Legal Question in Traffic Law in Virginia

Re: Injury in Accident Follow up Question

I think it could go either way. I think there is enough of a claim that you should make the effort (at least based on what you have mentioned so far) and should puruse a legal claim.

However, other facts can have a huge influence: What did he SAY? How wide was the road? How easy/hard was it for her to miss her?

If your husband thought it was a 2 way street, I assume he was not driving in the same lane she was. How could he think it was a 2 way street and drive right at her? So I think there is MORE to the story than this.

Logically, for "contributory negligence" to be a bar to prevent recovery of your losses, the negligence must CONTRIBUTE to the accident.

So, for example, if your husband went out improperly dressed or even not wearing a helmet on his scooter, this would clearly not CONTRIBUTE to the accident. If your husband had forgotten to brush his teeth, it would be negligent but it would not be contributory negligence related to the accident.

HOWEVER, it is such a strong idea, tradition, and habit in Virginia law to invoke contributory negligence that judges and even juries might just reflexively say "blocked!' without really thinking it through. So a court could easily decide this is contributory negligence... and you get nothing.

It seems to me that a scooter going 10 MPH is not going fast enough to matter one way or the other in terms of a driver HITING SOMETHING IN THE MIDDLE OF THE ROAD. A driver is supposed to keep her car under control and not hit things right in front of her in the middle of the road.

I would say that whether your husband was sitting still or going 10 MPH makes no difference.

However, I can easily see that a judge and/or jury might just say "Going the wrong way? NEGLIGENT! Obviously! You get nothing." Unfortunately, if your husband is found just 1% responsible, he can get nothing in Virgnia. (Not all States are so harsh on that point.)

But you will never know without ASKING the question to a court. While I think you face REAL difficulties in such a case, I don't think anyone can say for certain what a court might decide.

The deck is stacked against you. But you might have a shot, and you will never know without trying.

However, if your husband ADMITTED being at fault (or someone just remembers it that way, even falsely) that could be really damning.