Most people understand that if they have been injured in an automobile collision caused by someone else, they are entitled to recover for their damages against the negligent driver’s insurance company. In some cases, the circumstances of the accident and fault of the other driver are clear. Perhaps the defendant rear-ended the plaintiff who was stopped at a red light, or the defendant admitted to disregarding a stop sign because she was looking at her phone.
But what about those cases in which both drivers share some of the blame? For example, perhaps the defendant pulled out in front of the plaintiff at an intersection, but the plaintiff was unable to avoid the impact because they were speeding excessively. Due to Virginia’s law of contributory negligence, these scenarios present challenges to the plaintiff seeking to recover damages for her injuries.
Conditions for Contributory Negligence
If the plaintiff failed to act reasonably for their own safety at the time of the collision, they are guilty of contributory negligence. If the plaintiff’s contributory negligence contributed to cause the accident, then they are prohibited from recovering any damages at all. This is true even if the defendant was also negligent, and even if the degree of the defendant’s negligence was much greater than the degree of the plaintiff’s negligence. In fact, the jury is instructed in such cases that it is not to compare the negligence of the parties, but instead any negligence of the plaintiff which was a proximate cause of the accident will bar the plaintiff from recovering.
Assumption of Risk
A similar law, called “assumption of the risk,” provides that even if the defendant was negligent in causing the accident, the plaintiff cannot recover if they understood the risk that was posed and voluntarily exposed themselves to it. For example, assume that the plaintiff was the passenger in a vehicle being driven by the defendant who was driving while intoxicated and negligently caused the collision. Under the doctrine of “assumption of the risk,” the plaintiff may be barred from recovering their damages if they fully understood the degree of the defendant’s intoxication and chose to get in the vehicle anyway.
The law of contributory negligence, in which the plaintiff’s claim is barred by their own negligence regardless of the relative degrees of fault, was the rule at common law and was historically imposed in all jurisdictions in the United States. Over time, however, many states have moved to the law of “comparative negligence,” meaning that even if the plaintiff is partially at fault, they can nevertheless recover some of their damages in inverse proportion to her degree of fault. Virginia is one of only a handful of states which still adheres to the law of contributory negligence, leading to harsh results for many injured drivers.
Sometimes insurance companies use the doctrine of contributory negligence as an excuse to deny claims where the plaintiff in fact may have a strong case for obtaining a recovery for their injuries and damages. At Allen & Allen, we have experience evaluating cases in which contributory negligence is asserted by the defense, and advocating for our clients to obtain fair compensation for their injuries.