Schilling & Esposito April 21, 2020

Nature of injury

It stands to reason that the most important factor which will affect the amount of damages that you can recover is the nature of the injury sustained. The more serious an injury is, the higher the value of the claim. If you suffer from a soft tissue injury, such as with whiplash or neck strain, you will not recover as much as someone who is injured more seriously, involving ligament tears, bone fractures, and nerve damage. Injuries such as whiplash and back strains are known as soft tissue injuries because they involve only muscle. Although the condition can be painful, it's usually not permanent. Moreover, there is limited ability to detect this condition through medical examination, whereas bone and ligament damage is easily seen on a standard x-ray. Serious injuries that can be detected with a medical examination typically receive much higher damage awards. If you have medical documentation to prove your damages, you will usually receive more compensation for your injuries.

In addition, the amount of treatment required, as well as the degree of permanency of your injuries can significantly affect the amount you will recover. Conditions which require surgery and extensive rehabilitation will present more compelling evidence of damages than injuries which heal without the need for medical intervention.

Degree of defendant's liability

As noted in our materials on negligence, if the defendant is 100% at fault for causing the accident, the amount of the award will fully represent the value of the damages that are presented. There will be no reduction in the award based on the defendant not being entirely at fault. For example, if you are a passenger sleeping in a car hit by a drunk driver, you are not at fault for your injury, while the defendant is completely at fault. The only issue at trial will normally be how much your damages are worth. However, if you in any way are accused of sharing responsibility for the accident with the defendant, the amount of your settlement or damage award may decrease. At Schilling & Esposito, we will vigorously contest any claim that you are partially at fault for causing an accident where appropriate. Using our experience and the services of expert accident reconstructionists and investigators, we will focus on proving the fault of the defendant so that we can obtain the maximum possible settlement or verdict for you.

Contributory negligence

If a plaintiff is found partially at fault for an accident, he or she will have lost his or her case. In Virgina, contributory negligence is used to calculate the degree of the plaintiff's negligence and bar the plaintiff's claim reward altogether. Contributory negligence is an affirmative defense that is based on the objective standard of whether a plaintiff failed to act as a reasonable person would have acted for his or her own safety under the circumstances. Sawyer v. Comerci, 264 Va. 68 (2002). The defendant has the burden of pleading and proving the contributory negligence of the plaintiff to satisfy the judge or jury. A defendant who relies upon the defense of contributory negligence must prove that the plaintiff deviated from a standard of care and that the deviation was a proximate cause of damages. When the injury results from an intentional act of a defendant, however, contributory negligence may not be plead by the defendant as an affirmative defense —a plaintiff's negligent acts contributing to the injury do not bar his recovery in that situation. Williams v. Harrison, 255 Va. 272 (1998).

Example: Suppose a jury awards you $100,000 in damages after you fell down the stairs. However, it also finds you 30 percent at fault for your injuries because you did not hold on to the hand rail. After applying contributory negligence, you would be barred from recovery altogether.

Assumption of Risk

One common example of contributory negligence is "assumption of risk." If a person undertakes an action while aware of the risks associated with performing that action, there are circumstances where this assumption of the risk will be considered contributory negligence. Then, the person's actions become contributorily negligent when his knowledge of specific hazards that aren't normally present should create a standard of care that he must observe to be non-negligent.

Example: Four individuals were killed when they were involved in a car accident wherein the driver of their car drove into a tree. Plaintiff decedent's estate filed a wrongful death action against defendant, the administratrix of the driver's estate. The driver had a blood alcohol level above the legal limit. The court found that in order to find that the decedent voluntarily assumed a known risk, the jury was required to speculate that the decedent was awake while the driver was drinking, that she was able to observe all his actions, that her attention was not diverted during the time that he consumed the alcohol, and that she did not attempt to get out of the car or to dissuade him from driving. The court ruled that there was no evidence from which the jury could conclude that the decedent assumed the risk. Young v. Lambert, 253 Va. 237 (1997).

Last Clear Chance

There are some limitations to the defense of contributory negligence. One of these is the "last clear chance" doctrine. If, in an accident that the plaintiff contributed to negligently, the defendant had an opportunity to prevent the harm just before the accident and the plaintiff did not have such an opportunity, then the existence of the defendant's opportunity wipes out the effect of the plaintiff's contributory negligence. Under Virginia law, the last clear chance doctrine applies in two situations: (1) where the injured party has negligently placed himself in a position of peril from which he is physically unable to remove himself (the helpless plaintiff); and (2) where the injured party has negligently placed himself in a position of peril from which he is physically able to remove himself, but he is unconscious of his peril (the inattentive plaintiff). Williams v. Harrison, 255 Va. 272 (1998).

Example: A motorist was driving at a rate of high speed through a neighborhood when he lost control of his car. To avoid hitting the motorist's car, the driver, who was also speeding, moved his car into another lane. However, the motorist moved in the same direction, causing the cars to crash. To be entitled to the last clear chance instruction to the jury, the defendant would have to show that the plaintiff negligently placed himself in the position in which he was injured, or was inattentive to the peril even though he had a chance to avoid the collision. Williams v. Harrison, 255 Va. 272 (1998)

Joint and Several Liability

As a general rule, Virginia holds two or more defendants who are responsible for causing an injury jointly and severally liable. Richmond Coca-Cola Bottling Works, Inc. v. Andrews, 173 Va. 240 (1939). This means that in cases where multiple defendants are responsible for the plaintiff's injury, each defendant is held individually liable for the full amount of the damages.

For example, if defendants' A and B are each responsible for 50% of plaintiff's damages, A and B are each still liable for the full total apportioned to the defendants. This does not mean that the plaintiff can recover 100% from each of them, it merely means that the plaintiff can recover up to the full total between the two defendants, whether it all comes from A, B, or a combination of the two. However, A and B have what is known as a right to contribution. Va. Code § 8.01-34. This means that if the plaintiff recovers more than A's "pro rata" share of the damages, then A can sue B for partial reimbursement. McKay v. Citizens Rapid Transit Co., 190 Va. 851 (1950).

Example: A woman was injured when the bus in which she was traveling collided with a trailer truck driven by the operator and owned by the owner. The woman settled her claims against the bus company, and the settlement amount was paid by the bus company's insurer. The bus company sought contribution on behalf of the insurer from the owner and the operator for 50% of the damages that the insurer had paid to the plaintiff. McKay v. Citizens Rapid Transit Co., 190 Va. 851 (1950).

Joint Tortfeasors

The theory of joint and several liability is that when separate and independent acts of negligence of several persons combine to produce a single injury, the actors are considered joint tortfeasors. The plaintiff can sue these joint tortfeasors in the same action, and each individual defendant will be held responsible for the entire amount of damages. The purpose of this rule is to transfer the risk that one defendant will lack the resources to pay the damages from the plaintiff to the other defendants. If one defendant pays the entire judgment, that defendant can sue the other defendants to contribute the amount of the damages for which the jury found them responsible. Va. Code § 8.01-34. In Virginia, the plaintiff can recover the full amount of damages from any defendant that is 1 percent or more at fault.

Respondeat Superior

If an employee commits a tort during the "scope of his employment," his employer will be liable (jointly with the employer). This is the rule of respondeat superior. Respondeat superior is applied to cases involving "employees," in which the employee is subject to the close control of the person who has hired him. This is distinguished from an independent contractor situation, where the hiring person does not control the "physical details" of the work but rather just the general manner in which the work is carried out. Independent contractors generally do not fall under respondeat superior liability unless the employer retains the right to control the manner in which the contractor performs the work. In respondeat superior cases, while the plaintiff bears the burden of persuasion on the issue whether the employee was within the scope of the employment when the act which caused the injury was committed, the plaintiff's burden of production on that issue is met by establishing the employer-employee relationship at that time. When the plaintiff presents evidence sufficient to show the existence of an employer-employee relationship, she has established a presumption of liability. The burden of production then shifts to the employer, who may rebut that presumption by proving that the employee had departed from the scope of the employment relationship at the time the injurious act was committed. Majorana v. Crown Cent. Petroleum Corp., 260 Va. 521 (2000).

Example: A plaintiff is assaulted by a gas station employee when she attempts to pay for her gasoline. She files suit against the employee and the employer for intentional infliction of emotional distress. Even though the actions of the employee were not during transaction of business, he was acting within the scope of employment as an agent of the employer, so the employer is liable for the employee's torts. Majorana v. Crown Cent. Petroleum Corp., 260 Va. 521 (2000).

Joint Enterprise Liability

A "joint enterprise" may arise in negligence actions, where the negligence of one main actor is imputed to the other actors and results in imputed contributory negligence. It often arises in auto accident cases, where the negligence of the driver is imputed to the passenger (either to allow the occupant of a second car to recover against the passenger, or to prevent the passenger from recovering against the negligent driver of the other car under the doctrine of imputed contributory negligence.)

Example: Plaintiff was injured in an accident when her vehicle was struck by defendant's car. Plaintiff sued the defendant for injuries sustained in the accident. Defendant sought to raise imputed contributory negligence on the plaintiff's part under joint enterprise liability. The court held that the husband's negligence in driving the vehicle that was registered in both his and plaintiff's names was not imputable to plaintiff because the presumption was that the husband was in absolute control of the vehicle and responsible for its operation. The defendant would have to show that the plaintiff had control over her husband's driving at the time of the accident, causing the accident, in the form of commands or directions. Painter v. Lingon, 193 Va. 840 (1954).

Alternative Liability/Acting in Concert Liability

As a special circumstance of joint and divisable liability, sometimes the actions of two or more defendants combine in such a way that it is nearly impossible for the plaintiff to identify which defendant's action caused the plaintiff's injury. An example of this would be if two hunters in the woods fired towards an animal, but one of the bullets struck the animal while the other bullet hit a bystander. Without knowing which bullet was fired by which hunter, the plaintiff would be unable to establish the liability of either hunter. To remedy this, some states, including Virginia, recognize "alternative liability" or "concert of action," where the actions of multiple negligent defendants result in an injury and the plaintiff can't prove whose act caused the injury.

Example: A defendant collides with an unlit trailer parked on the side of the road, leased by two co-defendants. The passengers of the defendant's vehicle sued the driver and the two co-defendant's, who both denied they had placed the trailer in its position where the accident occurred. The plaintiff's could not prove who had control over the trailer leading up to the collision. The court held that where it is virtually certain that one of two defendants is responsible for plaintiffs' injuries, and the evidential key as to which it is, is peculiarly within the knowledge of defendants, it is fair that the defendants be called upon to furnish information upon the basis of which the jury can determine the responsible party.

Market Share Liability

In cases involving many defendants who produce the same or identical-looking products, courts in some states have held defendants liable under "market share" liability. This arises when several manufacturers produce a product that plaintiff's can't separately identify as coming from a particular manufacturer. For example, when plaintiffs several years took a miscarriage-preventing pharmaceutical that had an indistinct shape and label, courts in other states held that the manufacturers could be held liable to the percentage of market share they occupied on a nationwide basis at the time of injury, because the courts saw a need for accountability from the manufacturers, and the lack of identifying marks on the drug should not be a bar. Under Virginia law, market share liability is generally not imposed for products liability.

Plaintiff's and Defendant's credibility

Whether or not a jury or insurance company is likely to find you and your claim believable and of significant worth will strongly impact your claim. Can you accurately describe the events of the accident? Can you describe your injuries in detail and in a convincing manner? Are you intelligent and well spoken? Would you make a good witness on your own behalf?

The term used to describe these intangible factors is "jury appeal." Remember that the jury members will judge both you and the defendant, and that their opinion of you will weigh into their decision on whether to award you damages, and if so, how much. It is important that all of the claims that you make are supported by the evidence, or you may quickly lose credibility with the jury.

The credibility and perception of the defendant will also affect the amount of money you receive. If the defendant in a car accident case is a 20-year-old driving a hot rod, jurors aren't likely to view the defendant favorably. This can also help a plaintiff in cases where the defendant refuses to admit fault for the accident. Exposing the "holes" in defendant's version of the accident will damage the defendant's credibility, resulting in higher damage awards in most cases.

Plaintiff's age

Age plays a role in determining the value of a plaintiff's claim, particularly where permanency of injury is alleged. If you are a 20-year-old woman who lost her leg in an accident, then a jury will award a higher amount of damages than if you are a 80-year-old woman with the same injury. The basis for this is that the younger woman has more future pain and suffering, loss of enjoyment of life, loss of income, and mental anguish ahead of her than does the older woman.

Witness testimony

The credibility of witnesses also plays a role in affecting the amount of any recovery. This relates not only to witnesses to the accident itself, where proof of fault can be affected by their testimony, but to witnesses who are called to testify as to your damages as well. It is helpful to have credible witnesses who can clearly describe your condition before the accident to the jury, so as to assist them in understanding the change in your condition post-accident. In addition, expert witnesses often play a critical role in the outcome of any personal injury trial. In cases where there are "dueling experts," the background and professional experience of your expert is critical to establishing his or her influence over the jury.