When you’ve suffered injuries in an accident, you may wonder if you should make a personal injury claim. The answer depends on a number of different factors. In some states, including Virginia, a basic question is whether you can claim personal injury if the accident was your fault.
Personal Injury Law in Virginia
The law and rules that apply to your personal injury claim are determined by where the accident occurred. That is true regardless of what type of accident resulted in your injury, whether it was a car accident, defective product, unsafe property, or even a dog bite.
Each state has its own personal injury laws. The law is very different from state to state. If your injury occurred in Virginia, our state law applies. Under those laws, there are two sets of circumstances that factor into whether you can claim personal injury: The first is the conduct of the other individual(s) involved in the accident. The second is your own conduct.
To recover for a personal injury in Virginia, you first must establish that another person was at fault in causing the accident. The legal standard is referred to as negligence. The definition of negligence is the “failure to use the ordinary care that a reasonable person would use.”
Negligence can be established in different ways. For example, in a car accident, if a driver violates a traffic law — such as running a red light, speeding, or texting while driving — and that violation causes an accident, the traffic violation is evidence of negligence. Proof of negligence can arise from a wide range of different circumstances in the various types of personal injury cases.
The difficulty in many cases arises when the second element of establishing personal injury — your own conduct — is addressed. Virginia applies a standard to your conduct called contributory negligence: If your own conduct contributed to your injuries in any way — even if you were at fault 1% and another person was 99% at fault — Virginia law does not permit you to make a personal injury claim against the other person.
Only a handful of states, including the neighboring jurisdictions of North Carolina, Maryland, and the District of Columbia, apply this standard, which is sometimes referred to as pure contributory negligence. This standard is very different from the standard applied in many other states, which use a standard referred to as comparative negligence.
In states with a comparative negligence standard, responsibility for an accident is allocated according to the degree of fault of the people involved in the accident. The amount of compensation is based on the extent of fault. In contrast, fault and compensation are not allocated in Virginia under our contributory negligence legal standard.
To determine whether your conduct constitutes contributory negligence, the legal standard is whether you used the ordinary care that a reasonable person would use — the same standard applies to you and the other individual(s) involved in the accident.
How Is Fault Determined in a Personal Injury Claim?
The determination of fault is based on the facts and circumstances of the accident. After the facts are analyzed, the negligence standard is applied to determine legal responsibility for the accident. The analysis includes the conduct of both (or all) people involved in the accident.
Sometimes the cause of an accident is obvious — but often it is not. If the circumstances of the accident are complicated, it can be very difficult to determine who was at fault. There can also be different opinions about fault in an accident.
In any personal injury claim, the attorney for the other person (who usually represents that person’s insurance company) often will try to argue that the injured person making the claim was partially at fault in order to avoid responsibility for the injuries. Sometimes, the two parties to the claim will “agree to disagree” and settle the claim. Other times, if the parties cannot resolve the issue of fault, a personal injury lawsuit will go to trial, and a jury will decide the issue of fault and determine who was responsible for the accident, as well as what compensation will be paid.
Analyzing the facts of an accident can be a complex task. Sometimes completing the analysis even requires the opinion of experts. When you’ve been injured in an accident, relying on your own analysis can be a mistake. Your own perspective about the accident is just one factor. The other individuals involved, uninvolved witnesses, and the police officer may very well all have different opinions about what occurred.
If you’ve been seriously injured in an accident, it’s best not to rely on your own recollection in determining who was at fault. Consulting an experienced personal injury attorney who has the skills and experience to fully investigate and analyze your accident is the best way to find out if you might have a personal injury claim.
Who Will Pay My Medical Bills If the Accident Was My Fault?
Regardless of who is at fault for an accident, your medical expenses may be covered by your own car insurance or your health insurance. If you were injured on the job, you may also be covered by workers’ compensation insurance.
If your injuries from an accident are relatively minor, you recover fairly quickly, and your medical expenses are all paid by your insurance, there may be no reason to file a personal injury claim. In those circumstances, you likely would not recover any additional compensation by filing a personal claim.
However, if your injuries are significant, you have permanent injuries or disability from the accident, and your future ability to work has been affected, you may be able to recover additional compensation by filing a personal injury claim. You should not rely on your own assessment of who was at fault in the accident in deciding whether to talk with an attorney.
Many personal injury attorneys do not charge for an initial consultation, so there is no good reason not to get a professional legal opinion about whether you can make a personal injury claim. It’s advisable to talk with an attorney even before you contact the other person’s insurance company, especially if it is not clear who was at fault in the accident. Talking with the insurance company could result in harming your case, especially if you make statements that affect the legal determinations of negligence and contributory negligence.
Talk With a Respected Virginia Beach Personal Injury Attorney
If you or a loved one suffered catastrophic injuries in a Virginia accident that may have been another person’s fault — or if you’ve lost a loved one in an accident — it’s always in your best interest to talk with a personal injury attorney. Experienced Virginia Beach car accident lawyer Jeff Brooke is dedicated to helping clients and their families recover the compensation they deserve. Contact us by phone at (757) 785-0837 or by using our online contact form.
Jeff Brooke is a personal injury attorney devoted to helping individuals who have suffered serious and catastrophic injuries or lost a loved one as a result of someone else’s negligent and careless actions. The Jeff Brooke Team serves all of southeastern Virginia. The firm helps clients in the Greater Tidewater and Greater Hampton Roads areas, including in Virginia Beach, Norfolk, Portsmouth, Chesapeake, and Chesterfield. The Jeff Brooke Team also handles cases in northeastern North Carolina, including the Outer Banks.