Virginia’s “Total” Contributory Negligence Rule

Virginia’s “Total”…

Countless legal scholars have said their peace on this subject since it was established in the Virginia common law by a case called Baskett v. Banks, 45 S.E.2d 173 (Va. 1947). Virginia is one of a bare handful of states that enforce this rule, which to residents of other states can seem rather barbaric in its implementation. The rule plainly stated is that no one can recover from a defendant for injuries which they themselves negligently contributed to causing. To put it in the words of the original holding of Baskett:

“No person is entitled to recover from another for damages which have been occasioned by his own act or his own neglect.”

It seems reasonable on its surface but then seems to fall apart rather quickly when contrasted with what the majority of the states implement, called “comparative negligence.” Comparative negligence is the doctrine that if a person has been injured by the actions of another, yet they contributed to the accident as well, their fault should be apportioned between them as a percentage, and whatever monetary award returned by a judge or jury is reduced accordingly to that apportionment. The draconian feel of pure contributory negligence comes from the fact that if a plaintiff is held to be even 1% negligent in their own injury, they are completely barred from recovery.

The rule gets back some form of sense when you look behind the curtain at how these cases are routinely conducted. It is an extraordinarily rare occasion that a defendant is paying any of these damages out of pocket. Insurance companies are generally on the hook for paying, or sometimes companies themselves, but hardly, if ever, an individual person. Attorneys don’t get involved in cases where there is little to no expectation of financial return on their work and private persons generally do not have the funds to justify a million-dollar-plus jury award, and since there is no point in trying to bleed a stone, cases like that are usually not tried. Virginia simply will not allow a plaintiff who was negligent and contributed to their injury to recover against another, they must rely on their own insurance.

And that’s the whole story.

Obviously, that’s not the whole story.

Virginia is in the dramatic minority of states in enforcing contributory negligence and there are small carveouts where comparative negligence takes over in the Commonwealth. One such carveout concerns common carriers, which are individuals or businesses whose occupation is to transport people for money. Broadly speaking, internet-based cab services like Uber and Lyft, as well as bus transportation, and railways are common carriers. If a person is injured while using one of these services, the strict contributory negligence rules of Virginia fall away and leave the litigants to comparative fault. This is referred to as the Common Carrier Exception and it is accessible to injured persons who were injured by a common carrier who violated a safety regulation.

Another such carveout comes from VA Code Sec. 8.01-58, which provides that employees of such common carriers who are injured or killed, even if they have contributed to the accident, will not be barred from pursuing their claim. In such cases, the law embraces a comparative scheme where fault is apportioned and recovery is reduced by such apportionment. The section further provides that if the common carrier has violated a safety regulation or statute in some way as to contribute to the injury or death, then contributory negligence will not be considered.

There are a few further carveouts, though smaller, which do not lead all the way to using a comparative fault doctrine in litigation. For instance, accidents involving drunk drivers operate such that even if the injured person is partially at fault, this will not prevent them from pursuing a claim against the drunk driver. This is an example of the “willful and wanton” exception, which provides that if the defendant’s conduct rose to the level of willful and wanton, contributory negligence will not bar the plaintiff’s claim. There is also the “last clear chance” doctrine, which contemplates what happens when an injured person has been negligent, but the defendant had the last clear chance to avoid the accident and failed to do so. Most innocuously, there are carveouts that don’t rise to the level of contributory negligence, even if they seem somewhat negligent, such as not wearing a seatbelt might increase a person’s injuries, but it can generally not be said to have “contributed” to the occurrence of an accident.

Contributory negligence can feel draconian and certainly shuts down a large number of injury claims in the Commonwealth, but being aware of the ins and outs can give a litigant or litigator an edge in pursuing a claim. And, with the weight of the states adopting comparative fault rules, we eventually may see change come to the jurisprudence of the Commonwealth.

If you have questions about this article, or about contributory negligence in general, please contact Christopher Adams (cadams@setlifflaw.com) at (804) 377-1273 or Steve Setliff (ssetliff@setlifflaw.com) at (804) 377-1261.