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Virginia's harsh contributory negligence law

After many traffic accidents, it's relatively clear who was at fault. For example, if a sports car driver speeds through a stop sign and crashes into a sedan that was lawfully traveling through an intersection, the injured sedan driver has a strong case to show that the sports car driver caused the accident through negligence and should be held liable for the injured person's damages. However, determining causation after a car accident is not always so easy. For example, what if both drivers ran the stop sign? Can the sedan driver recover compensation in that case?

Virginia law has an answer to this question, and it is somewhat harsh: If the injured party negligently contributed to the cause of the accident, he or she cannot be compensated.

The concept here is known as contributory negligence. In the example above, the sports car driver owes a duty to other drivers on the road to not put them at unnecessary risk of harm. However, the sedan driver also owes a duty of care to him- or herself to avoid harm. By running a stop sign and getting into a car crash, the sedan driver acted negligently. This negligence contributed to the sedan driver's injuries.

Most states have laws providing some protections for the injured who contributed to their own injuries. For example, some states provide that courts must assess the blame for an accident in terms of percentages; if the injured contributed less than 50 percent of the cause, they may be compensated, but their recovery will be limited in proportion to their contribution to the accident. Virginia's traditional, "pure" contributory negligence law does not provide this kind of protection.

Virginia's law can lead to harsh results. For example, what if the sedan driver's contribution was not running a stop sign, but something much less risky, such as forgetting to turn on headlights after the sun started to go down? In some states, a court might look at this situation and find that the sedan driver was 25 percent to blame for the accident. These courts would find that the sedan driver could recover compensation, but the amount would be reduced by 25 percent. In Virginia, however, courts could find that the sedan driver is completely out of luck.

Because the law can be so tricky, it's very important that the injured have an experienced Virginia personal injury attorney on their side.

Source: Richmond Law Review, "Virginia Should Abolish the Archaic Tort Defense of Contributory Negligence and Adopt a Comparative Negligence Defense in its Place," Peter Nash Swisher, Oct. 27, 2011

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