When an unexpected serious injury is suffered due to another's conduct, the injured person and their loved ones are often faced with significant financial, medical, and other personal hardships that impact their quality of life. Even lawsuit-avoidant individuals realize that suing tortfeasors (persons who are responsible for another's injury) is sometimes the only financially reasonable option to pay for medical costs and expected future care. Personal injury law touches on many areas of liability such as animal ownership, construction, premises, product, medical malpractice , and vehicular liability.
A general understanding of Virginia's laws affecting personal injury cases can help businesses and individuals understand their obligations to others, and manage risk. There are significant differences in how Virginia handles different personal injury issues from most states, including its bordering states and the District of Columbia.
The most apparent unique feature in Virginia personal injury law is that state still adheres to common law principle known as "contributory negligence." Contributory negligence means that if a plaintiff sues another for being negligent, if it is determined that the plaintiff's own negligence contributed whatsoever to her injuries, then the plaintiff cannot recover at all. A simple example would be that if a plaintiff was hit by a speeding car while the plaintiff was jaywalking across a road, the plaintiff would not be able to recover at all. This is very different from most jurisdictions that provide for some form of "comparative negligence," where each party will be assessed a percentage of fault, and will reduce the plaintiff's award by her own degree of fault. There are very few exceptions to contributory negligence defenses, thus it is important to assess a plaintiff's conduct carefully at the beginning of a case.
Due to efforts of tort reformers, Virginia capped punitive damages at $350,000 against all defendants in a single action. This means that if a defendant (or multiple defendants) acted maliciously or wantonly disregarded the rights of others, the maximum amount of damages for such egregious conduct cannot exceed the statutory cap. Governmental entities cannot be assessed any punitive damages.
Government entities in Virginia also enjoy the protections of another common law doctrine known as "sovereign immunity." Sovereign immunity establishes that the government and its employees cannot be sued for torts based on its unique position. However, this doctrine does not invalidate a lawsuit, it just acts as a complete defense if a lawsuit is filed. Sovereign immunity does not protect government entities from claims based on breach of contract theories.
Some Virginia governments have specifically waived the protections of sovereign immunity to a limited extent. The Commonwealth of Virginia (state level government) waived its sovereign immunity protections through the Virginia Tort Claims Act ("VTCA"), which permits a lawsuit to be filed against the state and its employees acting within the scope of employment based on principles of ordinary negligence. The VTCA limits damages to $100,000. Notably, the VTCA generally does not cover employees who do not act within the scope of employment, or who commit an intentional tort and thus immunity and the damages cap do not apply in those cases.
Besides the state's waiver of sovereign immunity, local government immunity is waived in very few cases. Counties generally enjoy immunity from all torts. Cities and municipal corporations are protected from torts that arise out of "governmental functions" such as designing, planning, and constructing public projects. However, these entities can be sued for conduct related to "proprietary" functions such as maintaining sidewalks, and maintaining government-provided public utilities.
Government employee liability requires scrutinizing early assessment because there are many exceptions and situations where a public employee's immunity can be waived or absolutely granted. An important step for an attorney to assess at the beginning of a case involving public employee immunity is whether the employee's claimed tortious conduct is "discretionary" or "ministerial." If the conduct is "discretionary," the employee will receive immunity, but if the act is deemed "ministerial," sovereign immunity protections do not apply. Courts will consider various factors in determining whether the employee's actions were discretionary or ministerial. Very generally, discretionary acts involve an employee's judgment for the particular job functions which the employee is responsible for (ex: police officer's driving vehicle with sirens on in response to police call), while ministerial acts involve employees who perform work that is not essential to the particular job hired for or otherwise not important to the governmental functions of that job (ex: police officer's ordinary driving habits when not responding to an emergency).
Importantly, public employees cannot enjoy the protections of sovereign immunity when their acts are committed in bad faith, rise to the level of gross negligence, are intentional torts, or when committed outside the scope of employment. In those cases, public employees can be completely liable for their actions.
Even if a claim may be meritorious and not be affected by sovereign immunity protections, a plaintiff must be sure to provide a Notice of Claim in time to the government entity otherwise the claim may be barred. The notice must state the nature of the claim, the date, and the place in which the alleged tortious act occurred. Claims against the state must be received by the responsible agency or attorney general within one year from when the tortious event occurred, while claims against cities, counties, and municipal corporations must be filed with the responsible government entity within 6 months from when the tortious event occurred.
See our Medical Malpractice page , which discusses how Virginia law uniquely affects medical malpractice and other related health care area cases.
One of the few pro-plaintiff parts of Virginia law is its treatment of the "collateral source rule." The collateral source rule is a common law doctrine that prohibits evidence of a plaintiff's receipt of compensation from a third-party for his injuries from being considered by the jury or judge. This means that if an insurer, family member, or any other person than the defendant pays for the plaintiff's expenses stemming from the injury, that amount cannot be used to write off the defendant's damages. Many other states have revised their collateral source rule to reduce a plaintiff's damage award based on another person paying for the plaintiff's damages, but Virginia holds true to the collateral source and requires defendants to pay the plaintiff for any injuries caused in full, thus sometimes leading to a "double recovery." The logic to this law is that the courts would rather risk an innocent person injured by another's actions receive a windfall than let a guilty party benefit from the plaintiff's benefit for having insurance or others pay for the defendant's conduct.
Our office knows that the vast majority of personal injury victims seek representation because they need it rather than to pursue frivolous lawsuits as the media and special interest tort reform groups portray so many personal injury cases. Tort cases (not even specifically limited to personal injury) are a very small percentage (6% as of 2011, p. 11 ) of state court cases heard throughout the United States, and are apparently carefully screened by most law offices. It is important for attorneys to carefully review the case to assure it has merit and that the plaintiff has a significant chance at recovering.
The most common question prospective plaintiffs of personal injury cases wonder about is "How much could my personal injury case be worth?" There is no easy answer because there are many factors to take into consideration, and there is a difference in analyzing a case's value pre-trial (settling before trial) against its trial value. Simply put, a case's value pre-trial is often lower than its trial value since settling before trial is often a compromise between the plaintiffs and defendants to reduce the risk of either party losing at trial. Here are some of the factors that can affect the value of a case, and some of which you can calculate on your own before seeing an attorney: