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The effect of contributory negligence on auto accidents

Many Virginians who are injured in traffic accidents believe that they have an absolute right to recover damages from the party who caused the accident. This belief is based on the concept of "negligence," which allows a person who suffers an injury because someone else was negligent, i.e., failed to use due care. This belief, unfortunately, is incorrect.

A rule of the common law, which governs the rights and obligations of Virginians in the absence of a specific statute or rule, says that anyone whose negligence causes an auto accident or other incident that results in personal injury cannot recover damages from another party, even if the other party is more at fault than the plaintiff. The rule, called contributory negligence, can often can seem arbitrary and unfair.

Consider a two-car accident in which one driver is traveling at 5 mph over the speed limit and the other driver fails to obey a stop sign. Most people would conclude that the driver who fail to obey the stop sign is more negligent than the driver traveling only 5 mph faster than the speed limit. If the accident happened in Virginia, neither driver would be able to recover damages from the other.

Many state legislatures have changed the law by adopting the concept of comparative fault. In comparative fault jurisdictions, the jury is asked to determine the relative degree of fault for each driver, and the judge then awards damages accordingly. In the foregoing example, if a jury determined the speeding driver to be only 20 percent at fault and the other driver to be 80 percent at fault, the speeding driver would still be able to recover a percentage of his or her damages.

In Virginia, the speeding driver, despite being only 20 percent at fault, would be completely barred from recovering even reduced damages. While many states have replaced the complete bar of contributory negligence with the more equitable comparative fault formula, the Virginia legislature has not seen fit to do so. Anyone injured in an accident where fault cannot be clearly allocated to a single party may require the services of an experienced auto accident attorney for advice on whether or how to commence an action for damages.

Source:, "Virginia Negligence Laws," accessed on Jan. 6, 2018

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