When it comes to determining whether an injured person can pursue a Virginia personal injury claim after an accident, Virginia relies on the doctrine of contributory negligence. Contributory negligence is a harsh rule, that prohibits any injured person from bringing a claim against any other at-fault party, if the accident victim shares any blame for causing the accident. Thus, if a motorist is found to be only five percent at fault for a car accident, they could not file a Virginia car accident lawsuit against the other driver who was 95 percent responsible.

Clearly, the contributory negligence rule can lead to some very unfair results. And despite years of efforts from personal injury attorneys and some politicians, state lawmakers refuse to adjust the doctrine. Notably, Virginia is one of only a few states that still use contributory negligence. Most other states rely on a doctrine called comparative fault, in which an at-fault accident victim can still recover for their injuries, but will only recover a reduced amount. Specifically, the accident victim’s damages award is reduced by their own percentage of fault.

However, there is a very important exception to Virginia’s contributory negligence rule in accidents involving common carriers. A common carrier is an individual or business that transports people for a fee. For example, buses, taxis, and Uber and Lyft drivers are all common carriers.

In some Virginia personal injury lawsuits, testimony from experts may be necessary to lend further credibility to the argument that a party is making, but also to provide more context to the facts of a particular case. Sometimes, however, experts are retained repeatedly and may have previous, longstanding relationships with insurance companies or attorneys. The potential for bias for these experts can be high because of these relationships, and evidence of that bias may be crucial for a party to establish when arguing against or working to discredit the expert’s testimony.

In a recent Virginia Supreme Court opinion, the court considered whether evidence of an expert’s previous relationship with an insurance company and potential bias could be introduced in court. The plaintiff was driving when she was hit from behind by the defendant. Following the accident, the plaintiff experienced back, hip, and neck pain and increased depression and anxiety. The plaintiff sought medical care and physical therapy that cost more than $26,000 and sued the defendant seeking $150,000 in damages. The defendant’s representation retained an orthopedic surgeon to serve as a witness, who opined that the car accident only caused minor injuries to the plaintiff and that much of the pain she experienced was the result of conditions that were present before the accident. He also argued that her medical expenses should only be around $3000.

During depositions prior to trial, it was discovered that the surgeon had been retained by the defendant’s attorney more than 30 times over the last decade, but not by the defendant’s insurance company directly. However, the surgeon had done work with the insurance company before this case through the defendant’s attorney and had been compensated by the insurance company for his expert testimony. Before trial, the plaintiff moved to introduce evidence showing the surgeon’s previous relationship with the defendant’s attorney and her auto insurance company. The court allowed the plaintiff to introduce evidence that the surgeon had testified on behalf of the defendant’s attorney’s clients in the past but barred her from discussing his previous work for the defendant’s insurance company because there was no direct relationship between the surgeon and the company.

The Supreme Court of Virginia recently issued an opinion addressing the nexus requirement for injuries a victim suffered on a school bus. The case arose after a special needs child suffered abuse while riding a school bus. The victim, who was ten years old at the time of the incident, has autism and cannot communicate verbally. The bus driver and aide were aware of the boy’s special needs and used a harness to secure him into his seat. While the boy was strapped to his seat, two other children repeatedly beat the boy, slapped his head, choked him, and sprayed chemicals in his face. The victim’s mother filed a claim under her uninsured motorist coverage, for damages the boy suffered due to the attack. The insurance company argued that the policy did not cover this situation because no nexus existed between the boy’s injuries and the school bus’s use as a means of transportation.

In Virginia, when courts analyze the application of an insurance policy coverage concerning the “ownership, maintenance, or use” of a vehicle, they place significant consideration on the intention of the parties to the agreement. Under the law, “ownership, maintenance, or use” should be evaluated under the terms’ ordinary meaning. The primary inquiry is whether there is a causal relationship between the incident and the use of the vehicle, as a vehicle. Although, the vehicle’s use does not need to be the actual or proximate cause of the injury, there should be a causal connection. In other words, for coverage to apply, the use of the vehicle cannot be incidental or tangential. Courts look to what the victim was doing when he suffered injuries, and what role the vehicle played in the incident.

In this case, the court found that his mother’s uninsured motorist provision did not cover the victim’s injuries. The insurance company’s provision provides that the company pay damages for bodily injuries that “arise out of the ownership, maintenance, or use” of the uninsured vehicle. Here, the court reasoned that the assailants abused the boy on the bus; however, the bus was used as a means of transportation. Further, the physical abuse the boy suffered was not typically contemplated by the policyholders to a car insurance policy. Therefore, because the conduct was “foreign” to the school bus’s purposes, the court found no nexus existed.

We trust our doctors and health care providers to keep us safe—especially when we’re at our most vulnerable and not feeling well. This, however, is not always the case, and instances of Virginia medical malpractice can have serious consequences. When such incidents cause injuries or even death, those who are responsible must be held accountable.

In a recent Virginia Supreme Court opinion, the court had to consider the merits of a wrongful death claim. The deceased was admitted to a local Virginia hospital because she was experiencing nausea, vomiting, and abdominal pain. After an abdominal CT scan, multiple doctors examined the decedent’s results and eventually sent her home. Later in Kentucky, she was admitted to the hospital again when she experienced severe abdominal pain. The doctors at this hospital performed an initial surgery, which was followed by multiple other surgeries to treat other stomach and abdominal issues in the following two months. Eventually, the decedent died “as a result of complications directly related and attributable” to the initial surgery she underwent in Kentucky.

Following the decedent’s passing, the executor of her estate brought claims in both states. In Virginia, he brought wrongful death claims against the doctors who initially treated the deceased and discharged her. The executor of the decedent’s estate argued that the Virginia hospital and the physicians who treated the deceased were negligent and their failure to identify and treat the deceased’s abdominal issues was a proximate cause of her death. The lower court dismissed the executor’s claims, finding that because he received a settlement in Kentucky, he was ineligible to receive damages from a wrongful death claim in Virginia.

During the discovery phase of a Virginia personal injury case, each of the parties can request that certain evidence is provided by the opposing side. As a general rule, parties must provide evidence when it is requested and ordered by the court, even if the evidence at issue is harmful to the case of the party who possesses it.

Given this reality, it may be tempting for a party who is in possession of adverse evidence to alter or destroy it. The legal term for the destruction or alteration of evidence is spoliation. Of course, the spoliation of evidence is prohibited, and parties who are found to have spoliated may face serious sanctions. One common sanction is an instruction to the jury allowing the jurors to take an adverse inference from the missing evidence. A recent case discusses this issue in detail.

The Facts of the Case

According to the court’s opinion, the plaintiff was injured in a slip-and-fall accident while a resident in the defendant nursing home. Evidently, the plaintiff’s fall was caught on video, which the nursing home administration was able to view several times. However, the nursing home did not preserve the video, and eventually, it was recorded over.

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When someone is injured due to the alleged negligence of another, the injured party may be able to pursue a claim for compensation under the legal theory of negligence. To succeed in a negligence claim, a plaintiff must be able to establish four elements: duty, breach, causation, and damages.

The “duty” element is easily met in many Virginia personal injury cases, especially those involving injuries that occurred as a result of a car accident. This is because all Virginia motorists have a general duty to safely operate their vehicle within the confines of the law. However, in other contexts, a plaintiff must present evidence establishing that the defendant owed the plaintiff a duty of care.

A recent federal appellate opinion illustrates the concept of a legal duty. In that case, the plaintiff was a truck driver who was injured when another employee allegedly ran over his foot while loading the plaintiff’s truck with a forklift. The forklift, which was owned by the plaintiff’s employer, did not have a back-up alarm. The plaintiff’s employer had contracted with the defendant maintenance company to perform all necessary maintenance on the machine, including preventative maintenance.

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After a Virginia motor vehicle accident, those who were injured in the collision can pursue a claim for compensation against the parties whom they believe were responsible for causing the accident. In almost all cases, Virginia car accident lawsuits are filed against another motorist and are defended by the motorist’s insurance company. However, Virginia accident victims should not assume that the only liable party is the other driver; it may be that the driver’s employer is also responsible for any injuries.

Under the doctrine of respondeat superior, a Virginia accident victim can pursue a claim for compensation against a negligent motorist’s employer. To establish such a claim, a plaintiff must show that 1.) there was a “master and servant” relationship between the motorist and the employer, 2.) that the employee was acting within the scope of his employment at the time of the accident, and 3.) the employee was in the process of carrying out his employer’s business. A recent state appellate decision illustrates the type of scenario where employer liability may be appropriate.

The Facts of the Case

According to the court’s opinion, the plaintiff was injured while he was riding as a passenger in a pick-up truck that was being driven by his father. The accident was allegedly the plaintiff’s father’s fault and occurred while the two were driving to a family reunion. The truck that the plaintiff’s father was driving was provided by his employer, the defendant.

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Virginia is one of only a few states that still applies the common-law doctrine of contributory negligence. Under a contributory negligence analysis, a plaintiff who bears any responsibility for the accident resulting in their injuries is precluded from recovering from any other at-fault party. Thus, in any Virginia personal injury lawsuit, a plaintiff who is found to be just 5% at fault for an accident can be barred from recovering for their injuries against a party who was 95% at fault, as an example.

As noted above, most other states have shifted away from the contributory negligence doctrine and implemented a comparative fault rule. Under a comparative fault analysis, an at-fault plaintiff will be permitted to recover for their injuries regardless of their own fault. However, a plaintiff’s total recovery amount will be reduced by their percentage of fault. Some jurisdictions apply a “pure” comparative fault rule, allowing a plaintiff to pursue a claim regardless of their own percentage of fault; however, most states use a “modified” rule, allowing only those plaintiffs to recover who are less than 50% at fault.

Virginia’s contributory negligence law applies in almost all negligence cases, and often leads to relatively harsh results. However, contributory negligence is especially difficult to overcome (although far from impossible) in Virginia premises liability cases. This is because a defendant in a Virginia slip-and-fall case may be able to defeat a plaintiff’s claim by showing they were even the slightest bit at fault. For example, this may be done by arguing that a plaintiff was not looking out where they were going or by not wearing appropriate footwear.

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Recently, a state appellate court issued an opinion in a Virginia car accident case discussing the state’s “dead man statute.” The dead man statute, contained in Code of Virginia section 8.01-397, provides guidance on how courts should handle cases where one party is incapacitated or has died since the events giving rise to the case.

The Facts of the Case

According to the court’s opinion, the plaintiff claimed he was injured when he was rear-ended by the defendant. The plaintiff filed a personal injury lawsuit against the defendant, but before the case reached trial the defendant died. The plaintiff’s case proceeded against the defendant’s estate.

Evidently, the defendant conceded liability for the accident, and the only issue for the jury to decide was whether the plaintiff was entitled to any damages and, if so, what amount. The plaintiff, who had been involved in several previous car accidents and had a lengthy history of pre-existing medical conditions, testified that the defendant was going at least 20 miles per hour at the time. The plaintiff sought $500,000 in damages, claiming that as a result of the accident she required an additional back surgery.

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Recently, a state appellate court issued an opinion in a personal injury case requiring the court to determine if a jury’s $3 million verdict in favor of the plaintiff was proper given the evidence presented at trial. After reviewing the evidence as well as the defendants’ specific claims, the court affirmed the judgment. The case is important to Virginia personal injury plaintiffs because it illustrates several issues that frequently arise in Virginia truck accident cases.

The Facts of the Case

According to the court’s opinion, the plaintiff was driving a van with four passengers inside. As the plaintiff approached a construction zone, he noticed that there was a large construction vehicle pulled off to the right side of the road. The plaintiff realized as he got closer that the vehicle was actually in his lane. Thus, the plaintiff crossed over the double-yellow line to overtake the vehicle. However, as the plaintiff was passing it, the vehicle made a sharp left turn, colliding with the plaintiff’s van. The plaintiff was seriously injured as a result of the accident and filed a personal injury lawsuit against the driver of the construction vehicle, as well as that driver’s employer.

After the accident, the plaintiff requested that the defendants preserve the construction vehicle, and the defendants agreed. However, when the plaintiff arrived to inspect the vehicle, parts of the vehicle had already been removed and were in the process of being repaired.

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