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Richmond Trial Victory by Successfully Overcoming Contributory Negligence

By Josh Silverman on April 06, 2014


Virginia is one of only a few states that sticks to the outdated and harsh rule that if the plaintiff contributed in even a slight way to an accident the plaintiff recovers nothing.  Even if the defendant bears the majority of the blame the plaintiff is typically left empty handed.  However, there is an important exception called the last clear chance doctrine. Here is how we successfully used the last clear chance doctrine to prevail in a Richmond trial last month:

I was retained to represent a Marine veteran who was biking to a library when he was hit in a cross walk by a driver making a right on red.  He pulled partly into the cross-walk to get a better view of traffic.  At the same time a driver made a right on red and hit him.  She knocked him to the ground and he had several months of treatment for his injuries.

The insurance company refused to make any offers on the case claiming the plaintiff was contributorily negligent.  At trial we persuaded the Richmond judge that the defendant had the last clear chance to avoid the accident and therefore could not defend the case on the grounds that the bicyclist was contributorily negligent.  If she was looking where she was going she could have avoided hitting him.  As he made a good recovery from his bicycle accident injuries, we asked for $25,000 which seemed fair.

THE VIRGINIA STATE BAR REQUIRES ME TO REMIND YOU THAT EVERY CASE IS UNIQUE AND THE RESULTS IN ANY PARTICULAR CASE DO NOT PREDICT THE RESULTS WE MAY OBTAIN IN YOUR CASE, BUT YOU ALREADY KNEW THAT ANYWAY!

With that disclaimer, I can report that the judge awarded $25,000 plus costs and interest.  To avoid an appeal we negotiated a post-trial settlement where we waived interest charges.

Bicycle verse car accidents are increasing in Virginia with several high profile tragedies. It is important to remember that bicyclists have the same rights to use the roadways (except interstates) as automobiles.  

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