This surprises many people who mistakenly believe that all claims are governed by a uniform set of laws. Not so. Each state is different and may follow very different legal standards. In fact, your car accident personal injury claim could be worth $0 in Virginia, whereas it could be worth thousands in West Virginia. The difference? Virginia is a contributory negligence state while West Virginia is a comparative negligence state. Below is an overview of both legal standards.
Comparative Negligence – The Majority Standard
The vast majority of states have some form of comparative negligence. This legal standard allows a jury to weigh the actions or failures of both parties (i.e. the injured plaintiff and defendant). For example, let’s say you are driving on Interstate 95 in New York (another comparative negligence state) and are speeding in excess of 90 miles per hour. However, you are rear-ended by a drunk driver who failed to apply their brakes. Both you and the other driver were negligent. When comparative negligence is taken into account, a jury can award a judgment based on an apportionment of fault. A jury could, for example, find that you were 30 percent negligence and the other driver 70 percent negligent. If the jury awards you $100,000 in damages, they could then reduce the award by your 30 percent of comparative fault and only award you $70,000 in damages.
Contributory Negligence – The Minority Standard
Only five states in the entire country continue to follow the contributory negligence standard including Alabama, the District of Columbia, Maryland, North Carolina and Virginia. Contributory negligence is a much harsher standards and extremely unfair for injured plaintiffs. It stands for the principle that if an injured party contributed to causing the accident, even if only by 1 percent, the injured party may be denied any financial compensation.
So, for example, if you are crossing the street when the light is flashing red and are hit by a speeding driver who is also texting on their cell phone, you may actually be denied any financial restitution for your medical bills, lost wages, and pain and suffering, if a jury determines you were contributorily negligent for crossing the street when the light was flashing red.
The personal injury attorneys with Shapiro, Appleton & Duffan primarily represent clients in the contributory negligence states of North Carolina and Virginia (we are also licensed in South Carolina, Kentucky, West Virginia and Washington, D.C.). So, we are quite familiar with insurance adjusters and defense lawyers attempting to reduce or deny legitimate personal injury claims by seeking shelter under the contributory negligence standard. We believe Virginia, North Carolina, and the other contributory negligence states should move toward a more reasonable and equitable comparative negligence system, but remain fully prepared to litigate personal injury cases, despite the arbitrary and unfair contributory negligence standard.
Richard N. Shapiro is a partner at Shapiro, Appleton & Duffan in Virginia Beach, Va. He is certified as a Civil Trial Advocate by the National Board of Trial Advocacy, a prolific inventor and product designer, and has litigated wrongful death, trucking, faulty products, railroad and medical negligence claims throughout the Eastern United States.
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Company Name: Shapiro, Appleton and Duffan
Contact Person: Richard
Address:1294 Diamond Springs Rd
City: Virginia Beach
Country: United States