If you’re ticketed for a car accident, then most likely you are somehow at fault in the accident. If you’re found guilty after you go to court on that, then perhaps you’re not entitled to recovery.
Virginia’s Contributory Negligence Principle
In Virginia, there’s a principle called contributory negligence. Contributory negligence is a complete bar to any financial recovery as a result of an injury caused by a car accident if you were even 1% at fault.
A lot of other states have gone away from that rule, and they’ve changed it to what we call comparative negligence, where we’ll weigh the negligence of the defendant against the negligence of the plaintiff. We’ll put a percentage on that, and if the plaintiff was 10% at fault and got a $100,000 verdict, then the plaintiff would only get $90,000. In Virginia, we don’t do that. We do 1% at fault and you don’t get anything. This is really one of the reasons why there aren’t very many frivolous lawsuits in Virginia, because lawyers work on contingency fees. If you work on a contingency fee and your client is 1% at fault, you’re not going to take that case because you’re going to lose. You’ll get a zero verdict and you won’t get paid at all for your time or effort in going through that case.
Many Virginia personal injury attorneys will not take those types of cases because the risk of losing is too great, so there aren’t as many frivolous lawsuits in Virginia as one would expect. If you don’t think that you’re at fault and you got a ticket, the first thing you should do is go hire a defense attorney who can go to court and fight that battle for you. That person knows the traffic laws inside and out. They go to court and they try these cases all the time, and they can explain to the judge why you weren’t legally at fault in that accident. If the judge agrees with you and your defense attorney, then the judge will dismiss that case. At that point, you should consult a personal injury attorney to see whether their personal injury attorney thinks that you have a case.
There are two very different standards in criminal defense cases and personal injury cases. In a criminal defense case, the defense lawyer has to prove that there’s a reasonable doubt that you were not guilty of a crime in Virginia. But a personal injury attorney has to affirmatively prove that the other party was negligent and that their negligence caused your injury in the car accident. Two very different standards. While you may have your criminal traffic case dismissed, you may still not have a personal injury case on the other side. But if you get your case dismissed, it keeps alive that option that you may have a personal injury case in the future. But it’s important to talk to your personal injury attorney and to talk to your criminal defense attorney and make sure that those two attorneys are on the same page before you ever step foot in a courtroom.
In Virginia, there is a very rare exception to the contributory negligence bar, called the last clear chance doctrine. The last clear chance doctrine says that if the person who hit you and caused your injuries saw you had an opportunity to avoid the collision, and you did not have an opportunity to avoid the collision, then you are not barred from any recovery in Virginia. The problem with this instruction is, it’s a really high level for you to reach if you are a plaintiff in a personal injury case. The instruction for the last clear chance is very rarely given to the jury, and the facts have to be just precisely within those guidelines in order to get that exception presented to the jury. But even in that situation, it’s very difficult to convince a jury that the defendant had the last clear chance to avoid the collision and you did not have any chance to avoid it. So it’s a very rare exception to the contributory negligence bar. But, in the event that you were partially negligent in a case, there are some exceptions like that that will allow you to recover if the facts are appropriate.