An Overview of Torts in Virginia

 

Use Tort Law to Win Your Personal Injury Case

 

Tort law applies when you suffer an injury and seek monetary recovery from the person or business that caused your injury.

 

Legal injuries are not limited to physical injuries. You may also use tort law to recover monetary damages for mental, emotional, reputational, and economic loss or harm.

 

To recover damages under tort law you must show that the person or business that caused your injury is legally responsible for your loss and harm. And you must prove that you suffered actual damages that are quantifiable.

 

This article explains:

 

  • The applicable standards of care under tort law in Virginia;
  • The types of tort actions in Virginia personal injury law;
  • Available remedies under tort law;
  • The policy behind tort law;
  • The burden of proof in tort law;
  • How tort claims proceed through court;
  • The relationship between torts and other areas of law; and,
  • Common defenses to tort claims;

 

If you have a question about tort law in Virginia, or are looking for an experienced personal injury attorney to help you with an auto accident, products liability, medical malpractice, wrongful death, traumatic brain injury, or birth injury case, call me for a free consultation: 804-251-1620 or 757-810-5614. I help injury victims in Richmond, Virginia Beach, Fairfax, Charlottesville, Roanoke, Newport News, and Harrisonburg, use tort law to recover for their losses.

 

 

What is a Tort? 

 

A tort is an act, error, or omission that causes injury or harm to another person, resulting in civil liability for the person who commits the act or omission.

 

The harm may include physical injury, emotional distress, property damage, financial losses, invasion of privacy, or deprivation of civil rights.

 

What is Tort Law? 

 

Tort law refers to the statutes, procedural rules, and common law (judicial precedent) applicable to civil lawsuits seeking relief for injury or loss caused by others.  

 

In tort law, the injured person files a lawsuit seeking compensation from the person, business, or government entity that caused the harm. 

 

The injured party is called the plaintiff or claimant.

 

The person or organization whose acts or omissions caused the plaintiff’s losses is called the tortfeasor or defendant. 

 

The parties to the lawsuit (plaintiff and defendant) gather and develop evidence that will help them win the case or negotiate a favorable settlement under tort law. 

 

Tort Remedy Goals: The Policies That Serve As The Foundation of Tort Law

 

Tort law has several purposes, some relating to the specific injury and others that address social policy concerns. 

 

These purposes include:

 

Principle of Compensation

 

Tort law recognizes that you should receive compensation when you are hurt because someone else violated the duty of care owed to you. 

 

This compensation is meant to restore you to your pre-injury condition.

 

Deterring Avoidable Injuries and Harmful Conduct by Punishing Wrongdoers

 

Tort law tries to reduce avoidable injuries by forcing those with risky behavior to change how they act to avoid paying monetary damages.

 

In turn, changing behavior (such as making safer products or driving more carefully) makes society safer.

 

This deterrence goal is why most tort actions in Virginia and other states require a showing of fault. Punishing a person who acted safely but still caused harm will not change behavior.

 

Virginia does, however, impose strict liability in some specific situations involving abnormally hazardous actions. Other states also make defendants strictly liable for certain conduct (including product liability claims).

 

Determining Rights and Enforcing the Rule of Law

 

Tort law helps establish the rules of conduct we must live by (including individuals and businesses) and our rights someone violates those rules.

 

Preventing Violence and Unlawful Retaliation

 

Tort actions give you a legal remedy against the person or business that caused you loss.

 

This remedy’s availability helps deter and reduce retaliation or violent behavior through self-help methods.

 

Efficiently Spreading the Costs of Accidents Across Society

 

Tort law aims to reduce and spread the risk and costs of accidents across society – in a just and fair manner.

 

Torts achieve this purpose in two ways:

 

First, tort laws encourage behavior that avoids accidents that are not worth their costs (in terms of medical treatment, pain and suffering, wage loss, and disability).

 

Second, tort laws spread costs when society cannot avoid an accident because doing so is too costly. For example, a manufacturer might be unable to add every safety feature to a helpful machine because these features are cost-prohibitive or reduce the machine’s usefulness.

 

Important Issues in Tort Law

 

There are four issues you and your attorney must research and analyze before bringing a tort action in Virginia:

 

  • Applicable Standard of Care: There are three standards of care under tort law in Virginia. A person may be liable for injuries you have suffered if he (1) acted intentionally to cause you harm, (2) acted negligently and caused you harm, or (3) conducts activities for which strict liability is imposed.

 

  • Is the Injury Work-Related?: Workers comp is the sole remedy for injuries suffered on the job. Traditional tort law principles do not apply if you were hurt at work or diagnosed with an occupational illness. In some cases you may have both a tort action against the third-party that caused your injuries and a workmans comp claim.

 

  • Appropriate Causes of Action: Each of the three standards of care provides multiple causes of action under tort law. You and your attorney should evaluate each cause of action and determine which you can prove.

 

  • What Remedies are Available? Proving that someone caused you harm is not enough to win a tort claim. You must also prove that the other person’s conduct caused you monetary damages. Expert witness testimony is sometimes required to prove actual damages.

 

Still not sure if you have a cause of action? Learn more by reading my article – Do I Have a Personal Injury Case?

 

Types of Torts in Virginia: List of Causes of Action

 

There are many tort causes of action available to you.

 

Attorneys divide these tort claims into several categories: Intentional Torts, Negligence, Strict Liability, Reputation-Based Torts, Property Torts, Nuisance, and Workers Compensation.

 

Intentional Torts

 

An intentional tort refers to a category of torts describing injury or harm from the tortfeasor’s deliberate act. 

 

The tortfeasor either meant to cause harm or should have foreseen that the act would hurt another (physically, emotionally, or financially). 

 

Intentional torts include: 

 

Abuse of Process

 

A person who uses a legal process or legal proceedings to get a result that is not the purpose for which the law intended can be held liable for the tort of abuse of process. Put another way – it is using a legal process to gain an unfair advantage over another. 

 

Assault and Battery

 

A person is liable for the tort of assault if they intentionally act to make another person believe an immediate harmful or offensive contact will occur. 

 

  • Battery: A person is liable for the tort of battery if he intended to cause a harmful contact with another person’s body and that contact occurred.

 

  • False Imprisonment: The tort of false imprisonment occurs when a person completely confines another against his or her will and the person being confined knows that he or she is confined. Usually it occurs when a person physically restrains another.

 

  • Assisted Suicide: Virginia Code Section 8.01-622.1 creates a cause of action against “any person who knowingly and intentionally, with the purpose of assisting another person to commit or attempt to commit suicide, (i) provides the physical means by which another person commits or attempts to commit suicide or (ii) participates in a physical act by which another person commits or attempts to commit suicide.”

 

  • Intentional Infliction of Emotional Distress: Virginia recognizes the tort of intentional infliction of emotional distress; however, this tort is disfavored generally. You must show that the defendant’s action was not only intentional but also outrageous and intolerable to prevail on this claim. And that the defendant’s action resulted in severe emotional distress.

 

Tort of Negligence

 

Negligence is the most flexible of all torts because it is based on a reasonableness standard. And this standard varies depending on the judge or jury deciding the case.

 

To win your cause of action based on negligence you must show:

 

  • That you were owed a duty of care;

 

  • That the other person or persons breached that duty of care;

 

  • That the breach of duty caused your injury; and,

 

  • That you suffered compensable damages resulting from the breach of duty.

 

Specific negligence torts include the negligent infliction of emotional distress, legal malpractice, and medical malpractice.

 

Strict Liability Torts

 

There are some situations where Virginia tort law declares that a person may be held liable for damages regardless of fault. These are known as strict liability torts.

 

You may have a tort action based on strict liability if you suffer damages caused by:

 

  • Ultrahazardous activities such as blasting (i.e., the use of explosives)

 

  • Fires caused by railroad engines

 

Reputation-Based Torts

 

Reputation-based torts differ from intentional torts and negligence-based torts in that they involve intangible injuries (i.e., injuries that cannot be seen). Reputation-based torts, also called dignity torts, cause harm to reputation. They include:

 

  • Defamation: Defamation is a false statement of fact that is published and that causes injury to the subject’s reputation. When the false statement of fact is published in writing, you have a claim for libel. When the false statement of fact is spoken, you have a claim for slander. Virginia treats these causes of action the same.

 

  • Defamation Per Se: Virginia recognizes that some statements and publications constitute defamation per se. These are statements so outrageous that they are considered defamatory automatically. A false statement is considered defamation per se if it: (1) hurts you in your trade or profession, (2) implies that you have a contagious disease, (3) attributes to you the commission of a criminal offense involving lying, cheating, or stealing, or (4) attributes to you unfitness to perform the duties of his or her job.

 

  • Unauthorized Use of Name or Picture of any Person: Virginia Code Section 8.01-40 provides a cause of action to any person whose name, portrait, or picture is used without having given written consent. Punitive damages are available in some cases.

 

  • Computer Invasion of Privacy: Virginia Code Section 18.2-152.5 makes it illegal for a person to use a computer or computer network to intentionally examine without authority any employment, salary, credit, or any other financial or identifying information of another. You may use this criminal statute to pursue a tort claim.

 

Nuisance

 

Often considered a cause of action involving injuries to property, the tort of nuisance may apply if you have suffered physical or mental personal injury.

 

Black’s Law Dictionary has defined nuisance as “that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, either real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction of or injury to the right of another or of the public, and producing such material annoyance, inconvenience, discomfort, or hurt, that the law will presume resulting damages.”

 

And Virginia courts have stated that the tort of nuisance extends to anything that endangers life or health.

 

There are both public and private nuisance actions. The elements you must prove differ depending on who the defendant is.

 

Often negligence and nuisance are pled together. For example you may plead the tort of nuisance when you are concerned that a specific rule that applies to negligence claims – such as sovereign immunity – may defeat an action based solely on negligence.

 

Workers Compensation

 

If you suffer an injury by accident arising out of and in the course of your employment, or contract an occupational disease, then workers compensation is your exclusive remedy.

 

A claim for workers compensation differs from a claim based in tort in several ways.

 

First, the Workers Compensation Commission has jurisdiction over claims for workers compensation benefits. The Commission hears and reviews evidence, then issues a decision.

 

Traditional tort actions are filed in General District Court, Circuit Court, or Federal District Court depending on where the parties are located and the amount of damages sought. A judge or jury listens and reviews the evidence at trial, then issues a decision.

 

Second, the amount of damages available for your work-related injuries is limited to specific benefits defined by statute. These include: lifetime medical benefits, temporary total disability and temporary partial disability payments, permanent partial disability benefits, vocational rehabilitation services, and mileage and transportation reimbursement. You may also negotiate a workers compensation settlement.

 

In a personal injury action based on tort you ask for a lump sum amount of money for your damages. There is no limit on how much you may ask for and be awarded, except in medical malpractice actions. The amount you actually collect, however, may be limited by available insurance coverage or the amount of assets the defendant has.

 

Remedies Available Under Tort Law

 

Once you show that the defendant is liable under a cause of action in tort law, you must show how the defendant can remedy its unlawful behavior through the payment of monetary damages.

 

There are three types of monetary damages under tort law: nominal, compensatory, and punitive damages.

 

Nominal Damages

 

Nominal damages are often available in claims based on the intentional torts of assault and battery, where there may have been no actual damages suffered.

 

The Supreme Court of Virginia has stated:

 

Nominal damages “are those recoverable where a legal right is to be vindicated against an invasion that has produced no actual present loss of any kind or where, from the nature of the case, some injury has been done the amount of which the proofs fail to show. The law infers some damage from the … invasion of a right; and if no evidence is given of any particular amount of loss, it declares the right by awarding what it terms ‘nominal damages.'”

 

Compensatory Damages

 

Compensatory damages are meant to “recompense for loss or injury actually sustained.” They include payment for:

 

  • Past medical expenses
  • Future medical expenses
  • Loss of income
  • Loss of earning capacity
  • Physical pain and suffering
  • Mental anguish
  • Permanent disability
  • Loss of consortium

 

Punitive Damages

 

Punitive damages are meant to protect the public by punishing the defendant and warning others against the type of harmful conduct the defendant committed.

 

Punitive damages are not available when the defendant is guilty of simple negligence. The defendant must have “acted wantonly, oppressively, or with such malice as to evince a spirit of malice or criminal indifference to civil obligations. Wilful or wanton conduct imports knowledge and consciousness that injury will result from the act done.”

 

A motor vehicle accident case where the defendant driver was drunk may lead to an award of punitive damages, especially if the defendant driver is a repeat offender.

 

What is the Burden of Proof in Tort Law?

 

A tort action is a civil action. And civil actions are easier to win that criminal cases.

 

You must prove your claim by a preponderance of the evidence. This means you prove that it’s more likely than not that the defendant acted intentionally or negligently – and that you suffered the claimed damages.

 

How Do Tort Claims Proceed Through Court?

 

Often the parties to a tort claim try to negotiate a resolution before suit is filed. This is known as pre-litigation negotiation.

 

If the parties cannot reach a resolution, then you – the injured person – file a complaint in the appropriate court. There may be several courts that are appropriate. Your attorney will select the one most advantageous to you.

 

After suit is filed in your tort claim, the parties will conduct discovery to learn more about the case and develop the evidence.

 

Either party may file preliminary motions addressing the evidence and deadlines in the case. In some cases a motion for summary judgment may be appropriate.

 

The judge assigned to your case may order the parties to participate in mediation. The goal of mediation is to resolve the tort claim without trial.

 

If mediation is unsuccessful then you will have either a bench or jury trial to decide the case.

 

Relationship Between Tort Law and Other Areas of Law

 

Tort Law and Contract Law

 

Both tort law and contract law involve a breach of duty.

 

Contract law provides a remedy for the breach of a promise – either oral or written. Tort law provides a remedy for harm not based in contract.

 

Those of you who have suffered personal injury may have causes of action that are based in both contract and tort law.

 

For example, a motor vehicle accident claim is based in tort. But an uninsured motorist claim, which you may have if the person who caused your motor vehicle accident does not have insurance, lies in contract law.

 

Similarly, you may have both negligence and breach of warranty claims if bring a product liability lawsuit based on defective machinery.

 

Whether your cause of action lies in tort or contract governs the appropriate statutes of limitations, the available damages, and the elements you must prove.

 

Tort Law and Criminal Law

 

There is overlap between criminal and tort law. For example, assault and battery are both crimes and torts.

 

Criminal actions are pursued by the state to punish socially harmful conduct. The goal is to punish wrongdoers, not compensate victims.

 

The violation of a criminal statute often creates the presumption of negligent conduct. This allows the victim of the crime to bring a tort action.

 

Common Defenses to Tort Claims

 

A defendant can raise several defenses against your claim based on intentional tort, negligence, or strict liability. Common defenses include:

 

 

  • Contributory Negligence: Virginia is one of a handful of states that applies the contributory negligence doctrine. Under this doctrine the defendant is not responsible for your damages if your negligence contributed, in part, to the harm.

 

  • Assumption of Risk: The defendants may raise an assumption of risk defense if you were aware of the risk posed by the defendant or his conduct and voluntarily accepted it. There are three types of assumption of risk defenses: (i) express assumption of risk; (ii) primary assumption of risk; and, (iii) secondary, or implied, assumption of risk.

 

  • Consent: Consent is a possible defense to intentional tort actions based on assault and battery.

 

  • Self-Defense: A person may use physical force to defend himself against an attack, so long as the force is limited to that which is reasonable under the circumstances. This is a potential defense to assault and battery torts.

 

  • Defense of Others

 

  • Defense of Property

 

 

 

For more information on this topic, read my article Defenses to Negligence Claims and Personal Injury Actions in Virginia.

 

Your Attorney for Personal Injury Torts in Virginia

 

Tort law may provide several remedies if another person’s actions caused you harm. But obtaining monetary damages isn’t easy.

 

Tort law often leads to litigation and trial. This means tort law requires knowledge of the rules – both the Rules of Civil Procedures and the Rules of Evidence. If you try to handle your case without knowledge of the rules, you may lose on procedural grounds.

 

To learn more about your rights under Virginia tort law and the available causes of action, call me for a free consultation: 804-251-1620 or 757-810-5614. I’ll explain all available options and help you recover fair damages for your physical and mental injuries.

Corey Pollard
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