Virginia is one of a few states that follow the rule of pure contributory negligence in personal injury cases. A plaintiff cannot recover damages if he or she shares in any fault for the accident. This is different from states that follow comparative negligence, by which a plaintiff’s damages will simply be reduced by their share of fault. While Virginia’s rule can make it difficult for an accident victim to recover damages where fault is in doubt, there is an important exception, known as the last clear chance doctrine.

A party who was partially at fault for an accident may be able to recover damages from another party who had the last clear chance to avoid the accident. To prove this was the case, a plaintiff must show:

• There was an immediate threat of injury that the defendant should have been aware of.
• The defendant had the last and best opportunity to avoid the injury.
• A reasonably prudent person would have taken action the opportunity to avoid the injury.
• The defendant’s failure to take action was the direct cause of the plaintiff’s injury.

Suppose, for example, a car makes a left turn at an intersection where left turns are prohibited. Though the roadway appears to be clear, a speeding car coming from the other direction hits the turning car, injuring its driver. The first driver, despite being contributorily negligent, might be able to recover damages as long as it is proved that the second driver saw the turning vehicle in time to swerve or stop in order to avoid the accident.

The last clear chance doctrine can cut both ways. If the plaintiff as well as the defendant had an opportunity to avoid the accident, the defendant may assert that the plaintiff's non-avoidance was the proximate cause, which would bar recovery under the contributory negligence rule.

Whether or not a party had the last clear chance to avoid an accident is a question of fact for the jury in a personal injury lawsuit. The party asserting the doctrine bears the burden of proof by a preponderance of the evidence.

Ernest Law Group, PLC in Virginia Beach represents accident victims in personal injury cases throughout the state. Call us at 757-289-2499 or contact us online to schedule a free initial consultation.