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:
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.
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.
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 law has several purposes, some relating to the specific injury and others that address social policy concerns.
These purposes include:
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.
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).
Tort law helps establish the rules of conduct we must live by (including individuals and businesses) and our rights someone violates those rules.
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.
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.
There are four issues you and your attorney must research and analyze before bringing a tort action in Virginia:
Still not sure if you have a cause of action? Learn more by reading my article – Do I Have a Personal Injury Case?
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.
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:
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.
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.
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:
Specific negligence torts include the negligent infliction of emotional distress, legal malpractice, and medical malpractice.
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:
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:
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.
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.
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 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 are meant to “recompense for loss or injury actually sustained.” They include payment for:
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.
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.
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.
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.
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.
A defendant can raise several defenses against your claim based on intentional tort, negligence, or strict liability. Common defenses include:
For more information on this topic, read my article Defenses to Negligence Claims and Personal Injury Actions 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.