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Contributory Negligence Bar

Fairfax Injury Lawyer Brien Roche Addresses Contributory Negligence Bar

Brien Roche

Contributory Negligence Bar-Substantial Fault

Contributory negligence is an affirmative defense. What that means is that the defense must be raised in a pleading. The exception to that is where the plaintiff’s own evidence gives rise to this defense. In that case the defense of contributory negligence need not be pled.

Fault Is Not Compared

Most states have adopted what is called comparative negligence. Under that concept the the fault of the parties is compared.  In those states as long as the plaintiff is not judged to be more than 50 percent at fault, then the plaintiff can prevail.  In such a state if the plaintiff’s fault is 30 percent then the total value of the case is reduced by the jury by 30 percent. This reduces the amount of money flowing to the plaintiff by 30%. This reflects the extent to which she caused the injury. Call, or contact us for a free consult.

The rule in Virginia is that negligence on the part of the plaintiff which contributed to the injury bars the plaintiff’s claim.

The defense will try to argue that any fault on the part of the plaintiff is a bar. That is not the law in Virginia. The law is that the defendant must present facts that rise to more than a scintilla of evidence of fault. As such the slightest degree of fault is not sufficient. Clinchfield Coal Corp. v. Osborne’s Adm’r., 114 Va. 13, 17 (1912).

One Percent Argument

Frequently what the defense will try to do in an injury case is to argue that 1% negligence on the part of the plaintiff bars the claim. That again is not the law. Another clever argument in that regard is to tear off the end of a piece of paper and to suggest that amount of negligence is sufficient to bar the plaintiff’s claim. That again is not the law. The law is that it must be more than a scintilla of evidence. Indeed the evidence must be substantial. Lerwill v. Regent Van and Storage, 217 Va. 490, 496 (1976); Yeary v Holbrook 171 Va. 266,285 (1936). Call, or contact us for a free consult.

Contributory Neglugence Bar-Lessened Capacity

Where the plaintiff is of some lessened mental capacity there may be a question of whether this same rule applies to that plaintiff. That is, does the reduced mental capacity somehow excuse fault on the part of the plaintiff. The rule is that unless the person is a child or is insane, the the plaintiff is held to the standard of reasonable care under the circumstances. Some lack of mental prowess does not excuse the conduct. Wright v. Tate, 208 Va. 291, 156 S.E.2d 562 (1967).

Concurrent Fault

Another concept that may apply in regards to contributory negligence is that the fault of the plaintiff must concur with the fault of the defendant. That is, if the fault of each occurs at different points in time, then they do not concur. Fault on the part of the plaintiff in that circumstance would not be a bar to the plaintiff’s claim.

Passengers

Although it may seem a bit far-fetched, there are circumstances where a passenger in a car can be guilty of contributory negligence. For instance if a guest gets into a vehicle with a driver who the guest should know is under the influence, that may be contributory negligence. In addition if the passenger sees upcoming danger which he knows the driver does not see and says nothing, that may be fault on the part of the passenger that bars the claim.

Cause

An important element of contributory negligence is causation. That is, the negligence must be a proximate cause of the injury. If the plaintiff is a passenger in a vehicle and has a high BAC level, can that be contributory negligence? Probably not because the alcohol did not contribute to the crash. The argument however may be made that if the plaintiff had not consumed alcohol then the plaintiff would not have gotten into that vehicle. There needs to be a foundation for that.

Contributory Negligence Bar-Willful and Wanton

Willful and wanton conduct may be a defense to contributory negligence. That is, where the defendant’s conduct rises to this level, then that may defeat any defense of fault on the part of the plaintiff. Willful and wanton conduct is one where the party intends the conduct but not the resulting harm. Although to constitute willful and wanton conduct, the party must be aware that the conduct probably would cause some injury to another. Alfonso v. Robinson, 257 Va. 540, 514 S.E.2d 615 (1999).

However gross negligence is not a bar to contributory negligence. Thomas V. Snow, 162 Va. 654 (1934) and Griffin v. Shively, 227 Va. 317 (1984)

Call, or contact us for a free consult. Also for more info on contributory negligence see the Wikipedia pages. Also see the post on this site dealing with negligence issues.

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Contact Us For A Free Consultation

Contributory Negligence Bar

Fairfax Injury Lawyer Brien Roche Addresses Contributory Negligence Bar

Brien Roche

Contributory Negligence Bar-Substantial Fault

Contributory negligence is an affirmative defense. What that means is that the defense must be raised in a pleading. The exception to that is where the plaintiff’s own evidence gives rise to this defense. In that case the defense of contributory negligence need not be pled.

Fault Is Not Compared

Most states have adopted what is called comparative negligence. Under that concept the the fault of the parties is compared.  In those states as long as the plaintiff is not judged to be more than 50 percent at fault, then the plaintiff can prevail.  In such a state if the plaintiff’s fault is 30 percent then the total value of the case is reduced by the jury by 30 percent. This reduces the amount of money flowing to the plaintiff by 30%. This reflects the extent to which she caused the injury. Call, or contact us for a free consult.

The rule in Virginia is that negligence on the part of the plaintiff which contributed to the injury bars the plaintiff’s claim.

The defense will try to argue that any fault on the part of the plaintiff is a bar. That is not the law in Virginia. The law is that the defendant must present facts that rise to more than a scintilla of evidence of fault. As such the slightest degree of fault is not sufficient. Clinchfield Coal Corp. v. Osborne’s Adm’r., 114 Va. 13, 17 (1912).

One Percent Argument

Frequently what the defense will try to do in an injury case is to argue that 1% negligence on the part of the plaintiff bars the claim. That again is not the law. Another clever argument in that regard is to tear off the end of a piece of paper and to suggest that amount of negligence is sufficient to bar the plaintiff’s claim. That again is not the law. The law is that it must be more than a scintilla of evidence. Indeed the evidence must be substantial. Lerwill v. Regent Van and Storage, 217 Va. 490, 496 (1976); Yeary v Holbrook 171 Va. 266,285 (1936). Call, or contact us for a free consult.

Contributory Neglugence Bar-Lessened Capacity

Where the plaintiff is of some lessened mental capacity there may be a question of whether this same rule applies to that plaintiff. That is, does the reduced mental capacity somehow excuse fault on the part of the plaintiff. The rule is that unless the person is a child or is insane, the the plaintiff is held to the standard of reasonable care under the circumstances. Some lack of mental prowess does not excuse the conduct. Wright v. Tate, 208 Va. 291, 156 S.E.2d 562 (1967).

Concurrent Fault

Another concept that may apply in regards to contributory negligence is that the fault of the plaintiff must concur with the fault of the defendant. That is, if the fault of each occurs at different points in time, then they do not concur. Fault on the part of the plaintiff in that circumstance would not be a bar to the plaintiff’s claim.

Passengers

Although it may seem a bit far-fetched, there are circumstances where a passenger in a car can be guilty of contributory negligence. For instance if a guest gets into a vehicle with a driver who the guest should know is under the influence, that may be contributory negligence. In addition if the passenger sees upcoming danger which he knows the driver does not see and says nothing, that may be fault on the part of the passenger that bars the claim.

Cause

An important element of contributory negligence is causation. That is, the negligence must be a proximate cause of the injury. If the plaintiff is a passenger in a vehicle and has a high BAC level, can that be contributory negligence? Probably not because the alcohol did not contribute to the crash. The argument however may be made that if the plaintiff had not consumed alcohol then the plaintiff would not have gotten into that vehicle. There needs to be a foundation for that.

Contributory Negligence Bar-Willful and Wanton

Willful and wanton conduct may be a defense to contributory negligence. That is, where the defendant’s conduct rises to this level, then that may defeat any defense of fault on the part of the plaintiff. Willful and wanton conduct is one where the party intends the conduct but not the resulting harm. Although to constitute willful and wanton conduct, the party must be aware that the conduct probably would cause some injury to another. Alfonso v. Robinson, 257 Va. 540, 514 S.E.2d 615 (1999).

However gross negligence is not a bar to contributory negligence. Thomas V. Snow, 162 Va. 654 (1934) and Griffin v. Shively, 227 Va. 317 (1984)

Call, or contact us for a free consult. Also for more info on contributory negligence see the Wikipedia pages. Also see the post on this site dealing with negligence issues.

Contact Us For A Free Consultation

Contact Us For A Free Consultation