bicyclist hit by car

What Is Contributory Negligence and Why Does It Make It Difficult for Me to Win My Injury Case?

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Did you know that Virginia is only one out of four states in the country to still have contributory negligence as a valid defense to any recovery for an injured party in a personal injury lawsuit?

The doctrine of contributory negligence stands for the proposition that if an injured person’s injuries were caused in any part by his or her own negligence, he or she is not entitled to collect any damages (money) whatsoever from the party that was the major cause of the crash. Maryland, Virginia, North Carolina and Alabama are the only states still using this outdated legal doctrine. Washington, D.C. also adheres to the doctrine of contributory negligence.

In other words, if the jury finds that the defendant is 99% at fault in an accident and the plaintiff is only 1% at fault, the plaintiff cannot recover any of his/her damages. For instance, any violation of a traffic law can be evidence of a bicyclist’s negligence, despite the clearly negligent defendant driver who hit the bicyclist and severely injured them. However, in order to bar an injured biker’s recovery, the disabled cyclist’s negligence must be a cause of the accident.

Example: A car crashes head on into a group of cyclists going the posted speed limit, single file. If a bike rider is hit and injured in a car crash and they did not have side reflectors on their bicycle in violation of the law, the insurance company defense lawyers may make a lot of noise about this fact. The defense would try to defeat the claim by alleging “contributory negligence.” However, if it was a daytime bike crash, then the failure to have side reflectors would not be viewed by a judge as a cause of the crash.

Contributory negligence vs. comparative negligence

Contributory negligence has been replaced by the doctrine of comparative negligence in the rest of the country, where the compensation received by an injured plaintiff may be reduced by the degree to which their own negligence contributed to an accident and not eliminated altogether. For example, if a cyclist is adjudged to be 10% at fault for causing a crash because they were going several miles over the speed limit, the drunk driver who was going 30 miles an hour over the limit without his or her lights on at night would be responsible for 90% of the harms and losses. So if the injured bicyclist has $100,000 in losses but is 10% at fault, they can still recover $90,000.

Last month, Senate Bill No. 659 was introduced to amend the Code of Virginia by adding section number 8.01-63.1, relating to contributory negligence; motor vehicle accident involving a pedestrian.

Section 8.01-63.1:

8.01-63.1. Motor vehicle accident involving a pedestrian, bicyclist, etc.

          A. The negligence of a pedestrian, bicyclist, or other person lawfully using a device other than a motor vehicle, as             defined in § 46.2-100, on a public highway who is involved in a collision with a motor vehicle shall not bar the                 plaintiff’s recovery in any civil action unless the plaintiff’s negligence is (i) a proximate cause of the plaintiff’s                   injury and (ii) greater than the aggregated total amount of negligence of all the defendants that proximately                     caused the plaintiff’s injury.

          B. Nothing in this section shall be construed to change or affect the doctrine of joint and several liability or the                last clear chance doctrine.

The Washington Area Bicyclist Association (WABA) even sent out an urgent petition to encourage the cycling community to take action and ask Senators to support the bill.

However, unfortunately, it was defeated on January 29, 2020 14-1 by Virginia Senators.

At the Abrams Landau law firm, we are well-versed on the doctrine of contributory negligence and how it impacts our injured clients in VA, MD, DC and other states. Essentially, contributory negligence makes injury cases extremely difficult to win and stacks the decks in favor of insurance companies. It makes them an “all or nothing” proposition in those states that cling to this outdated doctrine.

Therefore, when we take a case on behalf of an injured cyclist, pedestrian, runner or motorist, we spend a great deal of time, effort, and money researching and preparing. We interview police and other witnesses, survey the scene of the accident, study medical records and test results, and collect any other information that may be helpful. For many cases, we sometimes conduct mock trials before the actual trial to ensure we’ve done all that we can to best prepare for our clients.

There are different, special rules about contributory negligence regarding children, which you can read more about here on a separate blog post of ours.

If you or someone you know was injured due to no fault of your own and you have questions as to what laws apply, please give us a call (703-796-9555) or email us here on our Abrams Landau, Ltd. website.