Comparative and Contributory Negligence and DUI

In most jurisdictions, when a drunk driver causes a crash the law is simple: An intoxicated driver is negligent and can be held responsible for the crash, both in criminal court and in civil court. But in some places, including Virginia where Priale & Racine practices, the victim might be entitled to nothing at all. How can that happen? The cause is a different standard for negligence claims. We’ll explain.

How Comparative Negligence Works

Most states settle accident damage claims using some kind of comparative negligence. That means they adjust damage award amounts based on whether or not the victim contributed to the accident. For example, if a pedestrian is found to have contributed 25 percent of the fault to an accident by crossing a street negligently, but was struck by a negligent driver, the driver would only be responsible for 75 percent of any damage award. The specifics vary somewhat from state to state, with some not awarding damages if the plaintiff is shown to be 50 percent or more responsible, but the principle is the same.

How Contributory Negligence Works

A handful of states, including Virginia, apply a different rule, known as contributory negligence. While this affects most negligence claims, it can be extremely important when a claim involves DUI.

Instead of subtracting the plaintiff’s responsibility from an award, as with comparative negligence, states that use pure contributory negligence absolve the defendant of all responsibility if the plaintiff is found to have any responsibility at all—even 1 percent or less of the total—for an injury. In Virginia, the language used by the courts states that “If plaintiff contributes to his damages, he will be barred from all recovery.”

The Effect on DUI Cases in Virginia

The pure contributory negligence system has a harsh effect on negligence claims of all kinds. In the example above, if the pedestrian had crossed in the middle of the block without looking, and thus was partly responsible for being struck, she would not be entitled to any damages, even if the driver was drunk, speeding, texting, and going the wrong way on a one-way street—all at the same time.

In DUI cases, contributory negligence can cause especially unfair results, and it’s why many claims against DUI drivers don’t get very far. Regardless of any actions the DUI driver took, if the victim can be assigned even the smallest amount of blame, he or she can be completely denied any damages. That means, for example, that if a drunk plows into another car that’s taking a left turn, it might be determined that the victim had some fault because left-turning vehicles must always yield the right-of-way.

Or, if the victim had a drink before driving, even if his or her BAC was close to zero, it might be determined that this contributed to the accident, qualifying as contributory negligence and releasing the other driver from all responsibility.

The Last Clear Chance

Victims have one final recourse, even when it’s been ruled that they contributed in some way to an accident. That’s something called the “last clear chance doctrine.” Even if the plaintiff put her or himself in harm’s way, the defendant may still be responsible if the plaintiff was either unaware of the danger or unable to remove her or himself. If one of those conditions is met and the defendant was aware of the danger (or should have been) and had a chance to avoid the accident but didn’t, then the defendant had the “last clear chance” to prevent the accident. In this case, the plaintiff might be able to win a claim.

The Critical Point

Because of contributory negligence, potential plaintiffs have no margin for error. No one sets out to be the victim of a DUI driver, but when it happens, you want to have the best chance of recovering damages to cover medical bills and other expenses. The only real way to safeguard this chance in Virginia (and the other states with this standard) is to always be on your best behavior. As a driver, don’t take chances: drive safely, drive defensively, and don’t ever drink and drive.

It may seem like an unnecessary effort because the chance of it happening to you is small, but in some recent years, Virginia has seen more than 5,000 serious injuries and more than 250 deaths from crashes involving alcohol. You don’t want to be a victim who is declared partly responsible for the accident that seriously injured you. That small BAC level you have because of one beer three hours ago could be enough to deny you any recourse. Your best defense is a zero BAC.

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