According to Herndon personal injury and premises liability attorney Doug Landau, at the heart of any liability or injury case is the question:  whose fault was it? 

In the context of an injury lawsuit, consider the following situation:

• Person #1: a bicyclist who is injured after being struck on his bike while riding through a crosswalk
• Person #2: the driver of a truck
• Situation:  The cyclist, a frequent bicycle commuter traveling by bike on his regular route, proceeds into a crosswalk – with the WALK sign – on a busy weekday morning during rush hour.  The driver of the van makes a right turn once his traffic signal turns a solid green (as versus a green arrow).  He enters the crosswalk without seeing the bike and strikes the cyclist.

Suppose the cyclist was badly injured in this accident, resulting in costly medical treatment, lost time from work, and ongoing medical issues arising from the initial injury.  Would he have a case if he sued the driver?  Would he be able to recover damages?  The extent of his injuries do not even matter yet.  The success of the case depends first and foremost on whether or not the van driver is found to be at fault for the accident.

In the state of Virginia, there is something called contributory negligence that makes proving fault extremely difficult.

Contributory negligence is a legal doctrine that says that if the negligence of the plaintiff (in our example the cyclist) in any way, no matter how slight, contributed to his or her injuries, then no matter the degree of the defendant’s negligence (in our example the truck driver), the plaintiff is not entitled to recover damages.

So, the question in our example is:  Did the cyclist’s conduct – something he did, did not do, or should have done – in any way contribute to the accident?  Could he have done something to avoid being hit by the truck?  Did something he did actually cause him to be struck?

Both the driver of the truck and the cyclist have a duty to operate their vehicle in a safe manner. But, the doctrine of assumption of the risk also comes into play.  Does a cyclist, commuting in busy rush hour traffic, assume some risk just by getting on his bike?

These are all interesting questions.  And, ones that could be applied in many other situations – a slip and fall injury, a spectator injury at a sports venue, etc.

Lawyer Landau notes that trying cases like these in Virginia is particularly difficult precisely because of the contributory negligence and assumption of risk doctrines.  In other states without these provisions in the law, liability cases are much easier to win.

If you or someone you know has been injured due to no fault of your own, and there are questions as to what laws apply, email or call Abrams Landau, Ltd. at once (703-796-9555).