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Effects of Contributory Negligence on Virginia Claims

The following is an excerpt from an interview with an attorney in Virginia.

What is contributory negligence and its effect on a personal injury claim?

Contributory negligence a legal doctrine that provides that if a judge or a jury finds that a plaintiff is at fault in any way for their own injuries or the incident that caused their injuries, even one percent at fault, there is a total bar to recovery. Contributory negligence in practice means that a plaintiff will often be deprived of any chance for recovery in many situations where they might be able to obtain recovery in other jurisdictions. The impact on a personal injury case is that there is this additional hurdle to clear. As an attorney evaluating a case, you have to consider the possibility of contributory negligence and, unfortunately, that leaves many people without any legal recourse where they might otherwise have a relatively strong claim in another jurisdiction. Contributory negligence has to be pled and proven by the defense, however, so there may be cases where it is a tough call and those might end up going to trial.

Is there a limit to the compensation a plaintiff can receive in an injury case?

That all varies from jurisdiction to jurisdiction. As a general rule, there is no hard and fast rule that limits the damages that can be recovered, but legislatures in different jurisdictions have enacted caps on non-economic damages, caps on damages against municipalities and state governments, and in other circumstances as well. There are certain jurisdictions that limit damages in medical malpractice cases, for instance, or place limits on punitive or exemplary damages. As a general rule, there is no uniform cap on recovery that applies in every set of circumstances in all jurisdictions, so it is important to speak with an attorney to understand what the applicable limitations may be in a certain jurisdiction.

As far as how damages are calculated, the majority of damages will come from past and future medical bills, loss of wages, and so-called non-economic damages for harms and losses, often referred to as “pain and suffering”. Harms and losses can include the impact that an accident or injury has on the injured person’s daily life and their ability to function. If someone has impairments that keep them from being able to cook, clean their house, and get dressed, or if they used to be a runner, for example, before their injury occurred and they cannot run anymore, those would all be considered non-economic damages. Non-economic damages are extremely important and a jury or a judge can take those into consideration when deciding how to compensate a plaintiff.

How often do personal injury cases go to trial?

The majority of personal injury cases are resolved prior to trial. A higher percentage of medical malpractice cases go to trial, but as a rule, trial is relatively rare in personal injury cases. That being said, every case is different and you often do not know at the outset if a case is likely to resolve prior to trial. At [our firm], we prepare every case as if it will go to trial. This helps in our investigation, the development of our theories of liability, and our negotiations with the at-fault party’s attorneys and/or insurance company. If a resolution can be reached prior to trial, that is often in the best interests of the client, as litigation can be very costly, but we always prepare for trial so that we are ready to file a lawsuit if negotiations break down or if there are genuine issues of law or fact that require the court system to resolve.