Steps to Defend Against Contributory Negligence in Virginia

In Virginia, a personal injury claim can be derailed by a strict rule regarding fault. Because the state applies a one-percent contributory negligence standard, even a minor amount of blame attributed to you can prevent you from recovering any compensation, regardless of how much fault the other party carries. This makes the evidence and arguments presented after an accident incredibly important for anyone seeking damages. If you need to learn more about contributory negligence in Virginia, visit the firm's website.

Taking Action After an Accident

1. Secure all documentation related to the incident. Gather items like visual recordings, mechanical logs, accounts from bystanders, and clinical documentation of your injuries to ensure you have a robust foundation for your claim. Insurance adjusters will often look for any reason to argue that you contributed to the crash, so having a clear record of the events is necessary to counter their claims.
2. Avoid making premature statements about fault. Be very cautious when speaking about the accident, especially regarding your own actions, speed, or attention level. Insurance adjusters may use your words to argue that you were distracted, failed to yield, or were otherwise negligent, which can form the basis of a defense against your claim.
3. Understand the burden of proof. The defense is responsible for showing that you failed to act reasonably for your own protection; they must affirmatively support their claim that you share responsibility before they can rely on this defense. They are required to bring forward actual proof backing their assertion before a jury is permitted to weigh in.
4. Challenge the open and obvious danger doctrine. If you are accused of failing to notice a hazard in a premises liability case, look for conditions that might have excused your lack of awareness. If you were distracted by a separate event or if something outside your control prevented you from seeing the danger, you may be able to defeat the argument that the hazard was open and obvious.
5. Check for concurrent negligence. For a contributory negligence defense to be valid, your alleged negligence often needs to be contemporaneous with the defendant’s actions. In matters such as medical malpractice, there must be a clear link between the defendant's actions and your own behavior for the defense to apply.
6. Identify willful and wanton negligence. Should the defendant's actions reach this elevated threshold of severity, they are generally blocked from using your own minor oversights as a way to avoid responsibility for the harm caused. If the behavior of the party you are suing hits that mark, they typically lose the ability to rely on your standard carelessness as a shield against liability. This does not help you if your own conduct was also willful and wanton; in that case, you can still be barred from recovering.
7. Assess if the last clear chance doctrine applies. Even if you were negligent, it is possible to obtain compensation, provided the other party held the ultimate chance to prevent the injury after you had entered a situation of peril. This doctrine creates a limited exception to the standard rule and depends on what the defendant knew or should have known about your situation.
8. Prepare for a jury determination. You should expect that a jury will be the group responsible for resolving disputes about your level of fault, as judges rarely remove this decision from them except in very unusual circumstances. Do not assume that an allegation of fault will lead to a dismissal of your case, as you have the opportunity to present your side of the story in court.

The legal landscape in Virginia is unforgiving, and understanding how these doctrines interact with your specific situation is vital. For the full detail, including the exceptions, read the original article from our Roanoke personal injury lawyer.

About the author

John P. Fishwick Jr. was United States Attorney for the Western District of Virginia from 2015 to 2017, and is the founder of Fishwick & Associates PLC in Roanoke. He has chaired the United States Magistrate Selection Committees for the Western District of Virginia in 1997, 2003, 2011 and 2019. He holds a J.D. from Washington and Lee University School of Law and a B.A. from Harvard University.

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Also on this blog: Understanding Borrowed Car Accidents in Virginia.

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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.