THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Monday, April 10, 1995 TAG: 9504100027
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
LENGTH: Long : 151 lines
You be the juror: A man crosses the street and is hit by a car. The driver is speeding. Also, the driver is not wearing his glasses, even though he has a restricted driver's license.
The pedestrian sues. Can he collect damages?
In Virginia, the surprising answer is no. In this actual case from Norfolk Circuit Court, a jury said the driver was not liable because the pedestrian should have been more careful.
The verdict demonstrates a legal maxim that every local lawyer knows by heart: In Virginia, a victim cannot collect a dime in compensation if he is responsible for his own injury in even the tiniest way.
It is a legal principle called contributory negligence, and only four states - Virginia, North Carolina, Maryland and Alabama - have it. It is part of the reason personal-injury cases are so hard to win in Virginia.
It also explains, in part, why tort reform - one of the hottest issues around the country - is not such a big deal in Virginia.
While reformers curse multimillion-dollar jury verdicts in New York and Florida, they are virtually silent in Virginia.
``We already have tort reform in Virginia,'' says Lowell A. Stanley, a Norfolk personal-injury lawyer. ``We have a cap on punitive damages. We have a cap on medical malpractice awards. We have contributory negligence, which means if you're even 1 percent negligent (for your own injuries), you lose.''
Even lawyers who represent insurance companies say the Virginia system works pretty well.
``By and large, I don't think it's broken in Virginia,'' said Randolph C. DuVall, a Virginia Beach defense lawyer. ``I don't think it's particularly easy for people to recover in Virginia.''
If national reformers are looking for systems that work, they could do worse than to consider Virginia.
Here, lawyers say, there are few outrageous verdicts. Juries are restrained. Courts are conservative. Plaintiffs must meet a tougher burden of proof.
And when a victim does win, it is harder in Virginia to collect huge damage awards.
In part, lawyers say, it is a tribute to the ever-so-conservative nature of most Virginians.
In part, too, it is a tribute to laws that restrict how much money juries can award.
``This state,'' says Thomas J. Harlan Jr., a plaintiff's lawyer in Norfolk, ``doesn't have the kind of verdicts that make people pass out. It's virtually impossible to get multimillion-dollar verdicts.''
Norfolk lawyer Alan B. Rashkind, who represents civil defendants, agrees.
``In Virginia you're not seeing the verdicts that make the newspapers often,'' Rashkind says. ``I wonder if that's a result of the law or the juries. I think the system works pretty well in Virginia.''
Among the factors at work:
Contributory negligence: In Virginia, plaintiffs must be squeaky-clean to win a case. If they contributed to the accident in any way, they lose.
Unlike 46 other states, Virginia does not apportion liability. A driver who is 30 percent responsible for an accident cannot collect 70 percent damages from the other party. He or she collects nothing.
``It's a tremendous leveler of the playing field, a very powerful check on the system,'' DuVall says. ``It prevents anyone who's done something stupid in his own right from recovering.''
There is a down side to this rule: It means an accident victim who commits only a small error cannot collect damages from the person who is mainly at fault.
For example, Norfolk attorney Jeffrey A. Breit once represented a woman who was paralyzed after her car flipped on a road in Newport News. The pavement was uneven, and the woman sued the road contractor.
A jury decided the woman was only 5 percent negligent. That was enough to deny her recovery.
``You get a very harsh result,'' Breit says.
Still, some lawyers say the whole concept of contributory negligence is pretty theoretical. ``As a practical matter,'' says Norfolk defense lawyer Robert W. McFarland, ``I think jurors still do compare the fault of the parties.''
Punitive damages: There's a cap in Virginia - $350,000, no matter how serious the injury or how blatant the defendant's fault.
Local lawyers point to this cap when they say the controversial McDonald's coffee case, which helped spark the tort reform movement, would have come out much differently in Virginia.
The case stemmed from an incident in New Mexico. A 78-year-old woman burned herself severely when she spilled scalding coffee between her legs.
At the time, she was holding the cup between her legs, trying to add cream and sugar.
A jury awarded the woman $2.7 million in punitive damages - two days' worth of McDonald's coffee sales - to punish McDonald's for serving coffee too hot, despite repeated complaints.
But in Virginia, the woman probably would have lost the case because she was contributorily negligent.
Even if she had won, she could not have gotten more than $350,000 in punitive damages - one-seventh the jury's punitive damages.
``In Virginia,'' says Norfolk lawyer Palmer S. Rutherford Jr., a defense attorney, ``punitive damages are frowned upon.''
Medical malpractice: Virginia law limits medical malpractice awards to $1 million, regardless of injury.
In most cases, this makes no difference. The great majority of cases - perhaps 85 percent, Harlan estimates - fall within that limit anyway.
But plaintiffs' lawyers complain that $1 million does not cover the most severe injuries. For example, a Virginia Beach jury recently awarded the maximum $1 million to a man who lost the use of his penis because of a botched penile implant.
A similar case in Mississippi garnered $14 million, and another in Texas was worth about $5 million, according to a public opinion poll, said Harlan, who tried the Virginia Beach case.
Sovereign immunity: In Virginia, cities and counties are immune from most kinds of lawsuits. City employees also have limited immunity.
Most can be sued only for gross negligence, or wanton disregard of human safety.
The point was made last month in the trial of a Norfolk police officer who shot an innocent bystander. The bystander sued for $1 million, but he had to prove that the officer meant to shoot him, or that the officer was grossly negligent.
The jury found the shooting was an accident. The bystander won nothing.
In other states, where plaintiffs must prove only simple negligence, the case might have gone the other way.
``Virginia is far more protective of its municipalities and its municipal officers than most states,'' McFarland says.
Premises liability: If a customer is attacked at a fast-food restaurant or convenience store, can he sue the business? In Virginia, probably not.
State law here makes such a lawsuit hard to prove. In Virginia, a business owner cannot be held responsible unless he knows the customer is about to be attacked, or if his ``method of business'' attracts or provides a climate for assaults.
The landmark case comes from Norfolk. A woman was attacked in the parking lot of the Lake Wright hotel, so she sued the hotel for not protecting her.
The state Supreme Court said the hotel was not liable because its ``method of business'' did not attract crime.
``That decision is reflective of the conservative view of our appellate courts,'' said Rutherford, who defended the hotel. ``In New York or Louisiana or Wisconsin, there's no way that case would have been decided that way.''
Local lawyers say the combination of all these things - damage caps, conservative laws and cautious juries - explain why tort reform is not a hot issue in Virginia.
``In New York courts,'' Breit says, ``there's a million-dollar verdict once a week, so they're used to it. There's just no comparison in Virginia.'' ILLUSTRATION: HARD TO WIN BIG
Five reasons it's hard to win a big verdict in Virginia:
1. If a plaintiff is even 1 percent at fault for his accident, he
collects nothing.
2. Punitive damages have a $350,000 cap.
3. Medical malpractice awards have a $1 million cap.
4. Cities and counties are immune from most lawsuits.
5. In many cases, businesses are not liable for injured customers.
KEYWORDS: LAWSUITS TORT REFORM by CNB