How is Negligence Determined in a Personal Injury Claim?

Recovering compensation in a personal injury claim hinges on your ability to prove another party’s negligence was responsible for your accident. Negligence is defined as a person’s failure to act as a reasonable individual would have in a similar situation. It comes into play when a person is injured or killed in a preventable accident.

There Must Be a Duty of Care

Negligence can be challenging to prove, and the plaintiff (victim) must be able to establish that the defendant (at-fault party) owed them a duty of care. Duty of care varies in each situation, but here are some examples:

  • Car Accident Cases: Drivers owe others on the road a duty of care to drive safely and follow traffic laws.
  • Medical Malpractice Cases: Doctors and other medical providers owe a high duty of care to their patients to provide treatment with the same degree of skill and care possessed by another reasonably competent doctor or provider.
  • Premises Liability Cases: Property owners owe visitors a duty of care to keep their premises reasonably safe by fixing and repairing known dangers.

Anyone who comes into contact with another person owes them a duty to not hurt them, but the level of care expected is different depending on the circumstances.

Demonstrating Negligence

Once a duty of care is established, there are three other elements of negligence your personal injury lawyer will prove:


A breach of duty of care is the defendant’s failure to meet the standard of care required of them. For a judge or jury to determine that the defendant breached their duty of care, the plaintiff must be able to prove that the potential to cause harm was foreseeable, so, therefore, their behavior was negligent. For example, there is a foreseeable risk of harm when a driver drives drunk.


Even if the court decides the defendant acted negligently, there must be evidence linking the defendant’s carelessness to the plaintiff’s injuries. In other words, the plaintiff would not have suffered harm if not for the defendant’s behavior. Causation is typically the most contentious issue in a personal injury case. The defendant will normally do everything in their power to argue that the plaintiff’s injuries were not caused by their negligence.


For a plaintiff to be awarded compensation, they must have suffered losses. For example, medical bills, property damage, lost income, pain and suffering, etc.

Contributory Negligence in Virginia

Suppose the court determines the defendant’s negligence contributed to the plaintiff’s injuries. The court will still consider the plaintiff’s behavior and whether they were partially responsible. Under Virginia’s contributory negligence law, plaintiffs cannot recover compensation if they contributed to their accident in any way, even if they were only 1% to blame. Therefore, the defendant must be found 100% responsible for a plaintiff’s personal injury case to be successful.

Virginia is only one of four states that have not done away with contributory negligence and adopted a form of comparative negligence since this law is outdated and harsh. In comparative negligence states, a plaintiff’s percentage of fault will only reduce their financial recovery, not eliminate it.