Contributory negligence bars many claims brought in Virginia by injured cyclists, runners, swimmers and other athletes according to the personal injury lawyer Doug Landau. However, this outdated and harsh defense does not apply as strictly to children injured in bike crashes, recreational activities and sports accidents.
The trial team at Abrams Landau, Ltd. has successfully represented children in bike crash, sports injury and dog attack cases throughout Virginia despite this defense. According to attorney Landau, children present a special case when applying Virginia’s contributory negligence rule because of the existence of certain conclusive and rebuttable presumptions. The age of the child bike crash victim, to a certain extent, dictates how Virginia law treats these injured young athletes.
Triathlon Trial Lawyer Doug Landau notes that a child under the age of 7 is conclusively presumed to be incapable of contributory negligence when riding a bicycle or walking in the pedestrian crosswalk on the way to school.
A child between the ages of 7 and 14 presents a different standard, according to experienced Virginia personal injury trial lawyer Doug Landau. An injured cyclist or athlete between the ages of 7 and 14 is presumed to be incapable of exercising care and caution for his or her own safety, but that presumption may be rebutted with sufficient proof. In order to rebut the presumption that a child between 7 and 14 is incapable of contributory negligence, a defendant must show that in light of the child’s age, intelligence, and experience, the child was capable of understanding and appreciating “the nature of the danger and the peril associated with his conduct.” The Abrams Landau trial attorney adds that it must be shown that the injured child cyclist was aware of the danger of the specific conduct that resulted in the accident.
After a child reaches the age of 14, he or she is presumed to have sufficient capacity to be sensible of danger and to have the power to avoid it according to Landau. However, even though there is no presumption that a child over the age of 14 is incapable of contributory negligence, that does not mean that the child’s conduct is measured by adult standards. To the contrary, the trial court looks to what children of the same age, experience, discretion and knowledge would exercise under the same or similar circumstances.
Interestingly, the Virginia Code provides that a child’s failure to wear a helmet is not contributory negligence. Although any county, city, or town may require children under the age of fourteen to wear helmets whenever they are riding a bicycle, Landau observes that violation of these ordinances do not constitute contributory negligence in the Commonwealth of Virginia.
If you or someone you know has been injured due to no fault of your own, please give us a call (703-796-9555) or email us at Abrams Landau, Ltd.