Old Tradition. Virginia is one of the last holdout states – along with Alabama, North Carolina, Maryland, and the District of Columbia – to adhere to the doctrine of contributory negligence.  Contributory negligence is the failure to act as a reasonable person would have acted for his own safety under the circumstances,[1] and it is a complete defense to a plaintiff’s claim of negligence.[2]

Picture this: You’re driving down a flat, straight, two-lane highway on a clear evening when your phone buzzes several times with text messages.  Although you don’t usually bother with your phone when driving, because you know it is dangerous and that texting and driving is now a primary offense in Virginia,[3] this time you grab your phone and look down to briefly read the text.  As you look down, your wheels drift onto the center line.  At the same time, an oncoming driver who is actively texting on her phone, has had a couple of drinks, and is not paying a lick of attention to the road (says his injured passenger), drifts about halfway into your lane and strikes your vehicle, causing you bodily injury.

Still in shock from the accident, you tell the investigating police officer who arrives at the scene that you just glanced down at your phone for “a few seconds” to read a text and the next thing you know, you were in an accident – you never saw the other driver coming.  A witness driving behind you tells the officer that your car started drifting toward the middle of the road moments before the other driver came partially into your lane of travel.  The officer dutifully puts this information into his police crash report, and cites you for texting while driving and the other driver for reckless driving.[4]

No Recovery.  In a car accident like this, can you recover damages in a personal injury action against the driver who drifted into your lane?  In Virginia, the answer is still “probably not.”

The common line most Virginia attorneys use when describing contributory negligence is “If you are even 1% negligent, you cannot recover.”[5]  While this statement is generally accurate, when a defendant relies on the defense of contributory negligence, the burden rests on the defendant to show that such negligence was a proximate, direct, efficient, and contributing cause of the injuries, unless such negligence is disclosed by the plaintiff’s own evidence or may be fairly inferred from all the circumstances.[6]  In a court of law, the issue of whether or not the plaintiff is contributorily negligent is typically a factual question for the jury to decide.[7]

However, most personal injury cases do not begin in court; instead they begin with correspondence between the plaintiff’s attorney and an insurance company or risk management personnel.  In our example above, chances are very good that an insurance adjuster would look at the police crash report, assume it is accurate, and issue a letter denying liability due to your own statement that you were looking at a text and the witness’ statement that you drifted toward the middle of the road.  Having been denied by the insurance company, it would likely be difficult to prevail in court unless you had evidence that the other driver’s conduct was intentional or “willful and wanton.”[8]

As harsh as the rule of contributory negligence may seem, there are certain cases one might imagine as applicable that by law do not apply.  For example, the Virginia Code provides that a personal injury plaintiff’s failure to wear a seatbelt is not negligence, nor is it even admissible or subject to comment by counsel in an action for recovery of damages.[9]

While the Old Dominion generally clings to tradition, the rest of the country has taken a somewhat more progressive view and adopted what is known as comparative negligence.  The variations of comparative negligence are beyond the scope of this writing, however, the principle behind its use is that rather than completely barring a plaintiff who bears some fault in causing his own injuries, such plaintiff’s recovery of damages will be reduced in proportion to that plaintiff’s relative degree of fault.[10]  Virginia has adopted comparative negligence standards in limited cases, such as certain accidents that occur at railroad crossings.[11]

For most people, the idea of comparative negligence probably makes more sense from a fairness standpoint.  In our example above, you are arguably far less at fault than the other driver who crossed more significantly into your lane.  And since the other driver’s behavior was worse, shouldn’t you be able to recover some portion of your damages?  The current argument against switching from contributory negligence to comparative negligence generally revolves around the potential for increased insurance premiums.[12]  If insurance companies can no longer rely on a personal injury plaintiff’s contributory negligence as a complete defense and thereby deny a claim for damages in its entirety, then it follows that they will have to pay something.[13]  And of course, insurance companies hate to pay money but they love to collect it, so it equally follows that they must raise insurance premiums to keep their bottom line intact.

Although Virginia has carved out some limited exceptions to the traditional rule of contributory negligence, there is little doubt that the old law school refrain of “Always walk in the crosswalk when crossing the street” is generally prudent advice,[14] and applies not only literally for Virginia personal injury plaintiffs, but more broadly as a metaphor for governing your personal behavior as you navigate the increasingly crowded, deep, and dangerous waters of life.

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[1] Virginia Model Jury Instruction 6.000.

[2] See, e.g. Litchford v. Hancock, 232 Va. 496, 352 S.E.2d 335 (1987).

[3] See Virginia Code § 46.2-1078.1, which reads in pertinent part: “It is unlawful for any person to operate a moving motor vehicle on the highways in the Commonwealth while using a handheld personal communication device to . . . manually enter multiple letters or text in the device as a means of communicating with another person . . . [or] read any email or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored within the device nor to any caller identification information.  Being a “primary offense” means an officer can lawfully stop you if they reasonably believe you are texting while driving.  Prior to July 1, 2013, an officer could only charge a violation of this code section if they had cause to stop or arrest the driver for some other violation of law.

[4] Pursuant to Va. Code § 46.2-852 – known as “reckless general,” it embodies any driving behavior that imparts a disregard by the driver of a motor vehicle for the consequences of his act and an indifference to the safety of life, limb, or property.  See Thompson v. Com., 27 Va. App. 720, 501 S.E.2d 438 (Va. App. 1998).

[5] To be clear, Virginia does not follow any rules of percentages in defining contributory negligence.  The common parlance of “1% at fault” is just a way of generalizing the law for the layperson – i.e. if you are at fault, even if it’s slight, but it contributed to the accident, you cannot recover.  The standard is delineated further below in Charlottesville Music Center, Inc.

[6] Charlottesville Music Center, Inc. v. McCray, 215 Va 31, 37, 205 S.E.2d 674, 679 (1974).

[7] Id.

[8] A defendant who is willfully and wantonly negligent cannot rely upon a plaintiff’s contributory negligence as a defense, subject to the exception that when a plaintiff is also guilty of willful and wanton negligence, such conduct bars recovery.  Wolfe v. Baube, 241 Va. 462, 403 S.E.2d 338 (1991).  Thus, imagine two intoxicated hotshots racing their sporty, souped-up cars down the open road at reckless speeds when one loses control, causing a crash that badly injures him and kills the other driver.  Neither party would be likely to recover damages in such a case.

[9] Va. Code § 46.2-1094.

[10] Swisher, Draim, Hudgins, Virginia Practice: Tort and Personal Injury Law, 2008-2009 ed. © 2008 Thomson Reuters/West.

[11] See Va. Code 56-416.

[12] See, e.g., Steven Platt, A Primer on Comparative Negligence vs. Contributory Negligence, June 6, 2007, https://www.apursuitofjustice.com/a-primer-on-comparative-negligence-vs-contributory-negligence/ (last visited July 27, 2017).

[13] Id.

[14] But see, e.g., Estate of Moses v. Sw. Va. Transit Manag., 273 VA/ 672, 643 S.E.2d 156 (2007) (holding that plaintiff’s failure to cross the street in the crosswalk creates a classic jury issue of contributory negligence, particularly given that even if plaintiff was in violation of law (Va. Code § 46.2-923) by crossing outside the crosswalk, there was still a question of whether such conduct was a proximate or concurring cause that contributed directly to the accident).  The jury, as it happens, returned a verdict for Moses, who was struck by a bus while crossing the street outside the crosswalk.