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In 2013, a husband and father of three was struck by a train while walking adjacent to train tracks owned by CSX Transportation, killing him instantly. Although his wife acknowledged that her husband was partially responsible, she filed a wrongful death claim alleging that CSX, the train’s conductor, and the train’s engineer were negligent for not blowing the horn or otherwise alerting her husband of imminent danger.

The defendants raised a contributory negligence defense, claiming the plaintiff failed to use a relevant degree of care for his own safety, thereby completely barring the plaintiff from recovery. The trial court dismissed the case. The plaintiff appealed arguing that the “last clear chance doctrine” applied, and on March 9, the Virginia Supreme Court remanded the case back to the trial court.

Although most states follow some form of “comparative negligence,” where the plaintiff’s damages are reduced by their percentage of liability, Virginia is one of few states that still has contributory negligence. Contributory negligence means that if you contribute to your injuries at all, you can’t recover, even if you are only 1% negligent. There is, however, one exception in Virginia law. A negligent victim can still collect damages if the defendant had the “last clear chance” to avoid the accident.

The elements of proof for the last clear chance doctrine are:

  • The plaintiff placed themselves in a situation of risk or danger through their own negligence.
  • The defendant saw the plaintiff and realized or should have realized that the plaintiff was in trouble.
  • The defendant failed to avoid the danger.
  • The plaintiff was injured as a result of the defendant’s failure.
  • The defendant had the “last chance” to avoid the injury, even if the plaintiff was partly liable.

Thus, even if the deceased man was walking near the tracks without looking, it is possible that the train conductor and engineer could and should have seen and avoided him.

Lawsuits involving contributory negligence are frequently very complicated, especially if the “last clear chance” doctrine is also involved. It requires plaintiffs to basically jump through hoops to have any hope of recovery.

On the contrary, in a comparative negligence state, a person can be compensated even if they “contributed” in some way to their own misfortune so long as there is at least one other party also responsible for the accident. A jury would be tasked with determining what percentage of negligence each party is responsible for. The jury will determine the total damage, how much fault, if any that CSX contributed, and an award against CSX, if found negligent, would be limited to the percentage of the total award that is allocated to the railroad. Again, in this case, the plaintiff acknowledged that her husband was partially responsible. If the accident occurred in any state other than Virginia, North Carolina, Alabama, Maryland, or the District of Columbia, the jury would hear the evidence and determine the percentage of responsibility of everyone involved.

Contributory negligence often bars victims from seeking legal representation because it could take an attorney years working on case and lose everything at trial simply because a jury felt the plaintiff may have played some very small part in causing the accident. Citizens should not have to give up their rights. Virginia, and the other contributory negligence, states need to catch up to the rest of the country and get rid of this draconian system.

If you live in a contributory negligence state write your elected officials and demand a change to this harsh and often unfair law.

Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.

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