A piercing headache wakes you at night. Simple tasks now require careful planning as you work around the cognitive fog caused by your traumatic brain injury (TBI). To make matters worse, the insurance company claims you were partly at fault for the truck accident that caused your injury.
For Richmond truck accident victims dealing with TBIs, legal recovery can be hindered by the strict contributory negligence rule. Our top-rated Virginia truck accident lawyer understands the challenges brain injury survivors face when a defendant attempts to place even minimal blame on them to avoid liability.
Virginia Contributory Negligence Standard Explained
Virginia remains one of the few states that follows the pure contributory negligence doctrine. This rule can completely bar an injured person from recovering damages if they are found even 1% at fault for the accident that caused their injuries. For truck accident victims with traumatic brain injuries, this legal standard creates significant hurdles.
Virginia’s contributory negligence law differs dramatically from most states, which follow some form of comparative negligence. Under comparative negligence standards, the courts reduce the recovery of damages by the percentage of fault rather than eliminating it entirely. For example, if you have $100,000 in total damages and are 25% at fault, you may recover up to $75,000 in settlement.
States like Kentucky observe the pure comparative negligence doctrine, which allows injured parties to recover damages reduced by their percentage of fault. States like North Carolina and Tennessee follow a modified comparative negligence doctrine, which bars recovery only if the plaintiff is more than 50% or 51% at fault.
How Insurance Companies Use Contributory Negligence Against TBI Victims
Insurance companies defending truck crash cases look aggressively for any evidence suggesting the injured person might have contributed to the accident. Common arguments include driver inattention, traffic violations, failure to take evasive action, or pre-existing conditions.
Strategies to Counter Contributory Negligence Arguments
Given the high stakes in TBI cases, working with a knowledgeable truck accident lawyer who understands both traumatic brain injuries and the state's contributory negligence rule is essential. When facing contributory negligence claims by the defendant, your Richmond brain injury lawyer may take several strategic approaches to help protect your right to compensation.
Thoroughly Investigating the Accident Scene
A detailed investigation is vital to establishing that you were not at fault. This may include:
- Accident reconstruction. Professional truck accident reconstructionists can use physical evidence, truck data logs, witness statements, and scientific principles to demonstrate exactly how the accident occurred and who was truly at fault.
- Black box data analysis. A Virginia TBI lawyer can obtain and analyze electronic control module (ECM) data from the truck’s “black box” to prove the truck driver's negligence.
- Video evidence. Traffic cameras, business surveillance footage, or dashcam recordings may provide objective evidence of what happened.
Applying the Last Clear Chance Doctrine
Virginia recognizes an important exception to contributory negligence called the "last clear chance" doctrine. This principle holds that even if you were initially negligent, you may still recover damages if the defendant had the last clear opportunity to avoid the accident but failed to do so.
To successfully apply this doctrine in a truck accident case, you must establish that:
- You were in a position of peril
- The truck driver knew or should have known of your peril
- The truck driver had a reasonable opportunity to avoid the accident
For example, if evidence shows a truck driver was texting while approaching stopped traffic and failed to brake despite having ample time to do so, this doctrine might apply even if you had made a minor driving error.
Focusing on Federal Regulations and Industry Standards
Commercial trucks must comply with strict federal regulations and industry standards. A violation of these standards can help establish the truck driver's or company's negligence while minimizing focus on any potential negligence on your part.
- Hours of service violations. Federal regulations limit how long truck drivers can operate without rest.
- Maintenance requirements. Failure to properly maintain critical components can establish clear negligence.
- Loading standards. Improper loading can cause truck rollovers, jackknifing, or cargo spills.
If evidence can demonstrate that the trucking company falsified maintenance records and the driver exceeded federal hours-of-service limits, this could establish clear negligence that overcomes the defendant’s arguments about the plaintiff’s speed.
Building a Strong Medical Case for TBI Claims
Since traumatic brain injuries often involve substantial economic and noneconomic damages, establishing the severity and impact of your TBI is crucial. Thorough medical documentation can shift focus from contributory negligence arguments to the severe impact of the injuries.
Documentation may include neurological assessments describing cognitive deficits, memory problems, and other brain function impairments. Imaging studies, like MRIs and CT scans, can provide objective evidence of brain damage. Neuropsychological testing can document changes in intelligence, memory, attention, and executive functioning after an accident.
Brain injuries often have long-lasting effects that may not be immediately apparent. Expert testimony, day-in-the-life videos, and testimony from witnesses describing changes in abilities and behavior can substantiate the long-term impact of a truck accident TBI.