NEGLIGENCE FAQ

In order for us to prove that a defendant was negligent, and therefore responsible for damages to you, we must show:

• The defendant had a duty to use reasonable care towards you;

• The defendant breached that duty by acting unreasonably;

• It was foreseeable that by acting unreasonably, the defendant would cause injury to you; and

• The defendant's actions or inactions caused your injury.

Once we prove that the defendant was negligent, you have the right to be compensated for your damages.

Generally, a person owes everyone else with whom he or she comes into contact with a general "duty of care." Normally, you don't have to worry about this duty — it is the same in all instances, the duty to behave with the care that would be shown by a reasonable person. But there are several situations in which courts hold that people owe one another less than this regular duty. The most important of these situations are: 1) one generally has no duty to take affirmative action to help another; and 2) one generally has no duty to avoid causing unintended mental suffering to another.

A person generally cannot be liable in tort solely on the grounds that she has failed to act. This means that if you see that another person is in danger, and you fail to render assistance (even though you could do so easily and safely), you are not liable for refusing to assist.

Example: Sam, passing by, sees Mike drowning in a pond. Sam could easily pull Mike to safety without risk to Sam, but instead, Sam walks on by. Sam is not liable to Mike for any harm sustained by Mike.

There are a number of commonly-recognized exceptions to the "no duty to act" rule. In the above example, if the danger or injury to Mike is due to Sam's own conduct, or to an instrument under Sam's control, Sam has the duty of assistance. Similarly, in the event Sam started to give Mike assistance, once Sam voluntarily begins to render assistance to Mike (even if he was under no legal obligation to do so), Sam must now proceed with reasonable care.

The key to determining whether someone is negligent is to define what constitutes "reasonable" care in any given set of circumstances. Since there is no clear definition of what is reasonable in any given situation, what is reasonable to one person may not be reasonable to another.

Courts often decide whether someone has exercised reasonable care by asking what a person of average intelligence and judgment would have done under similar circumstances. For example, a "reasonable" driver preparing to make a left-hand turn across oncoming traffic would not do so without first checking to make sure that there was ample time to safely make the turn. It would be negligence if a driver failed to check to make sure there was time to make the turn, made the turn anyway, and caused an accident.

The level of reasonable care required varies, depending on whether you are an adult, child, or professional.

Reasonable person standard: An adult is guilty of negligence if he or she fails to act the way a person of ordinary intelligence and judgment would have acted in similar circumstances.

Reasonable child standard: Both a child and his or her parents can be held liable for a child's wrongful conduct. Children, however, are not held to the same level of care as adults. A child's conduct is measured against what would be expected from a similar child of like age, intelligence, and experience under similar circumstances. Because a child does not have the same mental capacity or life experience as an adult, the courts recognize that in some instances a child should not be held responsible for otherwise "negligent" behavior. For this reason, children of very young ages generally cannot be held liable for negligence. The judge will decide on a child's capacity for negligence. If the child is deemed capable of negligence, then the issue of whether or not the child actually was negligent will be decided by a jury.

One major exception to the rule is that a minor will generally be held to an adult standard of reasonableness if the child is engaging in "adult" activities. For the most part, a child will only be held to this standard in situations in which the child is operating a motorized vehicle.

Professional community standard: Professionals (lawyers, doctors, architects, engineers, psychiatrists, etc.) are held to a higher standard of care due to their specialized training and experience. Professionals and individuals who practice "skilled trades" (plumbers, carpenters, electricians, beauticians, etc.) may be found to be negligent if they do not exercise the same degree of skill and knowledge normally exercised by other qualified and competent members of their professions working in their communities.

In order for a person who is negligent to be liable to you for damages suffered from an accident, it must be proven that the negligence actually caused your injury. The negligent person's action or inaction can be the sole cause or your injury or one of a number of causes.

Example: Suppose a truck is speeding too fast along the road when it suddenly approaches a car left abandoned in the middle of the road. To avoid a collision, the driver of the truck attempts to apply the brakes. A local mechanic recently repaired the brakes but forgot to change the old, worn-out brake pads. As a result, the brakes fail and the truck barrels into the parked car, which in turn collides with you as you try to cross the street in an area that is not a designated crosswalk. The resulting injury you received had many causes, including the trucker's negligent driving, the negligent repair of the truck's brakes, the car negligently left in the middle of the road, and your own failure to cross the street in a safe manner.

Comparative Negligence

In the above example, the judge or jury determines the degree of the each party's negligence and apportions to each party a portion of the total damages you suffered based on each party's percentage of fault for causing your injury. This process is called "comparative negligence," and is the method by which damages are awarded in Virginia. In "pure" comparative negligence, the amount of damages awarded to the plaintiff will be reduced in direct proportion to the plaintiff's percentage of fault, no matter what the ratio. For instance, if you are 30 percent at fault for an accident, you could recover 70 percent of your damages. If you are 70 percent at fault for an accident, you could recover only 30 percent of your damages. All of the other parties alleged to be at fault would then be responsible for paying you 30% of your total damages, apportioned between them in proportion to the amount of fault assigned to them.

Violation of a Statute

In some circumstances, proof that an individual violated a statute or law is enough to prove that the individual is negligent. Under the doctrine of "negligence per se," an individual is negligent if he or she violates a legislative statute, regulation, or ordinance and causes an injury or loss.

Example: Suppose an ordinance prohibits people from making U-turns at a particular intersection. If an individual makes an illegal U-turn and injures someone while making the turn, the person who made the illegal turn can automatically be held responsible for the injuries, regardless of whether they used reasonable care when making the U-turn. The fact that they violated the ordinance makes them negligent per se.

The doctrine of negligence per se applies only if the accident is the type of accident the statute or ordinance was designed to prevent and the injured party is within the class of people that the statute or ordinance was meant to protect.

Example: A U-turn law is normally enacted to protect other drivers passing through the intersection. If a driver passing through the intersection is injured by someone making an illegal U-turn, the doctrine of negligence per se is applicable.

In certain situations, an individual's violation of a statute or ordinance is excusable in certain circumstances. For the most part, these permissible excuses include physical circumstances beyond the individual's control, sudden emergency situations not created by the individual, and/or situations in which compliance with the law would create a greater danger to those involved than would a violation of the law.

The Assumption of Risk

If you participate in activities that you know are risky or dangerous, and you are injured as a result, it may be determined that you "assumed the risk" of injury associated with that activity. For example, a skier who knowingly skis down a steep mountain containing large moguls assumes the risk of harm inherent in such an activity. His claim for damages would most likely fail unless his injury resulted from a condition unrelated to those for which he was fully able to appreciate and assess the risk. For example, the skier may have realized that skiing can be hazardous and have a full understanding of the dangers. However, he would not have anticipated that a ski-lift cable would break and fall in his path, causing him to fall and get injured. The assumption of risk does not protect the defendant in this type of situation.

Open and Obvious Danger

Another defense, which is similar to the assumption of risk, arises when you engage in an activity that poses an open and obvious danger. Whereas the assumption of risk focuses on an array of dangers that are inherently possible, open and obvious conditions deal with one's knowledge of a specific known threat. For example, suppose you enter your neighbor's yard knowing that it contains an aggressive pit bull, and despite the posted warning, "Danger! Attack dog, do not enter." Your neighbor could use the open and obvious danger defense to argue that you clearly understood the danger of being bitten by the dog but decided to enter the property nonetheless.

As with all lawsuits, a statute of limitations restricts the time in which you can file a lawsuit for negligence. In Virginia, the statute of limitations for negligence is two years. Va. Code § 8.01-243(A). If you miss the deadline, you have no legal recourse. Note that this time is typically much shorter if you are alleging negligence against a public entity, municipality, or public employee. If you are injured, it is essential that you contact an attorney immediately so as to be sure to preserve all of your legal rights before they are barred by law.

The burden of proof in all negligence claims, including automobile accident claims, is on the plaintiff. This means that the plaintiff must go forward first with the evidence at the trial and must present evidence from which a fact finder (judge or jury) could reasonably conclude that the defendant was negligent, that the defendant's negligence proximately caused the accident and that the plaintiff's injuries are causally related to the accident. The standard which plaintiffs are held to in civil cases, including automobile accident cases, is called the "preponderance of the evidence" standard. It is much less strict than the standard in criminal cases of proof "beyond a reasonable doubt." The "preponderance of the evidence" standard has been defined to mean that the evidence presented by plaintiffs must be more likely to be true or accurate than not true. In essence, this means that plaintiff's evidence must convince a fact-finder's mind more than 50% that the facts alleged by the plaintiff are true.

The preponderance of the evidence standard can be illustrated for juries by comparing it to the scale of justice. If one party's evidence is placed on one side of the scale and the other party's evidence is placed on the other side of the scale, the slightest tipping in favor of the party bearing the burden of proof on an issue means that that party has prevailed on the particular issue. If the scale remains evenly balanced, then the party who bears the burden of proof on an issue has failed to meet the burden. Each party who has the burden of proof on a particular issue, in order to prevail on that issue, must sustain their burden of proof based upon a "preponderance of the evidence."