your fault.
Recently, an insurance company attempted to do just that, leaning on contributory negligence laws, which many lawmakers consider archaic. Read on to learn about these laws, and how they played a part in a controversial case involving a teacher in Alabama.
In 2021, a retired Alabama teacher, Clo Mallory, was hit by a car while running in her neighborhood. As a result of this accident, she suffered catastrophic injuries, which included:
- Nine fractured ribs
- Six fractured vertebrae
- A fractured pelvis
- Permanent brain damage
Tragically, she now no longer recognizes her own family and requires medical care around the clock.
Mallory’s attorneys filed a lawsuit on her behalf in which Allstate, her own insurance carrier, argued that she was at fault for her injuries. The basis of their claim was that she was running on the wrong side of the road (i.e. in the same direction as oncoming traffic).
Mallory’s lawyers were able to prove that she was perfectly visible, wearing a neon yellow hat and T-shirt. They also presented testimony from long-time friends who said that they had trained with Mallory for many marathons over the years, and she never ran with her back to traffic. Through this evidence, Mallory’s lawyers were ultimately successful in combating Allstate’s contributory negligence defense. The jury awarded a $12 million verdict in her favor.
What is contributory negligence law?
Allstate’s defense was based upon Alabama’s contributory negligence laws. Contributory negligence is a legal defense against liability in personal injury cases. It states that if the claimant (or plaintiff) caused or contributed to their injuries, in any way, then the plaintiff cannot recover in a civil lawsuit. This harsh and ancient doctrine is often called the “1% rule,” meaning that if the plaintiff is found to be even at 1% fault, then they cannot recover anything – any amount of money – from the defendant.
Which states still follow contributory negligence laws?
This law is now only observed in a handful of states:
- North Carolina
- The District of Columbia
What is comparative negligence law?
In contrast, most states follow the comparative negligence standard, which means that an injured person can seek compensation from a defendant, even if they may be partially at-fault themselves.
Comparative negligence falls into two types, with different states adopting one or the other:
- “Pure” comparative negligence: An injured person can recover compensation even though they were at fault. However, their compensation will be reduced by the degree to which they were at fault. If you were 90% responsible for the incident that caused your injuries, you will only be able to collect 10% compensation from the other party.
- “Modified” comparative negligence: An injured person can recover compensation from the other party, so long as they were no more than 49% or 50% (depending on the state) to blame.
Examples of contributory negligence
The majority of personal injury cases pursued each year involve automobile accidents. Whether or not a court will find certain conduct to be contributory negligence always depends on the circumstances of the case. There are many nuances. What may be contributory negligence in one case may be irrelevant in another.
However, one can find common examples in Virginia’s motor vehicle code, and the duties that it places on all drivers:
- Speeding: You may have the right-of-way, but if you are speeding, and a vehicle entering the roadway causes a collision with your vehicle, a judge or a jury may find that your negligence in speeding contributed to the accident. Therefore, you may be prevented from receiving money damages from the other driver, even though that driver didn’t have the right-of-way. See Virginia Model Jury Instructions (VMJI) No. 10.000 and 10.295.
- Failing to keep a proper lookout: Virginia law tasks all drivers with paying attention to what is going on around them. “The duty to keep a proper lookout requires a driver to use ordinary care to look in all directions for [vehicles; persons; conditions] that would affect his driving, to see what a reasonable person would have seen, and to react as a reasonable person would have acted to avoid a collision under the circumstances.” VMJI 10.020. Failing to keep a proper lookout can even mean failing to avoid another driver’s negligence.
- Failing to have lights activated: Virginia law requires drivers to have their headlights and taillights activated under certain conditions, such as while driving after dark and in inclement weather. VMJI 10.030. In a collision with another driver who did not have the right-of-way, your failure to have your lights activated may make it impossible for you to recover under a contributory negligence argument.
Contributory negligence can also be raised when you are injured as a pedestrian, as it was in Mallory’s case. Mallory’s case provides several common examples of how a pedestrian might be accused of contributory negligence:
- Running or walking on the wrong side of the road: Meaning that it is always safest as a pedestrian to run in the direction where you are facing traffic, and failing to do so may be considered negligent.
- Failing to be visible to drivers: Wearing dark clothing, especially at night, can make it difficult for drivers to see and avoid you. Mallory was able to overcome this defense by proving that she was wearing a neon outfit.
Section 14 of the Virginia Model Jury Instructions discusses the duties of pedestrians. Other pedestrian conduct that may also be considered contributory negligence includes:
- Crossing outside the crosswalk
- Crossing where there is no crosswalk
- Crossing against the signal
- Walking along roadways where there is no pedestrian access, such as bridges
- Failing to keep a proper lookout or running in front of oncoming traffic
Contributory negligence laws in Virginia
Unfortunately, contributory negligence is alive and well in Virginia. It is a “common law” rule, meaning that it was established through our state’s court decisions, in particular the Supreme Court of Virginia. This rule is not found in the Code of Virginia as a state statute, but common law is equally binding in the legal system.
For the time being, the legislature has not taken any action to abolish contributory negligence, meaning that we will have to continue to deal with this defense in pursuing personal injury claims. However, as Mallory’s lawyers proved in Alabama, this defense can be overcome.
If you have been injured and would like to consult with a Virginia attorney knowledgeable of this state’s contributory negligence laws, please reach out to Allen & Allen for a free consultation at 866-388-1307.