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February 2, 2023
- Injury Lawyer
- Negligence
- By Cesar Ornelas
The laws in each state dictate if a victim can receive legal relief. If you were in an accident, you must consider your role in the accident before bringing your case to court.
The personal injury attorneys at Cesar OrnelasInjury Law are here to help you with your claim. If you live in one of five states that practice contributory negligence, keep reading to find out how your accident claim might be affected.
Pure Contributory Negligence
There are five states that abide by the rules of pure contributory negligence. The other states that follow the same system are Alabama, Washington, D.C., Maryland, and North Carolina.
In pure contributory negligence, if the plaintiff is even 1% at-fault for an accident, they will be barred from being compensated for their injuries. This approach is an “all or nothing” mindset. For this reason, pure contributory negligence is sometimes called contributory fault.
In personal injury lawsuits, the trier of fact, being either a judge or a jury, must “consider the evidence in the light most favorable to the plaintiff.” Even so, it is difficult to recover for your injuries. Examining all relevant information, if a court finds you even slightly responsible, your case will be thrown out.
Pack v. Doe
Unlike many states that have statutes codifying negligence law, Virginia’s contributory negligence rule was decided through case law. The rule was upheld in Pack v. Doe, 374 S.E. 2d 22 (1988).
In Pack, Anthony Mitchell Pack was lying motionless in the middle of a highway in Roanoke County, Virginia, when a tractor-trailer truck ran over him. The truck operator fled the scene without stopping. Pack was reportedly drunk and unconscious when he was killed.
The trial court ruled in favor of the defendant, and on appeal, so did the Supreme Court of Virginia. The court decided that Pack’s estate could not financially recover since Pack’s drunken state contributed to his injuries and death. Pack v. Doe set the standard for contributory negligence in the state of Virginia.
Burden of Proof
In every legal case, civil or criminal, there are different levels of proof that are required in order to have a court rule in your favor.
In most personal injury cases, the plaintiff is required to show that it is more likely than not that the defendant is liable. This burden is known as preponderance of the evidence. Percentage-wise, this means that the plaintiff must show that it is at least 51% or more likely that the defendant committed the alleged acts.
Exceptions to Contributory Negligence
There are a few exceptions to a contributory negligence defense:
Last clear chance doctrine
In the “last clear chance doctrine,” the plaintiff can testify that the defendant had the last chance to avoid injury to the plaintiff by simply using ordinary care. Since the defendant missed his or her chance, they are entirely responsible for the injury or damage sustained by the plaintiff.
This applies to two types of plaintiffs:
- “Helpless plaintiff”: When the injured party has negligently placed himself in a position of peril from which he is unable to remove himself; or
- “Inattentive plaintiff”: when the injured party has negligently placed himself in a position of peril from which he is able to remove himself but is unaware of his peril
Common carrier employee
If an employee of a common carrier (i.e., United States Postal Service, FedEx, UPS) was injured at work, they are not barred from recovery.
Rather, damages will be reduced by the amount of fault that can be attributed to them.
If a safety code is violated, the employee will not be held liable for any injuries they suffered.
A blind individual failing to use a mobility aid
If a totally or partially blind person fails to use a cane or guide dog and is injured crossing the road, they will not be barred from recovery. A blind person failing to use a cane or guide dog does not constitute contributory negligence.
These are just a few of the exceptions that may be available to you if the defense raises contributory negligence.
Legal Remedies
In any personal injury case, the victim may be entitled to receive compensation for their injuries, known as damages.
Often a victim of an accident suffers both financial and physical suffering. Damages are intended to make the injured party “whole” again.
Compensatory damages apply to actual losses suffered by the plaintiff. There are two main types of compensatory damages: economic and non-economic damages.
Economic damages are those losses that have a monetary value and can be easily quantified.
Examples of economic damages:
- Lost wages
- Lost earning potential
- Past and future medical bills
- Rehabilitative therapies
- Property damage
Non-economic damages are those losses that do not have a dollar value associated with them, but they affect the victim’s quality of life.
Examples of non-economic damages:
- Pain and suffering
- Loss of companionship and society
- Disfigurement
- Loss of consortium
- Loss of enjoyment of life
In medical malpractice suits, there is a statutory damage cap for non-economic damages. The cap increases by $50,000 every year and is currently at $2.55 million. It is set to expire on June 30, 2031, at which time legislation will need to be passed detailing the new statutory limits.
Depending on the circumstances behind the injury, the victim may also be able to collect punitive damages. Punitive damages are designed to punish the wrongdoer and discourage others in society from behaving in a similar manner.
Virginia has a cap of $350,000 on punitive damages. The plaintiff must show that the defendant acted with a reckless disregard for how their actions would affect others. Albeit, punitive damages are not as easily awarded.
A knowledgeable personal injury attorney will be able to assist you further regarding your specific situation.
A Devoted Personal Injury Attorney
Each state handles fault differently. If you have fallen victim to a personal injury accident, you need the legal guidance of Cesar Ornelas Injury Law. Our firm is devoted to making you “whole” again. We have the skills to assess your situation and determine what legal options may be available to you. Contact us today to schedule your free consultation.
Originally from Kyle, Texas, Mr. Ornelas is a first-generation college graduate and a first-generation attorney.
Licensed in Texas, Cesar Ornelas’s nationwide practice is entirely contingency fee-based and consists of a wide variety of catastrophic personal injury and death cases. He has represented countless victims of catastrophic accidents across the United States.
