WHAT TYPES OF DAMAGES CAN AN INJURED PERSON RECOVER?
There are two types of potentially recoverable damages in Virginia: compensatory damages and punitive damages.
Compensatory damages are compensation for the person’s injuries and losses. These injuries and losses include the bodily injuries; the impact of these injuries on the person’s health and function; physical pain; mental anguish; inconvenience; medical expenses incurred in the past and likely to be incurred in the future; loss of earnings and lost capacity to earn; and property damage.
Punitive damages are recoverable in limited circumstances. They are awarded to punish or make an example of the wrongdoer for conduct that is intentional or so reckless as to demonstrate a willful disregard for the rights of others. The actual payment of punitive damages is relatively rare.
WHEN DOES AN INJURED PERSON HAVE THE RIGHT TO RECOVER DAMAGES?
Generally speaking, an injured person can recover damages when he proves:
A company or a person was negligent
The negligence caused his injury
The injured person himself was not negligent
IS AN INJURED PERSON REQUIRED TO HIRE A LAWYER?
No. People can represent themselves in Virginia. A person can serve as his own lawyer just as he can serve as his own doctor, plumber, or mechanic. Whether or not this is a good idea depends on how serious the matter is and how much money is at stake. Many attorneys provide a free consultation for injury cases, and an experienced attorney can provide good advice on this issue.
WHAT IS THE ROLE OF THE JURY IN A JURY TRIAL?
The specific issues vary from case to case, but in a typical injury case, the jury would decide whether the defendant was negligent, whether that negligence caused damage to the plaintiff, whether the plaintiff was contributorily negligent or assumed the risk of injury, and the amount of damages to be recovered by the plaintiff.
As part of this process, the jurors have the specific job of judging the facts. They determine for themselves the credibility of the witnesses and the weight of the evidence. The judge will instruct them to consider the appearance and manner of the witnesses who testify, the witnesses’ intelligence, the witnesses’ opportunity for knowing the truth and for having observed the things about which they testified, their interest in the outcome of the case, their bias, whether they have made prior inconsistent statements, and whether they have knowingly testified untruthfully as to any material fact in the case. Jurors are instructed that they may not arbitrarily disregard believable testimony of a witness. However, after the jury has considered all the evidence in the case, then it may accept or discard all or part of the testimony of a witness as it thinks proper. From all the circumstances of the case, the jury determines which witnesses are more believable and weighs their testimony accordingly.
WHAT IS THE PLAINTIFF’S BURDEN OF PROOF IN AN INJURY CASE?
It is not enough for the plaintiff to prove than an accident occurred and caused him to suffer injury. In the normal case, the plaintiff has the burden of proving by the greater weight of the evidence that the defendant was negligent and that the defendant’s negligence caused the accident and the injuries to the plaintiff. The greater weight of all the evidence is sometimes called “the preponderance of the evidence.” This is the evidence that the jury finds to be more persuasive. The testimony of one witness whom the jury believes can be the greater weight of the evidence.
WHAT IS NEGLIGENCE?
Negligence is the failure to use ordinary care. Ordinary care is the care a reasonable person would have used under the circumstances of this case.
WHAT IS CONTRIBUTORY NEGLIGENCE?
Contributory negligence is essentially negligence by the injured person – it is the failure to act as a reasonable person would have acted for his own safety under the circumstances of this case. If the defendant proves that the plaintiff was contributorily negligent, then the plaintiff cannot recover for his injuries under Virginia law. When the defendant claims contributory negligence as a defense, he has the burden of proving by the greater weight of the evidence that the plaintiff was negligent and that this negligence was a proximate cause of the plaintiff’s injuries.
WHAT IF THE DEFENDANT WAS NEGLIGENT AND THE PLAINTIFF WAS CONTRIBUTORILY NEGLIGENT?
Under Virginia law, if the jury finds from the greater weight of the evidence that both the plaintiff and the defendant were negligent and that their negligence proximately contributed to the accident, then the jury is not allowed to compare the negligence of the parties. The plaintiff will be barred from recovering anything if his own negligence was a cause of the accident, even if the defendant was also negligent.
WHAT IS “ASSUMPTION OF RISK”?
If the jury finds by the greater weight of the evidence that the plaintiff fully understood the nature and extent of a known danger, and then voluntarily exposed himself to it, then the plaintiff the assumed the risk of injuring himself from that danger. The plaintiff cannot recover for injuries proximately resulted from assuming the risk of a known danger.
WHAT IS A CLAIM FOR “NEGLIGENT ENTRUSTMENT” OF A VEHICLE?
In order to recover for injuries sustained by a defendant who permitted another person to use the defendant’s vehicle, the plaintiff must prove that:
Defendant expressly or impliedly permitted the driver to drive the defendant’s vehicle
The driver was an unfit driver
The defendant knew, or should have known, that the driver was an unfit driver
The driver was negligent as a result of the unfitness
The driver’s negligence was a proximate cause of plaintiff’s injuries
HOW PRECISELY MUST THE PLAINTIFF PROVE HIS DAMAGE?
The burden is on the plaintiff to prove by the greater weight of the evidence each item of damage he claims and to prove that each item was caused by the defendant’s negligence. He is not required to prove the exact amount of his damages, but he must show sufficient facts and circumstances to permit the jury to make a reasonable estimate of each item. If the plaintiff fails to do so, then he cannot recover for that item.
DOES THE PLAINTIFF HAVE A DUTY TO MINIMIZE HIS DAMAGES?
Yes. If the jury finds that the plaintiff did not act reasonably to minimize his damages and that, as a result, they increased, then he cannot recover the amount by which they increased.
CAN THE PLAINTIFF RECOVER FOR NEGLIGENCE THAT AGGRAVATES A PRE-EXISTING CONDITION?
Yes. If the jury finds that the plaintiff had a condition before the accident that was aggravated as a result of the accident or that the pre-existing condition made the injury he received in the accident more severe or more difficult to treat, then if the jury finds for the plaintiff, the jury may award the plaintiff compensation for the aggravation and for the increased severity or difficulty of treatment. The plaintiff is not, however, entitled to recover for the pre-existing condition.
WHEN CAN A PLAINTIFF RECOVER FOR BEING INJURED DUE TO A HAZARDOUS CONDITION ON SOMEONE ELSE’S PROPERTY?
The answer depends on a number of factors. Generally speaking, if the occupant of the property invites the person onto the property, the occupant has the duty to the person:
To use ordinary care to have the property in a reasonably safe condition for the invited person’s use consistent with the invitation, but an occupant does not guarantee an invited person’s safety.
To use ordinary care to warn an invited person of any unsafe condition about which the occupant knows, or by the use of ordinary care should know, unless the unsafe condition is open and obvious to a person using ordinary care for this own safety.
If the occupant of the property fails to perform either or both of these duties, then he is negligent.
HOW MUCH IS MY CASE WORTH?
The answer to this question depends on the answers to many other questions.
Who was at fault?
What are your injuries?
What are your financial losses?
Does the defendant have the money or insurance coverage to compensate you?
If the defendant is relying on insurance, how much coverage does he have?
How will the jury react to the case?
What are the problems with the case?
Is there anything particularly sympathetic about either side in the case?
Is there anything unsympathetic about either side?
Where will the case be tried?
Who is on the jury?
HOW MUCH WILL YOU CHARGE TO REPRESENT ME?
Normally, we represent clients on a contingent fee basis. This is an arrangement where the lawyer receives a percentage of the money actually recovered by the client. In this arrangement, if there is no recovery, then there is no attorney’s fee. The attorney’s fee is different from the costs and expenses incurred for litigation. These costs and expenses are the client’s responsibility and must be repaid by the client, although we often advance these costs as they are incurred during the litigation.
CAN YOU GUARANTEE ANY PARTICULAR OUTCOME IN A CASE?
No. Although we only accept cases that we believe in, there is no guarantee that the case will be resolved in any particular way. Litigation and trials are full of uncertainty.
Take the time on your own to learn about legal matters in Virginia. This should never be used as a substitute for the advice of experienced counsel; this education empowers you and can help frame your discussions with your attorney.
Please contact us to schedule an appointment.