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

In Virginia, as elsewhere, a lawsuit may be filed against a person (including a company) whose negligence, recklessness, or intentional conduct caused someone else to die.  These are called "wrongful death" suits.  Under Virginia law, all wrongful death cases must "be brought by and in the name of the personal representative of such deceased person."  A personal representative is a person, such as an executor, executrix, or administrator of a person's estate who is qualified by the clerk of the circuit court to represent the deceased person and his or her estate.  One of the powers of a personal representative is the power to sue.  Virginia has enacted statutes that explain who may qualify as a personal representative.  Personal representatives may be designated in a person's will.  If no will exists or if the executor named in the will fails or refuses to qualify, then the statute gives priority to others who may want to be the personal representative.  Qualifying as a personal representative is fairly easy and the people working in the clerk's offices in Virginia are very helpful in answering questions on these topics. 

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.   

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.