CAR AND SHOPPING-RELATED ACCIDENTS FAQ:
WHAT YOU NEED TO KNOW

 

1. What are the most typical kind of accidents outside of accidents around the home?
2. Are you always required to report every accident you have with your car or other vehicle to the police?
3. When does it make sense to call the police?
4. Do you need to let your insurer know if you have an accident?
5. May you leave the scene of an accident without notifying anyone?
6. Should you admit to the other party involved or the officer that you were at fault?
7. What should you do if you have a car accident?
8. If you should get a ticket when involved in an accident, should you plead guilty?
9. How do you establish that the other side is responsible for the accident you have had?
10. What is negligence?
11. For you to establish actionable negligence, what must you plead?
12. What if you were partly at fault in causing the accident?
13. Generally speaking, how can you prove negligence.?
14. Must your car property damage claim be brought at the same time as your personal injury claim?
15. What is the law of Virginia with respect to slip or trip and falls at a store?
16. How do you establish the actual negligence of a store for a slip or trip and fall?
17. Can negligence be presumed from the mere happening of an incident?
18. How can a customer show a store had actual or constructive notice of a foreign substance being on its floor?
19. What should you do if you yourself or a loved one is injured in a fall at a store?
20. What should you do if you see a foreign substance on the floor of a store?
21. Who decides whether a legal duty is owed?
22. When must an action be brought if you desire to sue?
23. What are the statutes of limitations for various actions?
24. What kinds of insurance coverage should I consider having to protect against car accidents or the injuries resulting from them?


 

1. What are the most typical kind of accidents outside of accidents around the home?

The most typical remaining accidents are probably automobile, cycle, or pedestrian accidents and slip or trip and fall accidents.

2. Are you always required to report every accident you have with your car or other vehicle to the police?

No. Virginia Code ß 46.2-371 provides that "the driver of any vehicle involved in any accident resulting in injury to or death of any person, or some person acting for him, shall immediately give notice of the accident to a law-enforcement officer.

A willful failure to make the report required in this section shall constitute a Class 4 misdemeanor."

Virginia Code ß 46.2-372 provides that "any person involved in an accident

(i) resulting in injury to or death of any person or property damage, or

(ii) when there is reason to believe a motor vehicle involved in the accident was uninsured at the time of the accident,

may make a written report of it to the Commissioner, on a form prescribed by the Department."

However, you need to check your local county or municipal ordinances since Virginia Code ß 46.2-381 provides that "any county, city, or town may, by ordinance, require that the driver of a vehicle involved in an accident file with a designated department a report of the accident."

Moreover, the county, city, or town may, by ordinance, require the designated department to make the reports, including the report of the law-enforcement officer and including any photographs taken by law-enforcement officers, available for inspection by any person involved or injured in the accident or his attorney or any authorized representative of any insurance carrier reasonably anticipating exposure to civil liability as a consequence of the accident.

3. When does it make sense to call the police?

For minor accidents not involving injury, call the police if you think you were not at fault and the other party does not offer to pay for the damage.

Always call the police if there is injury or death to any person.

4. Do you need to let your insurer know if you have an accident?

Generally speaking, yes.

But if the accident is very minor and you want to pay for it yourself so that you will not incur an increase in the insurance premium, then there is no requirement that you advise your insurer.

Timely notice to you insurer is required under your insurance contract if you want your insurer to pay for your accident.

5. May you leave the scene of an accident without notifying anyone?

If another person is injured or if another personís property is damaged, no.

For accidents resulting in injury, see answer to 2 above.

For cases involving property damage, you need to inform the person whose property was damaged of your name and how to contact you.

6. Should you admit to the other party involved or the officer that you were at fault?

Generally speaking, no.

You should not admit the accident was your fault or apologize. You should stick to the facts. Donít admit not paying attention.

Be sure to get the names and addresses of any favorable witnesses.

7. What should you do if you have a car accident?

You should stop your car, stay calm, and offer to provide help or get help for any injured persons.

I recommend carrying a cell phone and a first aid kit in your car so that you can provide assistance to anyone injured.

You should get the names of any witnesses and their addresses and inspect the accident site noting traffic control signs, the length and location of any skid marks, point of first impact, any damage to the cars, and damage to other property.

You should avoid discussing or minimizing your injuries, but try and find out if anyone else is injured.

Finally, you should exchange insurance information with the other driver.

8. If you should get a ticket when involved in an accident, should you plead guilty?

No. If you plead guilty; your plea will be admissible against you if there is a later civil lawsuit involving the accident.

If you are convicted by the Court, your conviction will generally speaking not be admissible against you.

9. How do you establish that the other side is responsible for the accident you have had?

You have the burden of proving by the greater weight of the evidence that the other party was negligent and that their negligence proximately caused the accident and the injuries, if any, you sustained.

10. What is negligence?

Negligence is the failure to use ordinary care. Ordinary care is the care a reasonable person would have used under the circumstances of the particular case.

Thus the term negligence refers to conduct which falls below the standard established by the law for the protection of others against unreasonable risk of harm.

Negligent conduct is either

(1) an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another or

(2) a failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to perform.

11. For you to establish actionable negligence, what must you plead?

A plaintiff who seeks to establish actionable negligence must plead the existence of a legal duty, violation of that duty, and proximate causation which results in injury.

12. What if you were partly at fault in causing the accident?

In Virginia, we follow the old rule that any negligence of yours which is a proximate cause of your accident will bar you from recovering.

In other words, Virginia is a contributory negligence state.

But juries oftentimes simply reduce damages instead of barring the claim.

13. Generally speaking, how can you prove negligence.?

You can show that the other side violated a traffic rule which was the proximate cause of the accident. For example, you can show that the other side ran a stop sign, was speeding, or followed too closely.

Or if you canít show that a traffic rule was broken, you show: what the other side did, how dangerous it was, that the other side had the opportunity to discern the danger, the availability of safer alternatives, and the other sideís opportunity to know about safer alternatives.

14. Must your car property damage claim be brought at the same time as your personal injury claim?

No, you can bring these two claims at separate times.

15. What is the law of Virginia with respect to slip or trip and falls at a store?

The law in Virginia on the issue of premises liability is well settled. A store owner is charged with a duty to exercise reasonable care to make the store premises safe for invitees.

As part of this duty, the store is required to warn its invitees of any hidden dangers on the premises if it knows of them or if, in the exercise of reasonable care, it should have known of them.

This includes a duty to remove, within a reasonable time, foreign objects from its floors which it may have placed there or which it knew, or should have known, that other persons had placed there. Winn-Dixie Stores, Inc. v. Parker, 240 Va. 180, 182, 396 S.E.2d 649, 650 (1990); Gauldin v. Virginia Winn-Dixie, Inc., 370 F.2d 167, 169 (4th Cir. 1966); Colonial Stores v. Pulley, 203 Va. 535, 537, 125 S.E.2d 188, 190 (1962).

However, this duty will not be read so broadly so as to become, in effect, a rule of strict liability for every accident that occurs on a storeís premises. See Gauldin, 370 F.2d at 169-170.

In Gauldin, the Court held that it was too much to ask that a store employee, who had just taken steps to ensure that his area was clean and free of any hidden dangers from floor debris, should be on constant alert for such hidden dangers to the point of neglecting his other job duties. 370 F. Supp. at 170.

To hold otherwise would make the store owner an insurer of the safety of its customers. Id.; see also Colonial Stores, 203 Va. at 538, 125 S.E.2d at 190.

Thus, an injured customerís proof is legally sufficient to take his or her case to a jury if he or she can demonstrate

(1) actual negligence on the part of the store or its employees for directly causing the harm, or

(2) actual or constructive notice to the store of a hidden danger that proximately caused the customerís accident and

(a) either a consequent failure to warn or

(b) to take reasonable steps "to avoid the genesis of the danger," Parker, 240 Va. at 183, 396 S.E.2d at 650.

16. How do you establish the actual negligence of a store for a slip or trip and fall?

Generally speaking, a customer must produce:

(1) evidence by way of an admission from a store manager, department head, or employee that an employee or agent of the store caused the foreign substance to be on the floor, or

(2) the testimony of a witness who observed a store manager, department head, or employee causing a foreign substance to be on the storeís floor.

17. Can negligence be presumed from the mere happening of an incident?

Negligence cannot be presumed from the mere happening of an accident.

The burden is on the plaintiff to produce evidence of preponderating weight from which the trier of fact can find that the defendant was guilty of negligence which was a proximate cause of the accident.

18. How can a customer show a store had actual or constructive notice of a foreign substance being on its floor?

Generally speaking, the customer must produce:

(1) evidence of an admission from a store officer, manager, department head, or employee that shows that a store employee knew the foreign substance was on the floor, or

(2) testimony from a witness who can say

(a) that a store employee knew it was on the floor because the witness told the employee about it,

(b) that they saw a store employee see the substance or heard the employee report it to another, or

(c) how long the foreign substance was on the floor.

The requirement of actual or constructive notice was addressed in Colonial Stores Inc. v. Pulley, 203 Va. 535, 125 S.E.2d 188 (1962), in which the plaintiff entered the defendantís self-service store to purchase groceries and stumbled over an empty Coca-Cola bottle lying on the floor.

The plaintiff sued the store claiming the defendant "negligently and carelessly caused and permitted a certain drink bottle to be and remain upon the floor." 203 Va. at 536, 125 S.E.2d at 189.

After a verdict for the plaintiff, the Supreme Court reviewed and set aside the juryís verdict.

The court explained the plaintiffís burden as follows:

Having failed to establish that the bottle was placed on the floor by the defendant, it was then incumbent upon the plaintiff to prove that the defendant knew it was there, or, to show that the bottle had been there long enough that the defendant ought to have known of its presence, and, in either event, failed to remove it within a reasonable time or to warn her of the danger.

203 Va. at 537, 125 S.E.2d at 190 (emphasis added).

In deciding that the plaintiff had not met this burden of showing actual or constructive notice, the court in Colonial Stores emphasized the absence of evidence indicating that the defendant knew of the presence of the bottle or indicating that the bottle had been present for an unreasonable length of time:

There is no evidence is this case that the defendant knew of the presence of the bottle on the floor, nor is there any showing of the length of time it may have been there.

It is just as logical to assume that it was placed upon the floor an instant before the plaintiff struck it as it is to infer that it had been there long enough that [the defendant store] should, in the exercise of reasonable care, have known about it.

If the jury found negligence because the defendant "permitted" the bottle "to be and remain on the floor," then that finding is not supported by the evidence and is clearly wrong.

203 Va. at 537-38, 125 S.E.2d at 190 (emphasis added); see also Parker, 240 Va. at 184, 396 S.E.2d at 651 (1990).

19. What should you do if you yourself or a loved one is injured in a fall at a store?

You should get the names and addresses of any witnesses, what they can testify to, and try to get an admission from some store employee that they either caused the substance to be there or knew it was there either because they saw it or it was reported to them.

You are particularly interested in a witness who can testify as to how long the substance was on the floor, who saw the substance being dropped or spilled, or who can state that he or she had reported the substance to a store employee or heard another report it.

20. What should you do if you see a foreign substance on the floor of a store?

You should at least advise a store employee immediately of the substance.

You should make sure the store employee does something about the foreign substance.

You should consider taking steps to warn your fellow shoppers.

If your fellow shopper slips or trips and falls, you should provide your name and address.

21. Who decides whether a legal duty is owed?

The Court decides whether a legal duty is owed.

22. When must an action be brought if you desire to sue?

A cause of action or suit must be brought prior to the statute of limitations expiring.

In other words, a statute of limitations fixes the time within which you may bring an action or otherwise be forever barred from bringing it.

23. What are the statutes of limitations for various actions?

A. In Virginia, the statute of limitations for personal injury actions is 2 years and for property damage actions is 5 years.

In certain limited circumstances, such as infancy, the statute may be tolled.

24. What kinds of insurance coverage should I consider having to protect against car accidents or the injuries resulting from them?

You should have a liability policy in an amount sufficient to protect your assets should you have an accident.

You should have uninsured or underinsured coverage sufficient to protect yourself should another motorist with insufficient insurance strike you and cause you serious physical injury.

You should consider an umbrella policy which provides additional liability coverage for an accident in your vehicle or about your home.

 

I trust these Questions and Answers have helped clarify your understanding of legal issues involving car or shopping-related accidents. Due to the rapidly changing nature of the law, information contained in these Questions and Answers can become outdated. These Questions and Answers are intended solely for educational and informational purposes. The information contained herein is general in nature and should not be a substitute for seeking the advice of an attorney. Please remember that individual circumstances may affect the manner in which the law applies to each situation.

These Questions and Answers are not provided for use or reliance by you or any third parties and do not purport to be exhaustive or to render legal advice for your particular situation or any other specific case. They are meant merely to assist you in sharpening the questions you might ask of your legal advisor in your particular case.

Please give me a call should you have any questions.

Tom Leggette