Defenses to Personal Injury Claims in Virginia

December 6, 2013 in Articles, Personal Injury Articles | MARTIN WREN, P.C. | LEAVE A COMMENT
Attorney Robert Byrne

Attorney Robert Byrne

Virginia Personal Injury Lawyers

Defenses to Personal Injury Claims in Virginia

As a follow-up to the article, Do I Have a Personal Injury Case?, we’ll next examine the common defenses to personal injury claims in Virginia.  Generally speaking, there are two categories of defenses that exist for personal injury cases. The first category involves legal or “affirmative” defenses, such as contributory negligence, assumption of the risk, and the statute of limitations, any of which, if proven, may prevent an injured party from recovering any compensation for their injuries.  The second category of defenses includes numerous factual defenses that, if proven, will reduce the value of a personal injury claim.  We’ll take a closer legal at both categories of defenses in this article.


Contributory Negligence

Virginia is one of a handful of states that recognizes the defense of contributory negligence.  In a nutshell, contributory negligence applies when “the plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances.”  Rascher v. Friend, 279 Va. 370, 375 (2010).  Put another way, a plaintiff who acts carelessly or unreasonably and helps cause their injury will be barred from recovering money damages.  Virginia’s use of this defense can have harsh consequences for an injured party – a plaintiff who is determined to be just 1% contributorily negligent will be barred from obtaining any compensation for his or her injuries.

For an example of contributory negligence, let’s say that a speeding driver collides with a pedestrian who was crossing the street.  Based on the driver’s breach of the duty to drive within the posted speed limit, the pedestrian will likely be able to claim that the driver’s breach was the proximate cause of the pedestrian’s injuries.  But if the pedestrian “jay walked,” i.e., did not cross the street at an appropriate crosswalk, it is likely that the pedestrian engaged in conduct that contributed to their injuries.  Because crossing the street in an inappropriate location would not be the conduct of a reasonable person, it is possible that a jury could find the pedestrian to be contributorily negligent for their injuries.  And under the contributory negligence defense in Virginia, that jury finding would prevent the pedestrian from recovering for their injuries.

Assumption of the risk

Virginia law also recognizes the defense of assumption of the risk in personal injury actions.  Assumption of the risk occurs when an individual fully understands “the nature and extent of a known danger and voluntarily exposes herself to that danger.”  Thurmond v. Prince William Prof’l Baseball Club, 265 Va. 59, 64 (2003).   In plain English, that means someone who recognizes and understands a danger cannot engage in that danger and then seek money damages when that danger causes an injury.

To explain with an example, if a pedestrian is tackled and injured by a stranger on a sidewalk while the pedestrian is minding their own business, the pedestrian will most likely have an injury claim against the stranger.  If, on the other hand, someone is injured when they are tackled in a full-contact football game, that individual likely assumed the risk of injuries that occur within the normal course of playing in a football game.  In that case, the injured party’s claim would be barred because they assumed the risk of injury while playing football.

Statute of Limitations and Notice Periods

A statute of limitations is a statute that states how long a party has to file a lawsuit or forever lose the right to pursue a lawsuit. That means the claim must be settled or else a lawsuit filed before the statute of limitations expires, or else the legal claim will be forever barred.  Virginia personal injury claims are generally subject to a two-year statute of limitations period.   In addition, some claims, such as injury claims against a state agency under the Virginia Tort Claims Act, have strict notice periods that must be satisfied before a claim can be brought.  A plaintiff’s failure to follow the notice and filing deadlines could, under some circumstances, bar the right to bring an injury claim.

Failure to Mitigate

Parties who have been injured due to another’s fault have a duty to “mitigate” their injuries.  Mitigation is a legal defense that, in legalese, states that an injured individual “is bound to exercise reasonable care and diligence to avoid loss or to minimize or lessen the resulting damage, and to the extent that his damages are the result of his active and unreasonable enhancement thereof or are due to his failure to exercise such care and diligence, he cannot recover.”  Monahan v. Obici Medical Mgt. Servs., Inc., 271 Va. 621 (2006).  That means, in plain English, that an injured plaintiff must take steps to reduce the severity or effect of the harm they suffered, and they will not be able to recover money for injuries that result or are worsened due to their failure to mitigate.


An insurance company representing a defendant will likely raise a number of additional defenses that attempt to reduce the value of the injured person’s case.  Such common factual defenses can be incredibly frustrating because they personally attack the plaintiff’s credibility, by claiming such things as:

–          The injured party had a pre-existing injury, which is an injury that occurred before the accident from some other cause not related to the defendant;

–          The plaintiff overtreated (received too much medical care), or undertreated (received too little medical care) in light of the level of injuries claimed;

–          The injured plaintiff waited too long to get medical care or had unreasonable or unexplained breaks in his or her treatment;

–          The plaintiff did not follow his or her doctors’ orders and failed to properly rehabilitate  the injuries;

–          The plaintiff’s post-accident conduct and behavior is inconsistent with having suffered the injury for which he or she is seeking compensation;

–          The plaintiff is malingering, or exaggerating, the severity of their injuries.

If you’ve been injured in an accident, it is important to consult with an attorney about your injuries even if it appears that your claim is barred by a legal defense or one of the mentioned “factual” defenses.   Determining whether any of these defenses actually applies can be complicated and there may be exceptions to these defenses, so it helps to get assistance of an experienced Virginia personal injury lawyer.

For a consultation with an experienced injury attorney, please contact Robert E. Byrne, Jr. of MartinWren, P.C., toll free, at 855-812-9550, or, if you prefer, contact him by email at [email protected].

Contact Our Virginia Lawyers

We serve clients throughout Virginia — from Charlottesville and Central Virginia to metropolitan Richmond; Harrisonburg and the Shenandoah Valley to Roanoke; and the cities of Hampton Roads to the Northern Virginia cities of  Fairfax, Alexandria and Arlington.

To speak with one of our attorneys, please call us at (434) 817-3100.

Our Virginia personal injury lawyers at MartinWren, P.C. have a statewide practice and offer free consultations at a time and location that is convenient for you.  We will gladly meet with you at your home or at the hospital, even on nights and weekends.


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