When it comes to resolving personal injury cases in Virginia, the court must first determine who was responsible for the accident. Sounds simple, doesn’t it? Not so fast. Virginia is one of only five jurisdictions in the United States that still use contributory negligence versus comparative negligence when determining whether or not a plaintiff can recover damages following an accident. The others are Alabama, Maryland, North Carolina, and Washington D.C. The rest of the country uses various forms of comparative negligence.
The dated doctrine of contributory negligence makes it far more challenging for accident victims in Virginia to recover damages. According to the doctrine, if the plaintiff is found to have had any fault in the accident, they are ineligible to receive compensation from the other party involved. Comparative negligence, on the other hand, allows a plaintiff to recover compensation for the portion of the accident deemed to have been caused by the other party. For instance, if the court determines the plaintiff was 20% at fault and the defendant was 80% at fault, the plaintiff can still recover 80% of the damages incurred.
As the original thirteen colonies eventually became thirteen states, they still kept an eye on English law, using some cases for legal reference. One example is the Butterfield v. Forrester case of 1809, which is considered the first example of using contributory negligence as a defense. Butterfield was riding home on his horse at a high rate of speed when he ran into a pole left near the road by Forrester, who was doing some construction on his home. Based on several witnesses, Butterfield was riding at a reckless speed near dusk, and could have easily avoided the pole had he been exercising some caution and traveling at a reasonable rate. The court, in turn, found him partially negligent for the accident and therefore unable to recover damages from Forrester.
Although the Virginia state legislature has not replaced contributory negligence with comparative negligence, there are some signs of progress. The 2017 Virginia Supreme Court, in Coutlakis v. CSX Transportation, Inc., allowed the plaintiff to recover damages, even though they were found to be partially responsible for the accident. James Coutlakis was walking along some train tracks, listening to music through his earbuds, when he was struck and killed by a CSX train. His wife filed a suit stating that the train engineer saw her husband several hundred yards before he was struck and made no attempt to slow the train, even though her husband was clearly oblivious to its presence. The court referenced the last clear chance doctrine, which states if the defendant had the last chance to avoid the situation which caused the accident, the plaintiff can still recover some damages.
Because Virginia uses contributory negligence, finding the right personal injury attorney to help win your personal injury case is even more important. Your Clinton personal injury attorney has to prove you had no fault in causing the injury you sustained, because the accident was solely caused by the negligence of the other party. That is no easy task and success is never guaranteed, but Malloy Law Offices can give you a fighting chance. Our experienced attorneys have won numerous cases where negligent defendants used contributory negligence as their main defense. Contact us today at (202) 845-7726 or reach us via our website https://www.malloy-law.com/.