Minor accident today

[Arlingtonrider]

Thanks. That was my understanding as well – I was hoping to be wrong.

[Mark Blacknell]

From a 2007 VA Supreme Ct. decision (Estate of Moses v. Sw Va Transit Manag., 643 S.E.2d 156 (Va., 2007)) involving a plaintiff who crossed a street outside of a crosswalk, and was struck by a bus:

“We have stated the principles of law that define contributory negligence and its determination on many occasions. “Contributory negligence is an affirmative defense that must be proved according to an objective standard whether the plaintiff failed to act as a reasonable person would have acted for his own safety under the circumstances.” Jenkins, 269 Va. at 388, 611 S.E.2d at 407; see also Sawyer v. Comerci, 264 Va. 68, 74, 563 S.E.2d 748, 752 (2002); Ponirakis v. Choi, 262 Va. 119, 124, 546 S.E.2d 707, 710 (2001); Artrip v. E.E. Berry Equip. Co., 240 Va. 354, 358, 397 S.E.2d 821, 823-24 (1990). “The essential concept of contributory negligence is carelessness.” Jenkins, 269 Va. at 388, 611 S.E.2d at 407; Sawyer, 264 Va. at 74, 563 S.E.2d at 752; Ponirakis, 262 Va. at 124, 546 S.E.2d at 711; Artrip, 240 Va. at 358, 397 S.E.2d at 823-24.

“The issue whether a plaintiff is guilty of contributory negligence is ordinarily a question of fact to be decided by the fact finder.” Jenkins, 269 Va. at 389, 611 S.E.2d at 407; see also Sawyer, 264 Va. at 74, 563 S.E.2d at 752; Hot Shot Express, Inc. v. Brooks, 264 Va. 126, 135, 563 S.E.2d 764, 769 (2002); Ponirakis, 262 Va. at 125, 546 S.E.2d at 711. “The issue becomes one of law for the circuit court to decide only when reasonable minds could not differ about what conclusion could be drawn from the evidence.” Jenkins, 269 Va. at 389, 611 S.E.2d at 407; see also Hot Shot Express, 264 Va. at 135, 563 S.E.2d at 769; Love v. Schmidt, 239 Va. 357, 360, 389 S.E.2d 707, 709 (1990).

Contributory negligence consists of the independent elements of negligence and proximate causation. See Karim v. Grover, 235 Va. 550, 552, 369 S.E.2d 185, 186 (1988). Proof of a plaintiff’s negligence alone is insufficient to establish contributory negligence, even if the plaintiff is negligent per se, as we explained in Karim:

When a defendant relies upon contributory negligence as a defense, he has the burden of proving by the greater weight of the evidence not only that the plaintiff was negligent, Burks v. Webb, Administratrix, 199 Va. 296, 307, 99 S.E.2d 629, 638 (1957), but also “that his negligence was a proximate cause, a direct, efficient contributing cause of the accident,” Whitfield v. Dunn, 202 Va. 472, 477, 117 S.E.2d 710, 714 (1961); accord Powell v. Virginian Railway Co., 187 Va. 384, 390-91, 46 S.E.2d 429, 432 (1948). Thus, while the violation of a statute regulating traffic constitutes negligence,

it does not necessarily follow that such negligence will as a matter of law prevent a recovery by the plaintiff. There must be a causal connection between the violation of the statute and the injury, otherwise the violation is immaterial; and unless it is shown that the plaintiff’s violation was a proximate or concurring cause which contributed directly to his injury, he is not thereby barred from a recovery.

Powell, 187 Va. at 390, 46 S.E.2d at 432; accord Bray v. Boston, etc., Corp., 161 Va. 686, 692, 172 S.E. 296, 298 (1934); Lavenstein v. Maile, 146 Va. 789, 801, 132 S.E. 844, 848 (1926).

Ordinarily, the issue of proximate cause is a question of fact for resolution by a jury. It becomes a question of law for decision by a court only when reasonable minds cannot differ about the result. Litchford v. Hancock, 232 Va. 496, 499, 352 S.E.2d 335, 337 (1987).

[CCrew]

And another where a cyclist ran into a minivan and the driver of the minivan won on contributory negligence and it was subsequently overturned:

http://www.courts.state.va.us/opinions/opnscvwp/1090193.pdf

Clearly it can go in a lot of directions when it goes to court. What we’ve not seen in any of these cases however is what was the ultimate outcome when tried again by the lower courts.

[MCL1981]

Both of which are also nothing at all even closely similar to the OP’s accident.

[CCrew]

@MCL1981 10024 wrote:

Both of which are also nothing at all even closely similar to the OP’s accident.

Nobody said they were. They were just examples as to how contributory negligence plays out.

[Author]

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