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McGavin, Boyce, Bardot, Thorsen, & Katz, PC Tel: 703.385.1000
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Reckless Driving Statute Not Ground for Negligence Per Se

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In a personal injury case pending in the Circuit Court of Fairfax County, the Court sustained Defendant’s demurrer with respect to the Plaintiff’s negligence per se claim predicated upon Va. Code § 46.2-861. The Code section, titled “Driving too fast for highway and traffic conditions,” provides “A person shall be guilty of reckless driving who exceeds a reasonable speed under the circumstances and traffic conditions existing at the time, regardless of any posted speed limit.”

The common law definition of negligence is, “the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such person would not have done under existing circumstances.” Moore v. Virginia Transit Co., 188 Va. 493, 498 (1949). The negligence per se doctrine may be implicated when a statute articulates a standard of care that deviates from that established norm; however, not all statutory provisions dictate a standard of care, and therefore not all statutory violations can provide a basis for establishing negligence per se.

The Court’s opinion acknowledged that the standard of care for Code § 46.2-861 is reasonableness i.e., whether a speed is reasonable “under the circumstances and traffic conditions…” As a result, the Court held Code § 46.2-861 is nothing more than a reworded statement of common law negligence and dismissed the negligence per se claim.