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  • Writer's pictureGregory Sandler


Have you ever called someone NEGLIGENT because they cut you off in traffic? Many people use the word negligence, but under Virginia law, this word has a very specific meaning. In fact, all new law students study negligence because the American civil justice system depends on it.

To win a negligence case in Virginia, the person suing, known as a plaintiff, must PROVE four things:

1. That the person who injured him had a duty to exercise ordinary care toward him;

2. That the person who injured him breached, or violated, that duty;

3. That the person’s acts or failure to act caused the plaintiff’s injuries; and

4. That the plaintiff was damaged in some way.

Although many people may think, “Well the other guy didn’t MEAN to hurt me”, in actuality, the plaintiff does not have to prove that the wrongdoer did ANYTHING intentional at all. Instead, the focus in a negligence case is on whether the person being sued, known as the defendant, exercised ordinary care. Filer v. McNair, 163 S.E. 335 (Va. 1932). If someone acted with the intention to cause harm, like by committing a battery, then the facts, the damages, and the law would be very different.

What’s more, whether negligence occurred depends on the facts of each individual case because the facts are what determines whether one’s behavior constitutes ORDINARY CARE.

What are some EXAMPLES OF POTENTIALLY NEGLIGENT BEHAVIOR? • Running a red light • Failing to use headlights at night • Failing to diagnose a medical condition properly or timely • Failing to keep a proper lookout • Failing to properly give notice of a known defect

The Virginia Supreme Court has long held that negligence “is the violation of a legal duty which one owes to another.” In all of the examples above, a duty exists. For example, all drivers have a duty to operate their vehicles with reasonable care toward others using the road and a duty to keep a proper lookout. Drivers must also obey traffic laws.

The second thing a negligence plaintiff must show is that the duty was broken. In the law, this is known as “breach.” Both running a red light and failing to use headlights when required would breach a driver’s duty toward others. In addition, an omission to act can be negligence just as performing an act can be negligence. However, simply proving these first two elements of a negligence case is not enough to win.

Third, the plaintiff must show that the wrongdoer’s action was the cause of his damages. In Virginia, “[n]egligence cannot be presumed from the mere happening of an accident.” Farren v. Gilbert, 297 S.E.2d 668 (1982). For example, if an officer comes upon a motorcyclist lying in the road next to his bike, he cannot PRESUME that this was caused by the biker’s negligence simply because of the scene. However, direct evidence, such as eyewitness testimony, is not required. A plaintiff can use circumstantial evidence to prove his case. Good examples of circumstantial evidence in car accident cases include the position of the cars after the wreck and skid marks.

Finally, the plaintiff must show that he was damaged due to the wrongdoer’s actions or failure to act. Damage can include injuries to a person’s body, as well as injuries to property.

In our red light example, dents to the other driver’s car would qualify as property damage. If the other driver had broken bones as a result of the wreck, that would qualify as a personal injury. The pain, mental stresses, and suffering of the injured person are also elements of damage, as well as embarrassment, scarring, and other intangible damages, both now and into the future, if the medical evidence supports that connection. However, not all personal injuries can be seen. For example, soft-tissue injuries involving muscles, ligaments, and tendons often cannot be seen with the human eye. Mental stress and depression are also good examples of damages that are not necessarily obvious.

The Sandler Law Group handles negligence lawsuits every day, and we approach each case as if it were going to be tried to a jury. 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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