VIRGINIA TRANSPORTATION RESOURCES
- 1.1 Statutes of Limitation
- 1.2 Negligent Entrustment, Hiring, Retention and Supervision
- 1.3 Course and Scope of Employment
- 1.4 Contributory Negligence
- 1.5 Contribution or Implied Indemnity from Third Parties
- 1.6 Exclusivity of Workers Compensation
- 1.7 Seat Belt and Helmet Use
- 1.8 Spoliation
- 2.1 Caps
- 2.2 Joint and Several Liability
- 2.3 Standard of Proof Required for Compensatory Damages
- 2.4 Collateral Source
- 2.5 Hedonic Damages
- 2.6 Life Care Plans
- 2.7 Wrongful Death Standing and Damages
- 2.8 Punitive Damages
- 2.9 Offers of Judgment
- 2.10 Biomechanics
- 2.11 Policy Limits Disclosure
- 2.12 May claimant recover general damages if they do not have their own auto-insurance? (“No pay to play”)
Statutes of Limitation
Two (2) Year Statute of Limitations. Va. Code § 8.01-243(A).
- Five (5) Year Statute of Limitations. Va. Code § 8.01-243(B).
- Parents' claim for medical expenses for an injured child is considered a property damage claim. Va. Code § 8.01-243(B).
- Two (2) Year Statute of Limitations for Bodily Injury. Va. Code § 8.01-243(A).
- Five (5) Year Statute of Limitations for Property Damage Va. Code § 8.01-243(B).
Breach of Contract
- Written Contract: Five (5) Year Statute of Limitations. Va. Code § 8.01-246(2).
- Oral Contract: Three (3) Year Statute of Limitations. Va. Code § 8.01-246 (3).
Minor Statute of Limitations
Two (2) years past eighteenth birthday for personal injury. Va. Code § 8.01-229.
Negligent Entrustment, Hiring, Retention and Supervision
- Virginia recognizes the tort of Negligent Entrustment. To succeed on this claim, a plaintiff must prove that a vehicle owner “knew or had reasonable cause to know that he was entrusting his car to an unfit driver likely to cause injury to others,” and that this negligent entrustment was the proximate cause of the accident. Turn v. Lotts, 244 Va. 554, 422 S.E.2d 765 (1992); Kellermann v. McDonough, 278 Va. 478, 684 S.E.2d 786 (2009).
- In Virginia, a claim of Negligent Entrustment will usually be vulnerable to an early dismissal or a motion for directed verdict. Darnell v. Lloyd, 2016 U.S. Dist. LEXIS 49811 (E.D. Va. 2016) (“A Plaintiff must carefully plead negligent entrustment under Virginia law.”).
- “The Supreme Court of Virginia has allowed jury findings of negligent entrustment to stand only where the owner had notice of some physical or mental defect of the driver.” O’Brien v. Glenn, 80 Va. Cir. 188 (Rockingham County 2011) (citing Hack v. Nester, 241 Va. 499, 404 S.E.2d 42 (1990) (vehicle owner knew of broken headlight); Denby v. Davis, 212 Va. 836, 188 S.E.2d 226 (vehicle owner knew driver had severe eye condition and no license); Crowell v. Duncan, 145 Va. 489, 134 S.E. 576 (1926) (vehicle owner knew driver had had license revoked for alcohol abuse)).
Negligent Hiring & Negligent Retention
- Virginia recognizes the torts of Negligent Hiring and Negligent Retention. To succeed on a claim of Negligent Hiring, a Plaintiff must show that the Defendant had knowledge of some dangerous propensities of the person whom it has hired. Interim Pers. of Cent. Va., Inc. v. Messer, 263 Va. 435, 440, 559 S.E.2d 704, 707 (2002). “Mere proof of the failure to investigate a potential employee’s background is not sufficient to establish an employer’s liability for negligent hiring.” B.E.L. v. Prince, 81 Va. Cir. 391 (Culpeper County, 2010).
- If a plaintiff’s claim fails to allege that the Defendant had knowledge of the dangerous propensity of its employees, then the Court should dismiss the plaintiff’s claim for Negligent Hiring upon Demurrer or Motion to Dismiss. Matthews v. Fairfax Trucking, 2015 WL 1906073 at * 6 (E.D. Va. Apr. 13, 2015) (quoting Berry v. Scott, 45 Va. Cir. 240, 248 (Norfolk 1998)).
- To succeed on a claim of Negligent Retention a Plaintiff must prove that an employer retained a dangerous employee who the employer “knew or should have known was dangerous” and likely to harm others. SE Apts. Mgmt., Inc., 257 Va. 256, 260–61, 513 S.E.2d 395, 397 (1995).
- It is currently unclear whether Virginia recognizes the tort of Negligent Supervision. In the case of Chesapeake & Potomac Tel. Co. v. Dowdy, the Virginia Supreme Court held that “In Virginia there is no duty of reasonable care imposed upon an employer in the supervision of its employees under these circumstances, and we will not create one here.”235 Va. 55, 58, 368 S.E.2d 751, 754 (1988).
- Most courts in Virginia have taken an expansive view of Dowdy and have held that Virginia law does not recognize any tort of “Negligent Supervision.” See e.g., Muse v. Schleiden, 349 F. Supp. 2d 990, 1001 (E.D. Va. 2004) (“Virginia does not recognize a claim for negligent supervision.”); Jones v. Kroger Ltd P’Ship, 80 F. Supp. 3d 709, 714–15 (W.D. Va. 2015); Courtney v. Ross Stores, Inc. 45 Va. Cir. 429, 432 (Fairfax 1998).
- Nevertheless, the Virginia Circuit Court for the City of Norfolk Virginia has repeatedly recognized the tort of Negligent Supervision. See Hernandez v. Lowe’s Home Ctrs., Inc., 83 Va. Cir. 210 (Norfolk City 2011); Bush v. Serco, Inc., 92 Va. 164, 169 (Norfolk City 2015).
- Outside of Norfolk City Circuit Court, a claim for Negligent Supervision is likely vulnerable to a demurrer or motion to dismiss.
- Virginia does not recognize the tort of Negligent Training. Gray v. Home Depot, 2015 U.S. Dist. LEXIS 5115 at *7 (E.D. Va. Jan. 15, 2015) (“[N]egligent training is not recognized as a tort in Virginia.”).
- The Norfolk City Circuit Court has suggested that a tort of Negligent Training may exist in situations where an employee is deemed “reasonably unable to understand the risk[s] of their employment. Hernandez v. Lowe’s Home Ctrs., Inc., 83 Va. Cir. 210 (Norfolk City 2011). However, no Virginia Court has ever actually recognized the tort of Negligent Training.
- Virginia’s Circuit Courts have had a particularly strong tendency to dismiss negligent training claims in the context of employee drivers. See generally Porter v. Jarri A. Woods & Accurate Marine Envtl., 2017 Va. Cir. LEXIS 184 at *6–7 (August 30, 2017 Norfolk County) (reviewing cases wherein claims of negligent training of employee drivers failed as a matter of law).
Course and Scope of Employment
Standard of Review
In Virginia, once the Plaintiff has established an employer-employee relationship, the employer has the burden of proving—by a preponderance of the evidence—that the employee was not acting within the scope of his employment. Whether an employee acted within the scope of his employment, is usually a question of fact left for a jury. Tri-State Coach Corp. v. Walsh, 188 Va. 299, 49 S.E.2d 363 (1948); Oberbroeckling v. Lyle, 234 Va. 373, 381 362 S.E.2d 682, 687 (1987).
Generally speaking, an employee’s tort is deemed to occur within the course of employment when: (1) motivation to commit the tort sprang from some aspect of the employers employees work, and (2) the tort was committed while the employee was performing some service for his employer. See Commercial Business Sys. v. Bellsouth Servs., 249 Va. 39, 453 S.E.2d 261 (1995); Cary v. Hotel Rueger, Inc., 195 Va. 980, 81 S.E.2d 421 (1954); Walsh, 188 Va. at 299, 49 S.E.2d at 363.
Virginia is a Pure Contributory Negligence State
Virginia recognizes the affirmative defense of contributory negligence. If the Plaintiff’s own negligence contributed to his accident, then he may not recover. See generally, Estate of Moses v. Southwestern Va. Transit Mgmt. Co., 273 Va. 672, 643 S.E.2d 156 (2007)
The Last Clear Chance Doctrine
- Technically, Virginia recognizes the last clear chance doctrine; however, this jury instruction is rarely given.
- Under the Last Clear Chance Doctrine, “[w]here the injured person has negligently placed himself in a situation from peril from which he is physically unable to remove himself, the defendant is liable if he saw, or should have seen [the injured person] in time to avert the accident by using reasonable care.” Coutlakis v. CSX Transp., Inc., 293 Va. 212, 219, 796 S.E.2d 556, 560 (March 9, 2017) (quoting Greear v. Noland Co., 197 Va. 233, 238, 89 S.E.2d 49, 53 (1955).
The Sudden Emergency Defense
- Virginia recognizes the sudden emergency defense, although the jury instruction is rarely given.
- Under the sudden emergency defense, a defendant may be excused from liability if—without prior negligence on his own part—the Defendant is confronted with a sudden emergency and acts as an ordinarily prudent person would have acted under the circumstances. Carolina Coach Co. v. Starchia, 219 Va. 135, 141, 244 S.E2d 788 (1978).
Contribution or Implied Indemnity from Third Parties
Virginia is a joint and several liability state. Each tortfeasor is responsible for 100% of judgment amount; however, each can seek contribution against a co-tortfeasor. Va. Code § 8.01-34.
- Virginia recognizes the principle of implied indemnity. Sykes v. Stone & Webster Engineering Corp., 186 Va. 116, 41 S.E.2d 469 (1947).
- For a Plaintiff to successfully claim implied indemnification, he must show that:
- That the indemnitor-indemnitee relationship existed between itself and the proposed indemnitor;
- That it was under some compulsion to satisfy the claim of the original plaintiff;
- That its settlement with the plaintiff in the underlying action was reasonable; and
- The unlawful action of the indemnitor proximately caused the injury to the original plaintiff. Winchester Homes, Inc. v. Hoover Universal, Inc., 39 VA. Cir. 107, 115 (Fairfax County 1996) (quoting Vaughn v. Farrell Lines, Inc., 937 F.2d 953 (4th Cir. 1991).
Accrual for Contribution and Implied Indemnity
A cause of action for contribution or indemnity accrues when the contributee has paid or discharged the obligation; however, an action for contribution may be asserted before the cause of action actually accrues. Va. Code § 8.01-249(5).
Exclusivity of Workers Compensation
The Virginia Worker’s Compensation Bar
If a Plaintiff’s injury arose out of an in the course of his employment, he is limited to the remedies available under the Virginia Workers’ Compensation Act and may not sue his employer or his co-workers in tort. Va. Code § 65.2-307; Combs v. Virginia Elec. & Power Co., 259 Va. 503, 508, 525 S.E.2d 278 (2000).
Seat Belt and Helmet Use
Seat Belt Defense
Although Virginia is a contributory negligence jurisdiction, the seatbelt defense is specifically prohibited. Va. Code § 46.2-1094(D).
Although Virginia is a contributory negligence jurisdiction, a Defendant may not argue that the failure to wear a protective helmet constituted contributory negligence. Va. Code § 46-906.1
Recent Changes to Virginia’s Spoliation Law
Under Virginia Law, a spoliation sanction is only appropriate where a party “intentionally failed to preserve evidence in order to prevent its use in litigation where the party knew or reasonably should have known under the totality of the circumstances that the evidence would be material in a pending or reasonably probably litigation[.]” Emerald Point, LLC v. Hawkins, 294 Va. 544, 558 808 S.E.2d 384, 393(Dec. 28, 2017)
General Damage Caps
Virginia does not have any cap on compensatory damages, except in medical malpractice claims. Va. Code § 8.01-581.15 (currently set at $2.30 million).
Joint and Several Liability
- Virginia is a joint and several liability state. Each tortfeasor is responsible for 100% of judgment amount; however, each can seek contribution against a co-tortfeasor. Va. Code § 8.01-34.
- If one tortfeasor settles with plaintiff, no contribution allowed, although remaining tortfeasor gets a credit for amount already paid. Va. Code 8.01-35.1
Standard of Proof Required for Compensatory Damages
Under Virginia law, damages recoverable in any case must be provable to “a reasonable degree of certainty . . . both as to their nature and in respect of the case from which they proceed.” Barnes v. Graham Virginia Quarries, Inc., 204 Va. 414, 418, 132 S.E.2d 395 (1963).
Virginia’s Collateral Source Rule
Compensation or indemnity received by a tort victim from a source collateral to the tortfeasor may not be applied as a credit against the quantum of damages the tortfeasor owes. Schickling v. Aspinall, 235 Va. 472, 475, 369 S.E.2d 172, 176 (1988).
- Under Virginia law a Plaintiff may recover for “any physical pain and mental anguish he suffered” as the result of a sued upon accident.
- Virginia Courts have not recognized “loss of enjoyment of life” as a separately compensable element of damages in personal injury cases. Bulala v. Body, 239 Va. 218, 389 S.E.2d 670 (1990). Nevertheless, a Plaintiff may still recover damages for “loss of enjoyment of life.” These damages are simply included within the larger purview of mental suffering. Id. (“[T]he term ‘suffering’ can readily be understood by juries to encompass the mental anguish resulting form the loss of enjoyment of life.” (citing McDougald v. Garber, 73 N.Y.2d 246, 536 N.E.2d 372 (1989)).
Life Care Plans
Life care plans are admissible in Virginia. However, like any other expert opinion, life care plans cannot be based upon speculation or unknown variables. See Toraish v. Lee, 797 S.E.2d 760, 763 (Va. April 13, 2017); Vasquez v. Mabini 69 Va. 155, 159, 606 S.E.2d 809, 811 (2011).
Wrongful Death Standing and Damages
- Pursuant to the Virginia Wrongful Death Act, a wrongful death action may only be brought “by and in the name of the personal representative” of the deceased person. Va. Code §8.01-50(B).
- Only a person who is qualified as a personal representative in the Commonwealth of Virginia may bring a wrongful death action on behalf of the deceased. Fowler v. Winchester Med. Ctr, Inc., 266 Va. 131, 134, 580 S.E.2d 816, 817 (2003).
- Any wrongful death action must be brought within two years after the death of the injured person. VA. Code § 8.01-244(B).
- Pursuant to Va. Code § 8.01-52, a verdict in a wrongful death act may include damages for the following:
- Sorrow, mental anguish, and solace, which may include society, companionship, comfort, guidance, kindly offices, and advice of the decedent;
- Compensation for reasonably expected loss of income and services, protection, care and assistance provided by the decedent
- Expenses for the care, treatment, and hospitalization of the decedent incident to the injury resulting in death
- Reasonable funeral expenses; and
- Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.
- There are no statutory limits on wrongful death damages. Miltier v. Beorn, 585 F. Supp. 1086, 1088–89 (E.D. Va. 1988) (“The only limit imposed on the amount of wrongful death damages is what ‘may seem fair and just.’”).
Punitive Damages are Recoverable in Virginia
- Under Virginia law, punitive damages are allowable only where there is misconduct or malice, or such recklessness or negligence as evinces a conscious disregard of the rights of others. PGI, Inc. v. Rathe Prods, Inc., 265 Va. 334, 345–46, 576 S.E.2d 438, 444 (2003).
- Proof of actual malice is not necessary—malice may be inferred from the circumstances. Nevertheless, “no mere inadvertence, mistake or accidental occurrence can be malicious.” Id.
Statuary Cap on Punitive Damages
Punitive Damages are capped at $350,000. Va. Code § 8.01-38.1.
Punitive Damages are Insurable
Under Virginia law, any person may purchase insurance providing coverage from punitive damages arising out of the death or injury of any person as the result of negligence, including willful and wanton negligence. Va. Code § 38.2–227.
Offers of Judgment
Virginia does not have offers of judgement.
- Biomechanical Engineers are qualified to render opinions regarding the forces places upon the human body as the result of car accident. Combs v. Norfolk & W. Ry., 256 Va. 490, 496, 507 S.E.2d 355 358 (1998).
- Biomechanical Engineers are not qualified to opine as to the diagnosis and treatment of physical ailments, conditions, diseases, pain and infirmities. Id. As such, only a medical doctor may be allowed to render an opinion as to the result of forces onto the body.
- For example, in Combs, “Schneck was qualified at trial as an expert in the field of biomechanical engineering and he as competent to render an opinion on the compression forces placed on [Plaintiff’s] spine at the time of the incident. However, Schneck was not a medical doctor and, thus, was not qualified to state an expert medical opinion regarding what factors cause a human disc to rupture and whether [Plaintiff’s] twisting movement to catch the toilet could have ruptured his disc.” Id.
Policy Limits Disclosure
Under Virginia law, the limits of any motor vehicle liability policy or personal injury liability policy which are applicable to the claim must be provided to the Plaintiff. Va. Code § 8.01-417.
May claimant recover general damages if they do not have their own auto-insurance? (“No pay to play”)
Yes. In Virginia, a claimant may recover general damages, even if they do not have auto-insurance.