Contributory Negligence and The Sliver of Paper Trick
Assume the following facts: Nancy Smith was involved in a two-vehicle collision with Frank Jones who drove 45 miles per hour the wrong way on a single lane one-way street in a 25 mile per hour zone. Frank Jones’ vehicle collided with Nancy Smith’s vehicle which was headed in the correct direction down the same street. Smith concedes that prior to the crash she had set her cruise control at 27 miles per hour and her vehicle was traveling at that speed as it approached the area of the crash. But that minor violation seems irrelevant when weighed against Jones’s clear negligence.
Smith files a personal injury action against Jones. Smith and her counsel are surprised to learn that the Defendant and his counsel assert a defense of contributory negligence. At trial, during his cross of Smith, the only questions defense counsel raises relate to how fast Smith was traveling relative to the speed limit at the time of the collision, which your client admits was two miles over the speed limit. Plaintiff’s counsel shrugs off this questioning as inconsequential to the Defendant’s core negligence in driving at high speed the wrong way down a one-way street and colliding with the Plaintiff’s vehicle.
After Smith’s counsel gives closing arguments, defense counsel springs into action. He holds up a sheet of paper and tears off a tiny sliver of it at the edge. He holds that small sliver in front of the jury and states that under the law if the Plaintiff was negligent in the slightest degree she is not entitled to compensation. He reminds the jury that the Plaintiff actually admitted that she was going two miles over the speed limit and points the jury to an instruction that states, “The maximum speed limit at the time and place of the collision was 25 miles er hour. If a driver was driving his vehicle faster than this limit, then he was negligent.” Defense counsel tells the jury that Smith’s own testimony proves that she was negligent and as a result she cannot recover.
Does Virginia law actually bar Smith from recovery because she had admitted she was going two miles over the speed limit? Is the sliver of paper argument correct? Fortunately, for Smith and her counsel, defense counsel in this scenario is misstating the law. Civil Model Jury Instruction No. 6040 states, “When the defendant claims contributory negligence as a defense, he has the burden of proving by the weight of the evidence that the plaintiff was negligent, and that this negligence was a proximate cause of the plaintiff’s injuries.” 1 Virginia Model Jury Instructions – Civil Instruction No. 6.040 (2024) (emphasis added).
In the hypothetical described above, although defense counsel has proved that the Plaintiff was technically negligent at the time of the collision by traveling two miles over the posted speed limit, he has not proved that the Plaintiff’s speed was a proximate cause of the crash. Under Virginia law, the trial court has the responsibility to reject a contributory negligence defense as a matter of law whenever the connection between the alleged negligence and the plaintiff’s injury is too attenuated to constitute a legal, proximate cause. Furthermore, the Virginia Supreme Court has long maintained that it is erroneous and misleading to tell the jury that a plaintiff who is negligent “in the slightest degree” is guilty of contributory negligence.
See Yeary v. Holbrook, 171 Va. 266, 287, 198 S.E. 441,
451 (1938).
Rather, the Plaintiff’s negligence must be a substantial factor in contributing to the injury before her negligence will bar recovery. See id. “[M]ore than a scintilla of evidence is necessary to establish each of the elements of contributory negligence before such instruction may be given to a jury.” Sawyer v. Comerci, 264 Va. 68, 75, 563 S.E.2d 748, 753 (2002) (holding that the trial court erred in submitting contributory negligence defense to the jury). See also Rice v. Charles, 260 Va. 157, 532 S.E.2d 318 (2000) (trial court properly struck contributory negligence defense); Rose v. Jaques, 268 Va. 137, 597 S.E.2d 64 (2004) (same).
In other words: The evidence tending to show causal connection must be sufficient to take the question out of the realm of mere conjecture, or speculation, and into the realm of legitimate inference before a question of fact for submission has been made out.
Beale v. Jones, 210 Va. 519, 522, 171 S.E.2d 857, 858 (1970) (emphasis added).
Furthermore, “[t]he proximate cause of an event is that act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the event, and without which that event would not have occurred.” Cohn v. Knowledge Connections, Inc., 266 Va. 362, 369, 585 S.E.2d 578, 582 (2003) (quoting earlier decision) (emphasis added). In the hypothetical above, even though the Plaintiff was technically negligent, her negligence was not the natural cause of the crash. Instead, the Defendant’s conduct in driving the wrong way at high speed down a one-way street was the efficient intervening cause which defeats any proximate cause argument based upon the Plaintiff’s slight negligence. Therefore, the trial court should rule as a matter of law that the Plaintiff’s slightly excessive speed was not a proximate cause of the Plaintiff’s injuries and thus the Defendant cannot establish that the Plaintiff was contributorily negligent.
Defense counsel’s dramatic argument involving tearing off a tiny sliver of a piece of paper is a mischaracterization of Virginia law. The defense argument misleads the jury into believing that any negligence, no matter how minor and remote, bars a Plaintiff from compensation. But that is not the law. At trial, attorneys representing plaintiffs should promptly object to any defense contentions or arguments which involve this type of mischaracterization of Virginia law. Furthermore, if defense counsel has a reputation for making this type of argument, plaintiff’s counsel should file a motion in limine to prevent this argument at trial
The entire Marks & Harrison Fall 2024 Points of Law newsletter is available for download
1The author wishes to thank Brooke A. Norton for her valuable assistance on this article. Ms. Norton served as a law clerk at Marks & Harrison in the summer of 2024 and she anticipates graduating from Washington and Lee University School of Law in May of 2025
