Sleep Better at Night With Answers to Your Top Questions on Virginia Brain Injury Claims

Experiencing something as traumatic as an accident in Chesterfield County can leave your head spinning with questions and uncertainty. Get the answers you need fast in this FAQ series from Richmond brain injury attorney Kevin Mottley.

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  • What does "contributory negligence" mean and why is that important in a Virginia brain injury case?

    In another Frequently Asked Question, I explained the meaning of "negligence" and why it is important in Virginia brain injury cases and all other personal injury cases in Virginia.  "Contributory negligence" means the same thing as "negligence."  The only difference is that, when lawyers speak of contributory negligence, we are referring to any negligence committed by the injured person (the plaintiff) that "contributed" to the injury.  Hence, the word "contributory" is inserted in front of "negligence." 

    Why is this distinction important?  It is important because of the common law in Virginia.  Virginia is one of only two states (I believe) that still adheres to the old rule that, if an injured person's own negligence contributed to his or her own injury, then the person is completely barred from recovering compensation from the defendant.  So, for example, if a defendant store was negligent in maintaining its store by leaving a tripping hazard in a walk way, a person injured by that negligence would be completely barred from recovering money from the defendant if the injured person was also negligent in failing to watch where they were walking.  This is a pretty harsh rule, particularly in cases in which the injured person was only slightly negligent.  That, unfortunately, does not matter.  Most other states adhere to some sort of "comparative" negligence rule.  In such states, the jury can take into consideration the degree of negligence attributable to each party and take that into consideration when awarding compensation to the injured person.   

  • What does the word "negligence" mean in a Virginia brain injury or other serious injury case?

    The word "negligence" is very important in any personal injury case.  That is because, for the plaintiff to win a personal injury case, it is usually necessary for the plaintiff to prove that the defendant was negligent and that the defendant's negligence caused the plaintiff's injury.  In Virginia, as elsewhere, "negligence" means a failure to exercise what is called "ordinary care."  Ordinary care is that degree of care that a "reasonable person" would exercise under the same conditions and circumstances existing at the time and place of the incident in question.  I know this sounds like a lot of legal gibberish.  But what I've just written is pretty much what a jury is told about the law before the jury is sent back to the jury room to decide the case.  In fact, the actual jury instruction read to juries every day in Virginia is as follows: "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."  So there you have it.  What does it mean, exactly?  When thinking about the "reasonable person" in layman's terms, I tell people to imagine a slightly nerdy fellow with a pocket protector who is very careful about things as he goes about his daily activities.  Is the speed limit 55 miles per hour?  The so-called "reasonable person" goes 55 mph or below, but not so far below to be "unreasonable."  (We've all seen people driving 35 in a 55 zone, which I would submit is unreasonable and negligent.)  Is there something slippery on a floor in a grocery store?  The reasonable person who works at the store looks for that sort of condition and, when he finds it, he cleans it up or puts down an effective warning sign.  You get the picture.

  • What is fraud?

    In Virginia, a person who has been defrauded may have a civil claim for damages against the person who defrauded the plaintiff.  A fraud is, in essence, a lie that has been relied upon by someone and, as a result, has caused damage to the person who relied on the truthfulness of the lie.  In legal jargon, an "actual fraud" is defined as a misrepresentation of a material fact, knowingly and intentionally made, with the intent to mislead another person, which that person relied upon with the result that he or she (or it, in the case of a company) was damaged by it.  Frauds come in two different types: actual fraud and constructive fraud.  Constructive fraud happens when someone says something that is not truthful, but the falsehood was made "innocently" and "negligently," as opposed to "knowingly and intentionally."  Fraud cases are very complicated and all sorts of nuances to the above definitions exist under the law.  Therefore, if you suspect you have been the victim of a fraud, you should consult with a Virginia attorney about the matter so that you can understand whether you should seek relief in court.

  • What is a business conspiracy?

    Virginia is unique in that it has a criminal statute making it illegal for two or more persons to conspire to harm another person in his or her trade, business, or profession.  Although the statute is a criminal statute, it gives rise to a civil lawsuit for treble damages, and I suspect that the statute is actually used more often in civil cases than in criminal cases.  So, what is required to show a violation of the business conspiracy statute in Virginia?

    First, it must be shown that the defendant and at least one other person acted in concert, agreed, associated, mutually undertook, or combined together for some purpose.  Second, it must be shown that the conspirators intentionally, purposefully, and without lawful justification injured the plaintiff in his, her, or its reputation, trade, business, or profession.  Third, it must be shown that the plaintiff actually suffered damage as a result of the conspiracy.  If each of these elements is shown, the plaintiff may be entitled to recover treble damages plus attorney's fees as a result of the conspiracy.

    Business conspiracy law is incredibly confusing in Virginia.  The foregoing definition is a generalization.  For you to understand whether you may have experienced a business conspiracy that may be redressed in court, you really need to have the matter evaluated by a Virginia attorney.

  • What is tortious interference with contract or business expectancy?

    In our business litigation practice, we have represented clients (both individual business clients and business organizations) who have been the victim of a wrong called "tortious interference." What is tortious interference, exactly?

    First, let's get the name right. It is "tortious" interference. It is not "tortuous" interference. (These cases can indeed be "tortuous" to handle.  But that is not the name of the cause of action. And if you see a lawyer writing about this subject matter using the word "tortuous," that's a sign that they don't know what they're talking about.)

    When Does a Claim for Tortious Interference Happen?

    In Virginia, a claim for tortious interference arises when (a) there is a valid contract or business expectancy between the plaintiff and a party other than the defendant, (b) someone who is not a party to the contract (the defendant) has knowledge of its existence, (c) the defendant intentionally causes the contract to be broken (breached) by one of the parties to the contract (not the plaintiff) and (d) the breach of contract causes damages to the plaintiff.  If each of these elements are present, tortious interference with the contract case may exist.  If the contract in question was "terminable at will," meaning that either party had the legal right to break it, a case may still exist.  However, an additional showing must be made by the plaintiff that the defendant used "improper methods" to interfere with the contract that was terminable at will.  This same additional requirement applies to legal relationships that are in the category of business "expectancies" but that do not rise to the level of a contract.  Business expectancies may also be interfered with in a way that leads to a liability for damages.  But improper methods of interference must be shown.

    After reading that, you may be wondering what all of this means. After all, these elements that I just outlined are filled with a lot of legalese.

    An Example To Illustrate Tortious Interference

    Let's say, for example, that a hypothetical food distributor called Agriculture Company has a contract to deliver vegetables for a five-year term to a very popular restaurant and bar in town called Bunny's Bar & Grill. The contract is not terminable at will. In other words, it cannot be unilaterally terminated by either party during the five-year term without that party being in breach of (i.e., in violation of) the contract.

    Next, let's say that a third hypothetical company, Carrott Company, is in the same business as Agriculture Company but, unlike Agriculture Co., Carrott Co. specializes in exotic heirloom carrots. As a competitor of Agriculture Co., Carrott Co. wishes that it had the contract with Bunny's. After all, Carrott Co. is convinced that its carrots are far superior to the bland carrots sold by Agriculture Co. So it feels justified in trying to take Bunny's business away from Agriculture Co. 

    One day, Carrott Co.'s CEO, Charley Crook, comes up with a plan for stealing the business away from Agriculture Co. and of convincing Bunny's that it should break the agreement with Agriculture Co. As part of this plan, Mr. Crook calls Bunny's owner (Bunny Burgess), and tells Ms. Burgess that Agriculture Co. has had a problem with outbreaks of salmonella in its food supplies. This, of course, is not true. Mr. Crook says these are just "rumors," but he stresses that he is well connected in the food supply industry, and he just wanted to let Ms. Burgess know about the rumors out of concern for her business and customers. Mr. Crook then goes onto a food supply services blog site, creates an anonymous account, and posts a blog post alluding to the salmonella rumors at Agriculture Co. Shortly after her communication with Mr. Crook, Bunny's terminates its contract with Agriculture Co. As a result of this, Agriculture Co. loses tens of thousands of dollars in revenue that it anticipated making from its sales to Bunny's in the coming years.

    In the foregoing example, Agriculture Co. has a tortious interference with contract claim against Carrott Co. because:

    • There was a contract between Agriculture Co. and Bunny's that was not terminable at will;
    • Carrott Co. knew about the contract;
    • Carrott Co. intentionally took actions to interfere with the contract, which actions caused the contract to be broken; and
    • Agriculture Co. suffered damages in the form of lost revenues from the breach.

    It should be pointed out that Agriculture also has a case for "breach of contract" against Bunny's because the contract was not terminable at will and Bunny's unilaterally terminated it.

    Another point to observe from this example is that the methods used by Mr. Crook and Carrott Co. were not just intentional. They were improper. They were defamatory. The CEO of Carrott, Mr. Crook, intentionally spread lies about Agriculture Co. for the purpose of harming its business and its reputation. Therefore, even if the relationship between Agriculture and Bunny's was not to the level of being a contract not terminable at will (i.e., it was terminable at will or was only a "business expectancy"), Agriculture would likely still have a case for tortious interference against Carrott Co., albeit a case for interference with a business expectancy rather than a contract.

    As explained in one case from the Supreme Court of Virginia that is often cited, Duggin v. Adams, "[m]ethods of interference considered improper are those means that are illegal or independently tortious, such as violations of statutes, regulations, or recognized common-law rules. Improper methods may include violence, threats or intimidation, bribery, unfounded litigation, fraud, misrepresentation or deceit, defamation, duress, undue influence, misuse of inside or confidential information, or breach of a fiduciary relationship."

    Non-compete Agreement Could Be Used in a Claim for Tortious Interference

    Tortious interference can arise in all sorts of situations and sour business dealings. For example, it often arises in cases where one company hires a valued employee away from another company. If the employee had a non-compete agreement with the first company that will be violated by the employee changing jobs, and the second company knew about that non-compete agreement, the old company may have a claim against the second company for tortiously interfering with its contractual relationship with its employee.

    For a jury to sort through these issues in a court, the court provides the jury with a set of instructions, called "jury instructions", to help them decide the issue. The jury instructions explain the issues in the case and serve as an outline for the jury to follow when making its decision. Here is the published civil jury instruction in Virginia state court for tortious interference:

    Wrongful or Tortious Interference with Contract Not Terminable at Will: Finding Instruction

    You shall find your verdict for the plaintiff if he proved by the greater weight of the evidence:

    (1) that there was a business expectancy or a valid contractual relationship between the plaintiff and (name of third party); and

    (2) that the defendant knew of this business expectancy or contractual relationship; and

    (3) that the defendant intentionally interfered and caused the [breach; termination] of the expectancy or relationship; and

    (4) that the plaintiff was damaged by the [breach; termination].

    You shall find your verdict for the defendant if: (1) the plaintiff failed to prove any one or more of these elements; or (2) the defendant proved by the greater weight of the evidence that the interference was justified, privileged, or not improper.

    Business Dispute Attorneys Serving Richmond, Virginia and Beyond

    If you are an individual who feels that you, or a business you own, has been harmed by another person or company who has wrongfully interfered in your business, please give our Richmond Business Litigators a call to discuss your matter. We have a long track record of advising business people and businesses about issues relating to tortious interference.




  • What is a breach of contract?

    Most business disputes involve a contract and an allegation that someone has broken a promise contained in the contract.  What is a "breach of contract" case?  A breach of contract is when one party a contract breaks a promise that is embodied in the contract.  To have a case for breach of contract, it is necessary to show the existence of a legally enforceable contract, oral or written, a material breach (violation) of the contract by one of the parties to the contract, and damages resulting from the breach of contract.

  • Do I need a lawyer?

    Do I need a lawyer?  Every client who comes through my door has asked that question prior to picking up the telephone and calling my law office for an appointment.  It is, of course, a very good question that every person with a law-related issue should ask.  It is a fundamental question that leads down two very different paths.  Either you hire a lawyer to help you or you do not.  Depending upon your answer, the two experiences you will have are completely different.

    The problem, in my view, is not that people fail to ask this question.  The problem is how people answer it.  In my experience, people do not spend enough time thinking about whether they actually need to get a lawyer involved in their situation.  And even when they do make that decision, they run out as quickly as they can and hire the first lawyer who agrees to take their case without doing a lot of homework.  (How you choose the best lawyer for your case is a topic for another frequently asked question.)

    When a person who has been injured asks me whether I will agree to take their case, this begins an evaluation process at my firm during which I determine if the matter is a case I would be willing to handle.  Not every legitimate personal injury case requires a lawyer to settle it.  Particularly in cases that: (a) involve clear liability on the part of the defendant and (b) do not involve significant medical bills or other out of pocket expenses (damages), it is often better for the injured person to resolve (settle) their case directly with the other person's insurance company without using a lawyer.  Despite what many personal injury lawyers will tell you, settling your own case without a lawyer is not only possible, it is often better for the injured person.

    Why is that?  The answer is attorney's fees.  In the case of a person who has been injured, lawyers typically will earn a fee that is calculated using a percentage of the recovery (the settlement or judgment amount).  This is called a "contingency fee" because the lawyer's fee is not guaranteed.  It is "contingent" on (dependent upon) the outcome of the case.  A typical contingency fee is 33%, or one-third, of the recovery.  So, if you have a case with low "special damages" (such as medical bills, lost wages, other expenses) and it is clear that the other side is responsible for the injury, you should at least try to resolve the claim directly and save on the attorney's fees.

    So, what damages are significant enough to get an attorney involved in an injury case.  Every lawyer is different.  In my own law practice, I typically require medical bills in excess of $3,000 before I will agree to consider a case.  But even that depends upon the type of case, how the injury is still impacting the person, and what happened to cause the injury.  It really depends upon the circumstances.  So it is best to at least establish contact with a lawyer to discuss your matter.

    The foregoing comments apply to personal injury cases.  If your case involves another situation, like a business dispute or a family estate dispute, then you most certainly will require an attorney to consult with you on your case.  Cases in these two categories are very unique and can be very complicated, and it is highly unlikely that you're dealing with an insurance claims representative on the other side.  Thus, the issue is not as much about resolving your case for a fair amount as it is understanding your rights and the other party's duties and obligations to you.  Again, these situations tend to be so unique, case-specific and complicated that you really need a lawyer experienced in these areas to help you.

  • Is a “concussion” a brain injury?

    A concussion is a type of traumatic brain injury.  It is normally described by health care professionals as a “mild” traumatic brain injury because concussions are normally not life threatening.  Even so, their effects can be serious.  Symptoms may go on for weeks and may not even appear until an extended time after the accident.

  • How common are traumatic brain injuries?

    A traumatic brain injury (or “TBI”) is a serious public health problem in the United States according to the Centers for Disease Control.  According to the CDC’s research, each year, TBI contributes to a significant number of deaths or permanent disability in the United States.  It is estimated that, each year, at least 1.7 million TBI’s occur in the U.S., most of which are considered “mild” traumatic brain injuries caused by a concussion.

  • How do you, as the lawyer, present my brain injury case to the jury?

    Successfully presenting a mild traumatic brain injury case to a jury is all about demonstration and corroboration.  What do I mean by that?  Well, if a mild brain injury case is going to trial, it is for one of two reasons.  First, the insurance company and its lawyers do not believe that the plaintiff actually has a brain injury.  Second, the insurance company and its lawyers do not believe the plaintiff should receive money for many of the future rehabilitative expenses that will be necessary to help the plaintiff successfully recover and live a normal life.  So that is the battleground in the case.

    They say that “seeing is believing.”  When it comes to proving that a brain injury occurred, I do believe in that saying.  To win, you must demonstrate the injury to the jury.  To demonstrate that the plaintiff does have a mild traumatic brain injury, we use numerous demonstrative exhibits and other visual exhibits (such as photographs) to show the severity of the impact.  We also use illustrations and models of the skull and brain, and we have the plaintiff’s doctor visually show the jury exactly where and how the plaintiff’s brain was injured.  Every case is different but, in every case, the trial lawyer wins by successfully demonstrating the existence of an injury.

    Equally important to the plaintiff’s success is having friends, family, coworkers, and physicians come in to court and tell the jury that they have personally witnessed and observed a change in the plaintiff since the accident.  This is incredibly important to a successful case.