Virginia’s Contributory Negligence Rule Could Cost You Your Entire Personal Injury Claim
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If you’ve been injured in an accident in Virginia, one legal rule can dramatically affect your ability to recover compensation: contributory negligence. Virginia is one of only four states (along with Washington, D.C.) that still follows this harsh rule.
Understanding how contributory negligence works, and the exceptions that may apply, is critical to protecting your rights after an accident.
How does contributory negligence work?
Virginia’s contributory negligence law means if you (the injured person) are partially at fault for causing an accident or your own injuries, you can’t recover any compensation in your personal injury case, even if the other party was negligent. It’s called “contributory” because your own actions may have contributed to your injuries. It generally applies to all types of personal injury cases: slip and falls, car accidents, dog bites, etc.
You may hear someone describe the rule to mean that if you’re just 1% at fault, you can’t recover any compensation. While that’s correct, the law also requires that the contributory negligence was an actual and proximate cause of the accident or injuries.
For example, imagine the sun sets at 6:30pm on a particular day. You’re driving at about 6:15pm, so it’s starting to get a little dark outside, and you don’t have your headlights on. You drive through an intersection with a green light, but a driver in an oncoming lane takes a left turn, cutting in front of you and causing a crash. The other driver was likely negligent because you had the right-of-way through the intersection and they should have yielded, but they say they couldn’t see you very well because your headlights weren’t on.
Does that mean you were 1% negligent? Maybe, but let’s say that it is negligent for the purpose of this example. Was the failure to have your headlights on before sunset a cause of the crash? In other words, would the crash still have happened even if you had your headlights on? I think most people would say yes, and if that’s what a jury thought too, then you’d still be able to recover compensation for your injuries.
Most other states follow what’s known as “comparative negligence,” which means that an injured person’s recovery is reduced proportionately to their degree of fault. For instance, if the injured person was 20% at fault, then their recovery is reduced by 20%.
Why is contributory negligence important?
Because contributory negligence could mean you get $0 in your personal injury claim, it’s a strong defense that insurance companies will try to use whenever they can. They will search for evidence to support their defense, so they’ll look for things like whether the injured person:
was speeding;
was distracted;
failed to pay adequate attention; or
otherwise acted unreasonably in the situation.
This is one reason why a thorough investigation is so important. Surveillance footage, witness statements, vehicle data, photographs, and expert testimony can often help establish who was truly responsible for an accident. It’s also why you should be very careful before agreeing to give a recorded statement to an insurance company or posting things on social media.
Are there exceptions to contributory negligence?
Yes, even if an injured person was contributorily negligent, it may be countered with a few exceptions in Virginia.
The last clear chance doctrine
Known as the “last clear chance” doctrine, this is a counter to a claim of contributory negligence that asks whether the defendant—the person who was negligent in causing the accident—clearly had a last-second opportunity to avoid an accident but failed to do so.
For example, suppose a pedestrian negligently walks across the street. If a driver sees that pedestrian in time to stop or avoid a collision but fails to do so, the driver may still be held liable despite the pedestrian's earlier negligence, and the pedestrian may still be able to recover damages.
Sudden emergency doctrine
Another counter to contributory negligence in Virginia is called the “sudden emergency” doctrine. This rule says that if an injured person was confronted with a sudden emergency that gave them very little time to exercise their judgment, and they acted reasonably under the circumstances, then they may still be able to recover damages.
I have dealt with this in court before, and a judge found in my client’s favor. My client was driving on a two-lane country road when an oncoming driver suddenly turned left in front of my client. My client quickly acknowledged the situation and swerved his vehicle to the right to successfully avoid a collision with the oncoming car. However, my client ended up crashing into another vehicle that was stationary at a stop sign from a cross street—there was no fault on that driver at all.
At trial, the defense tried to argue that my client was negligent by swerving his vehicle and wouldn’t have been injured if he hadn’t done so. I countered to the judge that my client acted reasonably under the circumstances, and he never would have swerved if the other driver hadn’t failed to yield the right-of-way. There was no evidence that my client was speeding or distracted either. The judge agreed with us, awarding him damages for his injuries.
However, it’s important to note that this can also be a counter to a claim of negligence against another party. For example, if someone was injured by another driver who crashed into them because they swerved to avoid a deer crossing the road, the defendant may be able to avoid any liability if their reaction to the emergency was reasonable.
Willful and wanton conduct
Generally speaking, contributory negligence cannot be used as a defense when the defendant’s conduct was “willful and wanton.” This is behavior that demonstrates the defendant had a “conscious disregard” for the rights and safety of others. This is behavior that is extremely dangerous, and the defendant generally didn’t care about the dangers it might pose. Examples include drunk driving, street racing, or excessive speeding.
The reason I said “generally speaking” is because contributory negligence can be a defense if the injured person’s conduct was also willful and wanton. This may look like two drunk drivers who each were responsible for causing the crash.
Cases involving children
Virginia law recognizes that children may not be capable of exercising the same level of judgment as adults. Whether a child can be found contributorily negligent often depends on the child's age, intelligence, experience, and ability to appreciate risk. As a result, contributory negligence analyses in cases involving minors are often more complex than those involving adults.
How does contributory negligence affect settlement negotiations?
The possibility of contributory negligence frequently impacts settlement discussions. If the insurance company believes it has strong evidence that an injured person contributed to an accident, it may deny liability or make a very low settlement offer. However, it can add a complex dynamic to the negotiating power of each side that requires nuance.
In a hypothetical situation, let’s assume there’s about a 50/50 chance that a jury will find the injured person to have been contributorily negligent. If someone’s injuries were catastrophic and life-changing, that 50/50 risk can still result in a massive verdict against them if the jury found in the injured person’s favor, so the insurance company may be willing to offer a very strong settlement in that situation. But if the injuries were very minor, there’s a much weaker incentive for the insurance company to make stronger settlement offer.
In another hypothetical where there’s maybe a 25% chance that a jury will find someone to have been contributorily negligent, the insurance company may be willing to offer a fair settlement regardless of the severity of injuries because they face a low risk of winning in those circumstances.
Knowing how to evaluate the risk of contributory negligence and negotiate accordingly is a huge reason why it’s beneficial to have a Virginia personal injury attorney on your side.
Conclusion
Virginia’s contributory negligence rule is one of the strictest personal injury laws in the country. If an injured person is found even slightly at fault for an accident, they may be unable to recover a single dollar in their personal injury case.
However, contributory negligence is not always the end of the story. Important exceptions, including the last clear chance doctrine, sudden emergency doctrine, willful and wanton misconduct, and special rules involving children, may enable an injury victim to recover compensation in certain circumstances.
Because determining fault can be a complex question, anyone injured in Virginia should understand how contributory negligence works and seek legal guidance from a Virginia personal injury attorney before making statements or accepting an insurance company’s assessment of fault.
