Car Accidents

All car accident cases are personal injury cases, and all personal injury cases are torts—lawsuits in which victims seek justice from whomever harmed them. To win a car accident case, you must establish the four elements required of any tort:

1. Duty – You must establish that the defendant had a duty to do something good, or to not do something bad.
   1. For example, if a drunk driver hit you and you want to sue them, then you must establish that the driver had a duty not to drink and drive. This is easy to do in a drunk driving case, as § 18.2-266 of Virginia’s criminal code clearly prohibits driving under the influence of alcohol.
2. Breach – You must establish that the defendant did not fulfill his or her duty.
   1. For example, if a drunk driver hit you and you want to sue them, then you must establish that the driver was, in fact, drunk when he or she hit you. This may involve retrieving records of any breathalyzer tests performed by law enforcement at the scene of the incident.
3. Causation – You must establish that the defendant’s breach caused some harm to you.
   1. For example, if a drunk driver hit you and you want to sue them, then you must establish that the driver’s drunk behavior resulted in your injuries or car damage . This often involves establishing that your injuries or car damage did not exist before the drunk driver hit you.
4. Harm – You must establish that the results of defendant’s breach included recognizable injuries to you.
   1. For example, if a drunk driver hit you and you want to sue them, then you must establish that the diver’s drunk behavior caused you to experience physical injuries, property damage, lost wages, emotional trauma, or some other harm recognized by Virginia courts . This often involves gathering medical records and bills, so make sure to carefully keep and organize any paperwork you get after the incident.

Some car accident cases fall into special categories that, along with the four elements listed above, involve additional legal doctrines:

• Right of Way
  • Obviously, drivers who do not have the right of way have a duty to yield to those who do.
  • However, even drivers to do have the right of way have aduty to avoid collisions. See, e.g., Sayre v. Shields, 209 Va. 409, 410-11, 164 S.E.2d 665, 667 (1968).
  • Questions of right of way often involve establishing which streets are “public highways” and which are private streets. See, e.g., Caplan v. Bogard, 264 Va. 219, 563 S.E.2d 719 (2002).
• Traffic Lights
  • Obviously, drivers who do not have a green light have a duty not to drive past a traffic signal.
  • However, even drivers who do have a green light have aduty to avoid collisions. See, e.g., Damron v. Hagy, 220 Va. 455, 457, 258 S.E.2d 517, 518 (1979). For example, they must look out for those who illegally drive through red lights. See, e.g., Hodnett v. Friend, 232 Va. 447, 451, 352 S.E.2d 338, 341 (1987).
• Skidding
  • Proof that a vehicle skidded on a slippery road does can be used to establish—but does not necessarily establish— that the driver breached his or her duty to drive safely. See, e.g., Medlar v. Mohan, 242 Va. 162, 409 S.E.2d 123 (1991).
  • The court will often focus on the driver’s conduct before the vehicle started skidding to see whether the driverbreached his or her duty not to start skidding. Id.
• Failure to Look
  • Drivers generally have a duty to look for things like oncoming traffic; if you can establish that a driver did not look when a reasonable driver would have done so, then you may establish that the driver breached his or her duty. See, e.g., Medlar v. Mohan, 242 Va. 162, 409 S.E.2d 123 (1991).
• Mechanical Defects
  • Virginia courts presume that vehicles do not have mechanical defects; if you want to establish that a vehicle did have mechanical defects, then you must provide evidence to this effect. See, e.g., Thomas v. Settle, 247 Va. 15, 439 S.E.2d 360 (1994).
• Speed
  • Drivers have a duty not to drive at excessive speed; however, this duty is governed less by posted speed limits than by the conditions of a road at a given time and place. See, e.g., Kimberling v. PM Transport, Inc., 264 Va. 261, 563 S.E.2d 665 (2002).
  • Proof that a driver has breached his or her duty to drive at reasonable speed can be used to establish—but does notnecessarily establish—that this excessive speedcaused a subsequent accident.See, e.g., Gossett v. Jackson, 249 Va. 549, 457 S.E.2d 97 (1995).
• Tires, Hydroplaning
  • If an accident involves hydroplaning, then expert testimony about the vehicle’s tires may become important to the case. See, e.g., Holmes v. John Doe, 257 Va. 513, 515 S.E.2d 117 (1999). Expert testimony is often expensive and can be effectively countered only by opposing expert testimony.
• Uninsured and Underinsured Motorist Insurance
  • If you have been struck or otherwise harmed by actions of a driver who has little to no insurance, then your own insurance company may be required to pay for the damages. See Va. Code § 38.2-2206.
  • In this type of case, your insurance company has a right to become involved in the lawsuit. See, e.g., State Farm Mutual Auto. Ins. Co. v. Beng, 249 Va. 165, 466 S.E.2d 2 (1995).
  • To benefit from § 38.2-2206, you must have been “us[ing]” your insured vehicle at the time of the incident. See, e.g., United States Fire Ins. Co. v. Parker, 250 Va. 374, 463 S.E.2d 464 (1995). This includes, but can sometimes extend beyond, driving the vehicle. See, e.g., Great American Insurance Co. v. Cassell, 239 Va. 421, 389 S.E.2d 476 (1990) (holding that a fire fighter who blocked traffic with, and stored firefighting equipment in, parked fire truck was “using” the truck even when he stood 20 to 25 feet away from it).
  • If you do not know the identity of the driver who caused you harm, you may be able to file a “John Doe” suit against that unknown driver to establish liability. Va. Code § 38.2-2206. If you later learn the identity of the driver, you may then file another suit against that specific person for the purpose of collecting damages from that person or your insurance company. See, e.g., Rivera v. Witt, 257 Va. 280, 512 S.E.2d 558 (1999). If this happens, then the statute of limitations (or deadline for starting a lawsuit) will be “tolled,” or delayed, for however long it took you to discover the identity of the unknown driver. Id.
• Defenses
  • Contributory Negligence
    • If you sue someone for negligently causing a car accident, that person may defend himself or herself by arguing that you were partly responsible for the accident. This is called contributory negligence, and if the other party successfully establishes it, then under Virginia law you will automatically lose your case.
    • If you were the passenger in a vehicle and you sue the driver for driving while drunk and thereby causing an accident, then the driver may attempt to defend himself or herself by arguing that you should not have entered the vehicle while knowing he or she was intoxicated.See, e.g., Rice v. Charles, 260 Va. 157, 532 S.E.2d 318 (2000).
  • Choice of Paths Doctrine
    • A defendant may attempt to establish contributory negligence by arguing that, prior to the incident, you could have chosen among multiple paths of conduct, yet you chose an obviously dangerous one. See, e.g., Gardner v. Phipps, 250 Va. 256, 462 S.E.2d 91 (1995).
  • Sudden Emergency
    • A driver may defend against an accusation of negligent driving by arguing that he or she reacted to a “sudden emergency.”See, e.g., Gardner v. Phipps, 250 Va. 256, 462 S.E.2d 91 (1995).
• Unavoidable Accident
  • A driver may defend against an accusation of negligent driving by arguing that an accident was “unavoidable” and would have occurred regardless of whether that driver acted with due care. See, e.g., Bickley v. Farmer, 215 Va. 484, 488, 211 S.E.2d 66, 69-70 (1975). Note that courts disfavor this defense. See, e.g., Harrah v. Washington, 252 Va. 285, 293-94, 477 S.E.2d 281, 286-87 (1996) (“Such an instruction has the tendency to afford a jury and easy way of avoiding instead of deciding the issue made by the evidence in the case”) (internal quotations omitted).

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