What Is Contributory Negligence?
In most states, fault is apportioned by percentages. If you were found to be 20% at fault for the car crash, and the other driver is found to be 80% at fault, then you can still recover, but your total recovery will be reduced by 20%. Other states will follow a modified version of this rule, allowing for a full recovery if you were not more than 50% responsible for the car crash.
Under Virginia’s contributory negligence rule, if you are determined to have been negligent in a way that contributed to the car crash at all, you cannot recover for your injuries. The contributory negligence rule acts as a total bar to recovery and is yet another play in the insurance company’s playbook to try and diminish your recovery.
The contributory negligence rule is a fundamental component of Virginia personal injury law that differentiates it from most other states and is a major reason why retaining an attorney early who can thoroughly investigate the crash is incredibly important.
How Fault is Established for Virginia Car Crashes
Fault in a Virginia car crash is determined through consideration of key pieces of evidence. It is important to note that some of these pieces of evidence may disappear if not preserved shortly after the crash. Some key pieces of evidence to consider are:
- The Police Crash Report: The responding officer’s report from the scene, statements, including written statements, from both drivers, and often the officer’s opinion based on their investigation are all included in the police crash report. Most people are unaware that the responding officer’s opinion is not binding when it comes to determining fault in your case. However, a poor opinion from the investigating officer can make setting the record straight more difficult as time passes, witness memories become less sharp, and both sides get more entrenched in their positions.
- Physical Evidence: Tire skid marks, traffic patterns, the point of impact between the vehicles, vehicle damages patterns, as well as weather and road conditions all contribute to determining who was at fault.
- Witness Statements: Independent witnesses are people who saw the crash from a neutral vantage point. These witnesses can often be critical in determining fault. Their accounts should be gathered as soon as possible after the collision, before their memory begins to fade and, in some cases, the witnesses may become difficult or impossible to locate for further questioning.
- Traffic and Dashcam Footage: Video footage is becoming increasingly available to help determine fault for car crashes in Virginia. Traffic cameras, business surveillance cameras, and dashcam footage can be used to confirm or contradict the accounts of the drivers. This evidence must be located and preserved quickly, as often footage is erased or written over within 24-78 hours after the crash.
- Electronic Data and the “Black Box”: Modern vehicles, tractor trailers, and commercial vehicles are often equipped with a “black box” that records data from the Engine Control Module (or “ECM” for short). The recording begins after a triggering event such as sudden acceleration or deceleration. The black box will then create a record of the vehicle’s speed, braking, and throttle usage in the moments directly before impact. This data is vital for forensic crash reconstruction efforts. Just like video footage, this data must be preserved quickly as it will be written over quickly once the vehicle is back on the road.
- Your Statements:What you say to the other driver, to the police officer, to the insurance company, and on social media can become a key piece of evidence when determining fault.
How Insurance Companies Use Contributory Negligence
Insurance companies in Virginia understand how powerful a contributory negligence argument can be when defending a personal injury case and are trained to argue it whenever possible. Common arguments from the insurance company include:
- The injured person was speeding, which in turn contributed to the crash
- The injured person failed to see the at fault driver’s car coming and take reasonable evasive action
- The injured person had an opportunity to avoid the crash but failed to do so
What Fault Determination and Contributory Negligence Means for You
The fault determination and contributory negligence legal framework are two of the many reasons why the early stages of case development, with the help of an attorney, are critically important. Evidence that supports a clear and unambiguous fault determination must be gathered and preserved quickly. The injured person’s account must be consistent throughout each of their communications with the police officer, the at-fault driver, their insurance company, and even with their doctor (as medical professionals routinely include details from the crash in their medical records).
At the Voelkel Law Firm, we begin the fault analysis with our clients starting on the first call. We take the time required to think through the liability picture carefully, and if there is potential for a contributory negligence argument from the insurance company, we act fast to preserve the necessary evidence to prove your case.
If you have been injured in a Virginia car crash, don’t just assume that your recovery will be straightforward. The insurance company is working hard to identify potential contributory negligence arguments to devalue or defeat your case. It is important that you get legal counsel involved early who can take the appropriate steps to preserve critical evidence before it is too late.