The personal injury recipe: part 1

At the outset of each lawsuit, I tell my clients that, in the broadest sense, every Virginia personal injury claim consists of three components: liability, damages and insurance coverage. These are the ingredients necessary for success in the personal injury process. As my initial meeting unfolds, I go into more detail about the individual considerations that are contained within each of these three broad categories. If the facts and circumstances are deficient in any one of the three, there may be a major obstacle in the path to obtaining full and fair financial recovery. This article is the first in a three-part series exploring each of these components.


Under Virginia law, negligence is “a breach of a legal duty owed by one person to another.”[1] In common dialect, this is often described as a failure to use ordinary care. As applied in the context of motor vehicle collisions, the most common examples of failures to use ordinary care include speeding, driving while intoxicated, or texting while operating a motor vehicle. Every driver owes a duty to other motorists sharing the road and each of these actions reflects a clear breach of that duty.

In most cases, the ‘breach of a legal duty’ is memorialized almost immediately by the law enforcement officer who responds to the scene of the collision. It comes in the form of a traffic citation or criminal charge. In the aftermath of a motor vehicle collision, the vast majority of my clients assume that liability is clear simply because the other driver got a ticket.

While the issuance of a citation is certainly evidence that the other driver was negligent, the first question that must be answered is whether that evidence is admissible in a court of law. Pursuant to Virginia law, evidence of a plea of guilty or nolo contendere in a criminal prosecution or traffic case is admissible in any civil proceeding arising out of the same occurrence.[2]  Similarly, when an accused tenders payment to avoid a hearing, such payment shall be deemed a waiver of a court hearing and entry of a guilty plea.[3] If the defendant pleads not guilty or otherwise contests the charge, evidence that the responding officer issued a ticket is inadmissible in any subsequent civil claim for damages arising out of the collision. The main takeaway here is that the issuance of a traffic citation doesn’t necessarily prove that the defendant was negligent.

Adding further complication, the defendant’s breach of a legal duty (or lack of ordinary care) is only half of the liability analysis. Virginia follows the precept that “any negligence of a plaintiff which is a proximate cause of the accident will bar recovery.”[4] This is commonly called contributory negligence. If it is determined that the plaintiff’s actions contributed in some way to the resulting collision, the plaintiff’s claim is barred. The most common examples of contributory negligence involve speeding plaintiffs struck by motorists who fail to yield the right of way, or inattentive plaintiffs who fail to see speeding defendants before they enter an intersection. In each of these cases it can be argued that despite the defendant’s clear negligence, the plaintiff is not entitled to recover because his or her own failure to exercise ordinary care was a proximate cause of the ensuing accident.

Insurance adjusters who speak with people in the aftermath of an incident may immediately recognize that their insured breached a duty of care (i.e. was negligent), however, they hope to obtain a recorded admission from the plaintiff that the plaintiff’s actions also contributed to the collision. With that in mind, I advise everyone who is injured through no fault of their own to avoid providing recorded statements to the other driver’s insurance company before speaking with an attorney.

It is impractical to identify and discuss the countless issues that go into a liability determination in a Virginia personal injury case. Complication notwithstanding, it is important to acknowledge that every personal injury case is unique. Making the assumption that negligence is clear simply because the other driver got a ticket or providing a detailed description of the event to an insurance investigator before consulting with an attorney can have disastrous consequences for a personal injury plaintiff.

About the Author: Chris Toepp is a Fredericksburg, VA personal injury lawyer dedicated to helping people who have been injured by the negligence of others. He is experienced in handling personal injury cases involving catastrophic injury, wrongful death, traumatic brain injury, as well as premises liability cases and claims involving punitive damages. Chris works in the Fredericksburg, Virginia office of Allen & Allen and serves clients across Northern and Central Virginia.

[1] C.D. Kenny Co. v. Dennis, 167 Va. 417, 420 (1937).

[2] Va. Code Ann. § 8.01-418.

[3] Va. Code Ann. § 19.2-254.1.

[4] See gen. Panther Coal Co. v. Looney, 185 Va. 758 (1946).