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  • Writer's pictureGregory Sandler


Negligence is an essential element of personal injury cases, particularly those involving motor vehicle accidents. The definition of negligence is pretty standard, but there are different theories of negligence that are applied from state to state. The definition of negligence, according to the Cornell Law School, is “a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.”

The plaintiff (the injured person) has the burden of proof to prove that the defendant was negligent and the negligence caused the harm to the plaintiff. As a defense, however, the defendant can try to prove that the plaintiff was also partially negligent in causing the crash. Consider the case where two cars collide in the intersection with no traffic lights and no witnesses. Both parties claim the right of way, and each claim the other was at fault.

How the state you are in treats this concept of “mutual negligence” may be the difference between your full recovery and getting ZERO.

The two different theories involving mutual claims of negligence are comparative negligence and contributory negligence.

Comparative negligence holds that if a plaintiff who is suing for damages from an accident was in some way at fault for the accident, then his recovery is limited. Various states apply either pure comparative negligence or modified comparative negligence. Under the pure version, a plaintiff can recover even if his fault is substantial. The modified version limits recovery to the extent that the plaintiff’s fault contributed to the accident and may even require that his fault be less than the defendants. Essentially, the jury (or judge) decides that if the plaintiff was 20% at fault, then he would only recover 80% of his damages.

The bad news for us in Virginia (and three other states, plus the District of Columbia), is that we have a contributory negligence law. This draconian, court-created law means that if the plaintiff is to ANY degree at fault for the accident, she LOSES. Yes, Virginia, we play in an “all or nothing” game.

Consider the case where a drunk driver is speeding down the road at night with his lights off and strikes a person who happens to be crossing the road 10 feet outside of a crosswalk. You can bet that the defense will claim that DESPITE his client’s outrageous conduct, the injured person was also at fault for being out of the crosswalk. PLAINTIFF LOSES! Because of contributory negligence, insurance companies in Virginia will beat down valid cases and force them to trial, just to get a chance at avoiding responsibility under the “you were 2% negligent so you lose” argument. Harsh, but true, and there are no signs that the Virginia legislature intends to fix this concept. (Follow the money!)

Notwithstanding this concept however, many times the injured person’s conduct may NOT actually be a causal factor in the crash, and that is where being a good trial lawyer comes into play.

The Sandler Law Group handles personal injury lawsuits every day, and we approach every case as if it were going to be tried to a jury. We know how to navigate the contributory negligence puzzle. Don’t let an insurance adjuster tell you that your fault means no recovery. Call us toll free 800-9-THE-LAW or (757) 627-8900 to schedule an initial FREE consultation. You may also contact us online at or email us at

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