Statutes Affecting Liability - Grenier Law Group Claims Act, for actions brought against the ... In...
Transcript of Statutes Affecting Liability - Grenier Law Group Claims Act, for actions brought against the ... In...
STATUTES WHICH AFFECT LIABILITY EVALUATION
In Virginia, statutes make the tort world go round. What is my deadline for filing suit? Is
there a discovery rule? Is there some sort of tolling of my statute of limitations? What is my
deadline for giving notice of my intention to file suit? Are there statutory limitations or caps on
what my client can recover? Is the location where the tort occurred relevant to my case? Can I
sue the Commonwealth for a tort? Can I sue a municipality for a tort? How much can I sue the
government for? The list of questions goes on and on.
In this presentation, we will explore these and related topics. Bear in mind that we are
limiting our discussion to personal injury (including wrongful death and survival) related topics –
excluding any truly substantive discussion of medical malpractice ‐‐ so you should not
automatically assume the applicability of the statutes discussed herein to any other actions
(i.e., breach of contract, worker’s compensation, etc.) unless specifically stated. We are also
excluding from discussion the particular statutes dealing with counterclaims and crossclaims.
Instead, we are focusing solely on the evaluation and initiation of personal injury claims under
the laws of the Commonwealth of Virginia, with the hopes that you will come away from the
presentation with a good grasp of the “meat‐and‐potatoes” necessary for the personal injury
practitioner….and the avoidance of the pitfalls that can trap the unwary.
1. STATUTES OF LIMITATION AND REPOSE
Missing a statute of limitations is almost per se legal malpractice – I caveat it with the
word “almost” solely because the putative plaintiff would have to prove proximate cause ‐‐ and
may also expose the attorney to a bar complaint for an ethics violation. This is most certainly
not a headache that any of us wants or needs. Not to mention an increase in malpractice
insurance premiums, hiring counsel to defend a bar complaint, and a distraction from the actual
practice of law. It also does not help your reputation to be sued publicly for something so easily
avoidable as missing a deadline – judges certainly do not look kindly on such attorneys, and it
may “contaminate” your standing in that particular court without your even knowing or
realizing it.
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Thus, familiarity with the particular statutes applicable to your client’s potential claims is
a sine qua non to the successful practice of law. In today’s technological society (where they
even have “iPads for Lawyers” seminars!), tickler systems, reminders, electronic calendars, iPad
calendars, iPhone calendars, Needles, Time Matters, and a host of other computer‐based
calendar programs should render missing a deadline a dinosaur of the past. But the old adage
“Garbage‐In‐Garbage‐Out” means that unless an attorney knows the proper deadline to enter
into his/her calendar, he cannot be expected to comply with it.
Generally speaking, and unless otherwise specified by Virginia statute, every action for
personal injuries, whatever the theory of recovery, shall be brought within two years after the
cause of action “accrues.” Va. Code Ann. § 8.01‐243.A. When is an action deemed to “accrue?”
Under Va. Code Ann. § 8.01‐230, the right of action shall be deemed to accrue – and the
prescribed limitation period begin to run – from the “date the injury is sustained” and not when
the “resulting damage is discovered.” Id. Thus, the law is clear that with respect to personal
injury actions in general, Virginia does not follow a discovery rule. However, as discussed below,
there are certain exceptions to this general definition of “accrue.”
There are few caps on recoverable damages in tort actions in Virginia. Most notably,
there is a $350,000.00 punitive damages cap. Va. Code Ann. § 8.01‐38.1. The cap has been held
to be constitutional. See, Wackenhut Applied Technologies Ctr., Inc. v. Sygnetron Protection
Sys., 979 F.2d 980 (4th Cir. 1992). The cap applies to the action as a whole, and not to each
defendant. Al‐Abood v. El‐Shamari, 217 F.3d 225, 2000 U.S. App. LEXIS 15437 (4th Cir. 2000).
There is also a cap on recovery in medical malpractice cases, which had previously been
capped, as of July 1, 2008, at $2,000,000.00. (Beginning with actions accruing after August 1,
1999, having a maximum recovery of $1,500,000.00, there was an annual increase of
$50,000.00 per year thereafter, a $75,000.00 per year increase in July 2007 and 2008,
culminating in a maximum recovery of $2,000,000.00 for actions accruing after July 1, 2008).
See, Va. Code Ann. § 8.01‐581.15. However, in 2011, the Virginia General Assembly amended
that statute to continue annual increases, culminating in a cap of $3,000,000.00 for incidents
occurring after July 1, 2031. Id.
As discussed herein, there is a cap of $100,000.00 on claims brought under the Virginia
Tort Claims Act, for actions brought against the Commonwealth based solely upon the
negligence of a Commonwealth employee. However, as will be discussed, there are narrow
exceptions to this cap, based upon the gross negligence of a Commonwealth employee, which
can give rise to a potential $2,000,000.00 per claim limitation.
Whenever you are prosecuting a personal injury action against multiple defendants, you
can feel comfortable settling with fewer than all of the defendants and preserving your right to
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continue your claims against the remaining defendant(s) without worrying about a pro rata
reduction of any subsequent verdict. Virginia has, conveniently, enacted a joint tortfeasor
statute, which permits you to settle with one (or fewer than all) defendant(s), the effect of
which is strictly a pro tanto (i.e., dollar for dollar) reduction of a subsequent verdict by the
amount of the prior settlement(s). The release shall not discharge any other person from
liability unless its terms so provide – of course you would never so provide, if you want to
continue against the remaining defendant(s). The release also serves to discharge the person to
whom it is given from all liability for contribution to any other person liable for the same injury.
The released person is also prohibited from recovering by way of contribution from another
person whose liability is not extinguished by the release or covenant not to sue. See, Va. Code
Ann. § 8.01‐35.1.
EXCEPTIONS TO THE GENERAL TWO YEAR RULE
There are some limited exceptions to the strict two year statute of limitations in
personal injury actions.
CERTAIN MEDICAL MALPRACTICE ACTIONS
Under Va. Code Ann. § 8.01‐243.C., the two year limitations period in medical
malpractice actions shall be extended as follows:
1. In cases arising out of a foreign object having no therapeutic or diagnostic
effect being left in a patient’s body, for a period of one year from the date the object is
discovered or reasonably should have been discovered; and
2. In cases in which fraud, concealment or intentional misrepresentation
prevented discovery of the injury within the two year period, for one year from the date the
injury is discovered or, by the exercise of due diligence, reasonably should have been
discovered. Id.
3. In a claim for the negligent failure to diagnose a malignant tumor or
cancer, for a period of one year from the date the diagnosis of a malignant tumor or cancer is
communicated to the patient by a health care provider, provided the underlying act or omission
was on or after July 1, 2008. (If prior to July 1, 2008, the statute of limitations that existed prior
to that date shall apply.)
The extension is not infinite. There is a statute of repose which caps the limitations
period for these claims at ten years from the date the cause of action accrues; however, the
tolling provisions of Va. Code § 8.01‐229.A.2 (discussed below), relating to persons under a
disability and infants, would still apply. See, Va. Code Ann. § 8.01‐243.C.
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MINORS’ ACTIONS FOR MEDICAL MALPRACTICE
Other than the three above‐described limited situations wherein the statute of
limitations for medical malpractice actions is extended (Va. Code Ann. § 8.01‐243), and
notwithstanding the tolling provisions of Va. Code Ann. § 8.01‐229.A (regarding minors and
incapacitated persons), Virginia adheres to a rather strict – and puzzling – statute of limitations
for minors in all other types of medical malpractice actions.1 Under Va. Code Ann. § 8.01‐243.1,
any medical malpractice cause of action accruing after July 1, 1987, on behalf of a person who
was a minor at the time the cause of action accrued for personal injury or death against a
health care provider, shall be commenced within two years of the date of the last act or
omission giving rise to the cause of action (described as the “continuing treatment doctrine.”).
However, if the minor was less than eight years old at the time of the occurrence of the
malpractice, he shall have until his tenth birthday to commence an action. Any minor who is ten
years or older on or before July 1, 1987, has no less than two years from that date within which
to commence an action. Id.
PARENTS’ CLAIM FOR REIMBURSEMENT OF MINOR’S MEDICAL EXPENSES
Under Va. Code Ann. § 8.01‐36, in an action arising out of a tort to an infant, any parent
or guardian may file a separate action to recover the related medical expenses, and they may
be joined for trial at the same time. Under Va. Code Ann. § 8.01‐243.B, such an action by the
parent or guardian must be brought within five years after the cause of action accrues. Id.
CERTAIN SEXUAL ABUSE CLAIMS
Just last year, in 2011, the Virginia General Assembly finally decided to follow the lead of
many other states by enacting a substantially lengthy statute of limitations for claims arising
out of sexual abuse committed against infants and incapacitated persons. Under Va. Code Ann.
§ 8.01‐243.D, and regardless of the theory of recovery, such sexual abuse actions shall be
brought within twenty years after the cause of action accrues. Interestingly, the statute
references subsection 6 of Va. Code § 8.01‐249, which in turn defines “accrual” for such sexual
abuse actions as follows: the cause of action accrues (and the statute therefore begins to run)
once the disability of infancy or incapacity is removed (except in the case of an emancipated
minor) – the statute references Va. Code § 8.01‐229, which addresses tolling/suspending of
statutes of limitations. (Tolling and suspending are discussed separately below.)
1 This also excludes the Virginia Birth‐Related Neurological Injury Compensation Act, as it is outside the scope of this presentation.
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Moreover, under Va. Code § 8.01‐243.D, even if the disability of infancy or incapacity is
removed, if the fact of the injury and its causal connection to the sexual abuse is not then
known, then the claim is deemed to accrue “when the fact of the injury and its causal
connection to the sexual abuse is first communicated to the person by a licensed physician,
psychologist, or clinical psychologist.” Id.
At the risk of stating the obvious, these statutes open the door to childhood church sex
abuse claims, among others. Prior to the passage of the statute, I unfortunately had to turn
away many such cases given the running of the previous statute, which was basically age of
majority plus two years, absent repressed memory or a lack of diagnosis by the delineated
category of professional.
DEFAMATION
Under Virginia law, “all words shall be actionable which from their usual construction
and common acceptance are construed as insults and tend to violence and breach of the
peace.” Va. Code Ann. § 8.01‐45. However, in defense of a defamation claim, the defendant
may justify his words by proving that his spoken or written words were true. He may also, after
giving notice in writing of his intention to do so, and in mitigation of damages, introduce into
evidence that he made or offered to the plaintiff an apology to the plaintiff for the defamation
before the commencement of the action (or as soon afterwards as he had an opportunity of
doing so if the action was commenced before he had a chance to do so). Va. Code Ann. § 8.01‐
46. Thus, if you are considering a defamation action, beware of the apology! It may come back
to haunt you on damages, when the judge instructs the jury under this statute.
There is also fairly strict immunity for owners, licensees, or operators of radio and
television broadcasting stations or networks, for defamatory statements published during a
broadcast by someone other than the owner, licensee, operator, or their agents or employees,
unless the plaintiff can prove a failure to exercise ordinary care. Additionally, these categories
of defendants have absolute immunity from actions arising out of defamatory statements
broadcast by or on behalf of a candidate for public office. Va. Code Ann. § 8.01‐49.
In today’s world of the all‐pervasive Internet, the Virginia General Assembly has seen fit
to pass legislation protecting providers or users of an interactive computer service from
liability. By statute, no such provider or user shall be treated as the publisher or speaker of any
information provided to it by another information content provider. Moreover, no such
provider or user shall be liable for any action voluntarily taken by it in good faith to restrict
access to or availability of, material that it considers obscene, lewd, lascivious, expressly violent,
harassing or intended to incite hatred based on race, religion, color or national origin, even if
constitutionally protected. Nor shall such a provider or user be liable for any action taken to
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enable or make available to information content providers or others, the technical means to
restrict access to information provided by another information content provider. Va. Code Ann.
§ 8.01‐49.1.
Every action for libel, slander, insulting words, or defamation shall be brought within
one year after the cause of action accrues. Va. Code Ann. § 8.01‐247.1.
ACTIONS BY CONFINED PERSONS/EXHAUSTION
Even a quick read of the various Virginia statutes governing actions by prisoners reveals
a philosophy of strictly limiting those individuals’ rights to bring lawsuits. Under Va. Code §
8.01‐243.2, no person confined in a state or local correctional facility shall bring or have
brought on his behalf any personal action relating to the conditions of his confinement “until all
available administrative remedies are exhausted.” Such an action brought by or on behalf of
such a person must be brought within the later of (1) one year after the cause of action accrues,
or (2) six months after all administrative remedies are exhausted. Id.
Pro se prisoners have it even worse. Tucked at literally the very end of Volume 2 of the
Virginia Code (Section 8.01) is the “Virginia Prisoner Litigation Reform Act.” Va. Code Ann. §§
8.01‐689 et seq. It applies to all pro se prisoners incarcerated in a state or local correctional
facility (or operated under the Corrections Private Management Act), bringing a civil action for
money damages under laws of the Commonwealth, or for injunctive, declaratory or mandamus
relief. There are very strict requirements for a prisoner to qualify to proceed in forma pauperis.
Va. Code Ann. §§ 8.01‐691‐692.
The Act severely restricts a prisoner’s ability to have oral arguments on motions (“only
at the request of the court”); no prisoner may request subpoenas or discovery until the court
has ruled on demurrers, pleas, or motions to dismiss. If a prisoner’s civil action does proceed
past the initial motions phase, the court shall require the prisoner seeking discovery to
“demonstrate that his requests are relevant and material to the issues in the case.” Va. Code
Ann. § 8.01‐695. The court can basically control the scope of the prisoner’s subpoenas. Id.
Notwithstanding the provisions of Va. Code Ann. § 8.01‐420, which prohibits the use of
depositions to support summary judgment absent consent of all parties, under Va. Code Ann. §
8.01‐696, in pro se prisoner cases, a party may move for summary judgment based upon the
pleadings, any admissions, and supporting affidavits. Finally, any of the prisoner’s records,
including medical records, maintained by the Department of Corrections, are deemed the
property of the Department, and may be shared with counsel representing defendants in such
actions. Va. Code Ann. § 8.01‐697.
ACTIONS RECOMMENCED AFTER A NONSUIT
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Virginia has the unique concept of a nonsuit. Pursuant to Va. Code Ann. § 8.01‐380, a
party may “nonsuit,” or dismiss without prejudice, his claim, so long as he does so before a
motion to strike the evidence has been sustained or before the jury retires to deliberate or
before the action has been submitted to the court for decision. Id. After a nonsuit no new
proceeding on the same cause of action or against the same party shall be filed in any court
other than that in which the nonsuit was taken, unless that court lacks jurisdiction, or it is not a
proper venue, or other good cause is shown for proceeding in another court, or when the new
proceeding is instituted in federal court. Id.
After a nonsuit, the statute of limitations for the refiling of the action is set forth in Va.
Code Ann. § 8.01‐229.E.3. In the event of a nonsuit, the statute of limitations with respect to
such action shall be tolled by the nonsuited action, and the plaintiff may recommence his action
within six months of entry of the order of nonsuit, or within the original limitation period, or
within the limitation period set forth in Va. Code Ann. § 8.01‐229.B.1, whichever is longer.
Section 8.01‐229.B.1 provides that if a person entitled to bring a personal action dies with no
such action pending before the expiration of the limitation period for commencing the action,
then the decedent’s personal representative may commence the action before the expiration
of the limitation period including the limitation period provided in Section 8.01‐229.E.3, or
within one year of his qualification as personal representative, whichever occurs later.
2. OTHER UNIQUE CAUSES OF ACTION
SURVIVAL/WRONGFUL DEATH
To suggest that Virginia recognizes “survival” actions in the traditional sense of the word
is a bit of a misnomer. While jurisdictions such as Maryland and the District of Columbia each
recognize both a survival and a wrongful death action arising out of a death caused by the
tortious act of another, Virginia does not. In aberration of the common law, Virginia does
recognize a survival action, but only if the cause of action arises from an injury which did not
cause the death of the injured person. In other words, assume that a person suffers injury at the
hands of another. This gives rise to a tort claim for that injury, whether based in negligence,
gross negligence, willful and wanton misconduct, etc. If the injured person dies after the cause
of action for that injury accrues, but dies of causes unrelated to the injury, then the action
would proceed as a survival action under Va. Code Ann. § 8.01‐25. In other word, it is brought
solely on behalf of the estate of the decedent, i.e., the pre‐death accrued cause of action
survives the person’s death.
However, if the tortious injury itself was the cause of the person’s death, then the action
is one for wrongful death – and wrongful death only – under Va. Code Ann. § 8.01‐50. (There is
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no survival action.) It is brought by and in the name of the personal representative of the
decedent and within the two year statute of limitations described in Va. Code Ann. § 8.01‐244.
The statute seems to contemplate that one can be injured, live for some period of time
without having commenced an action within the two year statute for personal injuries (§ 8.01‐
243.A), die as a result of the injuries, and then a two year statute of limitations starts to run
from the date of death. This effectively extends the statute past two years from date of injury,
but clearly the General Assembly views the date of death as the date on which a “new”
wrongful death cause of action first accrues.
HAZING
More and more, we read in the news about the tragic deaths of college students
subjected to hazing, whether it be from the repeated beating of a drum major on a bus, forced
alcohol intoxication, or a host of other barbaric rituals wrought upon the young fraternity
pledge. In what can only be described as a limited departure from the longstanding affirmative
defenses of contributory negligence and assumption of the risk, Virginia has passed a criminal
and civil hazing statute, codified at Va. Code Ann. § 18.2‐56, which reads in toto:
§ 18.2‐56 Hazing unlawful; civil and criminal liability; duty of school, etc., officials.
It shall be unlawful to haze so as to cause bodily injury, any student at any
school, college, or university.
Any person found guilty thereof shall be guilty of a Class 1 misdemeanor.
Any person receiving bodily injury by hazing shall have a right to sue, civilly,
the person or persons guilty thereof, whether adults or infants.
The president or other presiding official of any school, college or university
receiving appropriations from the state treasury shall, upon satisfactory proof
of the guilt of any student hazing another student, sanction and discipline such
student in accordance with the institution's policies and procedures. The
institution's policies and procedures shall provide for expulsions or other
appropriate discipline based on the facts and circumstances of each case. The
president or other presiding official of any school, college or university
receiving appropriations from the state treasury shall report hazing which
causes bodily injury to the attorney for the Commonwealth of the county or
city in which such school, college or university is, who shall take such action as
he deems appropriate.
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For the purposes of this section, "hazing" means to recklessly or intentionally
endanger the health or safety of a student or students or to inflict bodily injury
on a student or students in connection with or for the purpose of initiation,
admission into or affiliation with or as a condition for continued membership
in a club, organization, association, fraternity, sorority, or student body
regardless of whether the student or students so endangered or injured
participated voluntarily in the relevant activity.
(Code 1950, § 18.1‐71; 1960, c. 358; 1975, cc. 14, 15; 2003
(emphases added). As you can see, the statute itself creates the private civil cause of action,
and it is wholly irrelevant that the injured individual participated voluntarily in the activity. We
are currently handling a tragic hazing death case in Virginia where we have asserted negligence
per se against multiple fraternity brothers involved in the incident, who pled guilty to criminal
violation of the statute.
While not specified, presumably the two year statute of limitations under the “catch‐all”
provisions of Va. Code Ann. § 8.01‐248 would apply to hazing actions involving surviving injured
individuals, and the two year statute of limitations for wrongful death actions under Va. Code
Ann. § 8.01‐244 would apply to hazing actions involving death of the injured individual.
SPACE FLIGHT LIABILITY AND IMMUNITY ACT
Yes, Virginia actually has a “Space Flight Liability and Immunity Act.” Va. Code § 8.01‐
227.8 et seq.. It was passed in 2007, and expires on July 1, 2013. It provides that a “space flight
entity” is not liable for a participant injury resulting from the risks of “space flight activities,”
provided that the participant has been informed of the risks of space flight activities as required
by federal law, and has given informed consent. However, the immunity does not apply in the
presence of gross negligence evidencing willful or wanton disregard for the safety of the
participant, and that act or omission proxcimately causes the injury, or in the presence of
intentionality. Va. Code Ann. 8.01‐227.9.
The Act also gives verbatim the “WARNING AND ACKNOWLEDGMENT” that is required
to be given to and signed by each participant in space flight activities. See, Va. Code Ann. § 8.01‐
227.10.
What constitutes “space flight activities” under this act, you may ask? It refers to
“launch services or reentry services as those terms are defined in 49 USC § 70102.” Va. Code
Ann. § 8.01‐227.8.2 "Launch services" means
2 The Virginia Code is a little behind the times, as 49 USC § 70102 has been recodified as 51 USC § 50902.
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(A) activities involved in the preparation of a launch vehicle, payload, crew (including crew training), or space flight participant for launch; and (B) the conduct of a launch.
51 USC § 50902(6). "Reentry services" means
(A) activities involved in the preparation of a reentry vehicle and payload, crew (including crew training), or space flight participant, if any, for reentry; and (B) the conduct of a reentry.
51 USC § 50902(14).
Surprisingly, there are no reported cases under this statute having a six year shelf life.
This writer had heard a rumor that NASA had moved The Kennedy Space Center from Cape
Canaveral, Florida, to Fairfax, Virginia. (Sometimes these things are so funny that no comment
is required.)
DRUG DEALER LIABILITY ACT
In 2002, the Virginia General Assembly passed the Drug Dealer Liability Act, which
permits a parent or legal custodian to bring an action for damages incurred because of his
child’s unlawful use of a controlled substance while under the age of eighteen against a natural
person age eighteen years or older who sold, administered , furnished, or knowingly
participated in the unlawful distribution of a controlled substance to the child. Va. Code Ann. §
8.01‐227.5. The parent or custodian may recover damages limited to physical and emotional
pain and suffering, the cost of treatment and rehabilitation and medical expenses, proximately
caused by the unlawful use. Law enforcement officers acting in furtherance of an official
investigation (i.e., undercover sting operations and the like), and health care providers acting in
good faith are immune from liability.
Actions under this Act must be brought within two years after the child’s eighteenth
birthday. Va. Code Ann. § 8.01‐227.7.
STALKING
Under Va. Code Ann. § 8.01‐42.3, a victim has a civil cause of action against an individual
who engaged in stalking as defined in criminal statute Va. Code Ann. § 18.2‐60.3. A stalker is
defined as one “who on more than one occasion engages in conduct directed at another person
with the intent to place, or when he knows or reasonably should know that the conduct places
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that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that
other person or to that other person's family or household member.” Id.
The victim may recover compensatory damages, as well as costs and punitive damages.
The action must be filed no more than two years after the most recent conduct prohibited
under the criminal statute. Va. Code Ann. § 8.01‐42.3.C.
INJURIES TO RAILROAD EMPLOYEES
Under Va. Code Ann. § 8.01‐57, intrastate common carriers by railroad shall be held
liable in damages to any of its employees injured or killed while employed by the carrier, if the
injury or death resulted in whole or in part from
1. the wrongful act or neglect of any of its officers, agents, servants, or employees;
or
2. by reason of any defect or insufficiency caused due to its neglect in its cars,
engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.
HOWEVER, there shall be no liability if
1. the employee is injured while engaged in interstate commerce; or
2. the employee is injured in the course of his regular employment and such regular employment does not expose such employee to the hazards incident to the maintenance, use and operation of such railroad.
Va. Code Ann. § 8.01‐57.
In what can only be described as “pure comparative negligence,” when an employee brings an action under this section, his contributory negligence does not bar a recovery, but “the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employee.” Va. Code Ann. § 8.01‐058.
BUT: where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of the employee, no employee shall be held to have been guilty of contributory negligence. Id.
Similarly, in such an action, even if the injured employee had knowledge of the defective or unsafe character or condition of any machinery, ways, appliances, or structures of such carrier, this shall not be a bar to recovery, nor shall the employee be held to have assumed the risk, where violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of the employee. Va. Code Ann. § 8.01‐59.
3. SUSPENSION OR TOLLING OF STATUTE OF LIMITATIONS
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Equally as important as knowing the applicable statute of limitations in any given case in
Virginia, is knowing when the statute is tolled or suspended. The last thing you want to do is to
tell a potential client that you are sorry, but he missed the statute of limitations. The potential
client goes on his (un)merry way and takes no further action, and the true statute then runs.
That spells legal malpractice. Va. Code Ann. § 8.01‐229 sets forth a series of scenarios where
the statute of limitations is tolled or suspended. Again, we are focusing only on those applicable
to personal injury claims. Except as otherwise specifically noted, the following does not trump
the provisions discussed in the foregoing sections – e.g., medical malpractice actions on behalf
of minors must still be brought in accordance with Va. Code Ann. § 8.01‐243.1, which expressly
excludes the tolling provisions of Va. Code Ann. § 8.01‐229.A.
1. For unemancipated infants and incapacitated persons, the action must be
brought within the prescribed limitation period after the disability is removed;3
2. After a cause of action accrues:
a. If an infant becomes entitled to bring such action, the time during
which he is still a minor is not counted as part of the limitations period, except as to any period
during which the infant has been judicially declared emancipated; or
b. If a person entitled to bring the action becomes incapacitated, the
time during which he is incapacitated shall not be computed as part of the limitations period,
except where a conservator/guardian/committee is appointed, who may commence the action
by the later of (i) the expiration of the applicable limitations or (ii) within one year after his
qualification as such;4
3. If a convict is or becomes entitled to bring an action against his
committee, the time during which he incarcerated shall not be counted as part of the
limitations period;5
4. Effect of death of a party:
a. If a person entitled to bring an action, who has not yet done so,
dies before the limitations period runs, an action may be commenced by the personal
representative by the later of (i) prior to the expiration of the limitations period including the
limitations period described in E 3 (for nonsuits) or (ii) within one year after his qualification as
personal representative.6
3 Va. Code Ann. § 8.01‐229.A.1. 4 Va. Code Ann. § 8.01‐229.A.2. 5 Va. Code Ann. § 8.01‐229.A.3. 6 Va. Code Ann. § 8.01‐229.B.1.
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b. If a person against whom an action may be brought dies before
commencement of the action and before expiration of the limitations period, a claim may be
filed against the estate or against the personal representative by the later of (i) before the
expiration of the limitations period or (ii) within one year after his qualification as personal
representative.7
c. If a person against whom an action may be brought dies before
suit papers have been filed, the papers may be amended to substitute the personal
representative as party defendant before the later of (i) expiration of the limitations period or
(ii) within two years after the date the suit papers were filed with the court;8
d. If a personal cause of action against a decedent accrues after his
death, an action may be brought against the personal representative or a claim filed against the
estate by the later of (i) before the expiration of the limitations period or (ii) within two years
after his qualification as personal representative.9
e. If there is an interval of more than two years between the death
of any person in whose favor or against whom a cause of action has accrued or shall
subsequently accrue and the qualification of such person’s personal representative, such
personal representative shall, for purposes of this chapter, be deemed to have qualified on the
last day of such two‐year period.10
4. IMMUNITIES
“Immunity”‐‐‐ a bad word for plaintiff’s attorneys. But the Virginia Code recognizes
many immunities for many different acts, and if you don’t watch out, you may find your claims
being dismissed, accompanied by a not‐so‐nice sanctions award under Va. Code Ann. § 8.01‐
271.1. Below are highlighted a few of the statutory immunities.
a. Immunity for alienation of affection, breach of promise to marry, criminal
conversation, or seduction (where seduction occurred after July 1, 1974). Va. Code Ann. § 8.01‐
220.
b. Immunity for directors, partners, members, managers, trustees, and officers of
tax‐exempt organizations under IRC § 501(c)(3) or § 528 who serve without compensation;
liability is limited to amount of compensation earned during previous 12 months; no immunity
7 Va. Code Ann. § 8.01‐229.B.2.a. 8 Va. Code Ann. § 8.01‐229.B.2.b. 9 Va. Code Ann. § 8.01‐229.B.4. 10 Va. Code Ann. § 8.01‐229.B.6.
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if: (i) willful misconduct or knowing criminal violation; (ii) liability derives from operation of
motor vehicle; (iii) liability derives from violation of fiduciary obligation imposed during
declarant control by § 55.79.74. Va. Code Ann. § 8.01‐220.1:1.
c. Immunity for teacher employed by local school board for acts or omissions
resulting from supervision, care, or discipline of students if within scope of employment and
taken in good faith, unless gross negligence or willful misconduct; no liability arising out of
prompt good faith reporting of bullying or crimes against others to school official in compliance
with procedures (n.b. – does not apply retroactively). Va. Code Ann. § 8.01‐220.1:2.
d. Immunity for members of church, synagogue or religious body from actions
brought solely because of such membership. Va. Code Ann. § 8.01‐220.1:3.
e. Immunity for directors and officers of any entity created to ensure
implementation in Commonwealth of national tobacco trust established to provide payments
to tobacco growers and tobacco quota owners to ameliorate adverse economic consequences
resulting from a national settlement of states’ claims against tobacco manufacturers. Va. Code
Ann. § 8.01‐220.1:4.
f. Immunity for person rendering emergency care or obstetrical services, such as at
scene of accident, fire, or any life‐threatening emergency. Immunity from emergency
obstetrical care in the absence of gross negligence. Review this statute carefully, as it has a
litany of other immunities in comparable situations. Va. Code Ann. § 8.01‐225.
g. Immunity of health care providers during man‐made disasters under specific
circumstances, in the absence of gross negligence. Va. Code Ann. § 8.01‐225.01.
h. Immunity for team physicians, in absence of gross negligence or willful
misconduct, who renders emergency medical care/treatment without compensation to a
participant in an athletic event as a team physician. Va. Code Ann. § 8.01‐225.1.
i. Immunity for those rendering emergency care to animals. Va. Code Ann. § 8.01‐
225.2.
See also, Va. Code Ann. §§ 8.01‐226.1 – 8.01‐226.11.
5. AUTOMOBILE ACCIDENT STATUTES
Each of us has a basic understanding of the elements of a basic negligence‐based motor
vehicle tort in Virginia: duty, breach, causation, damages. “Torts 101,” as they say. But there are
a plethora of statutes that can enhance the viability of your motor vehicle tort claims. We
discuss some of them below.
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a. Liability of owner for negligence of a minor. Under Va. Code Ann. § 8.01‐64,
every owner of a motor vehicle causing or knowingly permitting a minor under the age of 16
years who is not permitted under the provisions of § 46.2‐335 (Learner’s Permit) to drive such a
vehicle upon a highway, and any person who gives or furnishes a motor vehicle to such minor,
shall be jointly and severally liable with such minor for any damages resulting therefrom.
However, the owner may assert the defense of lack of consent or lack of knowledge. Va. Code
Ann. § 8.01‐66.
b. Punitive damages against intoxicated driver. Under Va. Code Ann. § 8.01‐44.5,
the jury may award punitive damages in a motor vehicle tort action if the evidence proves
malice or willful and wanton misconduct. The plaintiff may prove such conduct by adducing
evidence that:
(i) when the incident occurred, defendant had a BAC of 0.15% or greater;
(ii) at the time defendant began drinking alcohol, or during the time he was drinking
alcohol, he knew/should have known his ability to operate motor vehicle, engine or train would
be impaired, or when operating the vehicle he knew/should have known his ability to operate a
motor vehicle was impaired; and
(iii) defendant’s intoxication was a proximate cause of the injury/death.
If the defendant unreasonably refused to submit to a BAC test, willful or wanton
misconduct may be proven if evidence shows that (i) when incident occurred, defendant was
intoxicated (may be proven by evidence about conduct or condition); (ii) at the time defendant
began drinking alcohol or during the time he was drinking alcohol, he knew/should have known
his ability to operate motor vehicle was impaired; and (iii) defendant’s intoxication was a
proximate cause of the injury/death.
c. Negligence per se
Oftentimes, the law enforcement officer responding to the scene of a motor vehicle
collision will do much of your work for you. If warranted, he will cite the defendant for a
violation of one or more of the Virginia motor vehicle statutes. If the defendant subsequently
pleads guilty to the charge, then such a plea would be admissible in any civil proceeding. The
same holds true for a pleas of nolo contendere. See, Va. Code Ann. § 8.01‐418.
In my opinion, the most attractive thing about motor vehicle torts is the fact that you
can bring an action for negligence per se. “The doctrine of negligence per se represents the adoption of 'the requirements of a legislative enactment as the standard of conduct of a
reasonable [person].'" Evans v. Evans, 280 Va. 76, 84; 695 S.E.2d 173, 177; 2010 Va. LEXIS 77,
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***10 (citing McGuire v. Hodges, 273 Va. 199, 206, 639 S.E.2d 284, 288 (2007)(quoting Butler v.
Frieden, 208 Va. 352, 353, 158 S.E.2d 121, 122 (1967)). “A party relying on negligence per se
does not need to establish common law negligence provided the proponent produces evidence
supporting a determination that the opposing party violated a statute enacted for public safety,
that the proponent belongs to the class of persons for whose benefit the statute was enacted
and the harm suffered was of the type against which the statute was designed to protect, and
that the statutory violation was a proximate cause of the injury.” Halterman v. Radisson Hotel
Corp., 259 Va. 171, 176‐77, 523 S.E.2d 823, 825 (2000); Virginia Elec. & Power Co. v. Savoy
Constr. Co., 224 Va. 36, 45, 294 S.E.2d 811, 817 (1982).
It is a proverbial “no‐brainer.” As a user of the public roadway, your client has the
absolute right to assume that all other users of the public roadway – including the defendant –
will comply with the motor vehicle laws. Almost by definition, under most of the motor vehicle
statutes it is easy to demonstrate that your client is a member of the class of persons intended
to be protected by the particular statute at issue. I strongly encourage you, before undertaking
any motor vehicle tort case in the Commonwealth, to peruse Volume 7 (Title 46.2) of the
Virginia Code, which contains the motor vehicle statutes.
Some of the more commonly used – i.e., violated – motor vehicle statutes are as
follows, and bear in mind that there need not be a citation issued, or a guilty plea, in order to
avail your client of a negligence per se claim.
1. Va. Code § 46.2‐820 – Right‐of‐way at uncontrolled intersections. When
two vehicles approach or enter an uncontrolled intersection at about the same time, the driver
on the left shall yield to the driver on the right.
2. Va. Code § 46.2‐821 ‐‐‐ Vehicles before entering certain highways shall
stop or yield right‐of‐way. The driver of a vehicle approaching an intersection on a highway
controlled by a stop sign shall, before entering the highway, stop at a clearly marked stop line,
or if none, stop before entering the crosswalk, or if none, stop at the point nearest the
intersecting roadway where the driver has an unobstructed view of approaching traffic. He shall
yield the right‐of‐way to any driver approaching on the highway in either direction.
3. Va. Code § 46.2‐822 – Right‐of‐way at traffic circles. Vehicles already in
the circle have the right of way over vehicles approaching and entering the circle.
4. Va. Code § 46.2‐823 – Unlawful speed forfeits right of way. Even if a
driver has the right‐of‐way under this title, traveling at an unlawful speed forfeits that right‐of‐
way.
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5. Va. Code § 46.2‐824 – Right‐of‐way at uncontrolled “T” intersections.
When vehicles approach at the same time at an uncontrolled “T” intersection, the driver of the
vehicle on the highway that intersects but does not cross the other highway shall yield the
right‐of‐way to any vehicle traveling on the other highway.
6. Va. Code § 46.2‐825 – Left turn traffic to yield right‐of‐way. The driver of
a vehicle intending to turn left within an intersection or into an alley, private road, or driveway
shall yield to oncoming traffic. But if there is a specific left turn signal, then that left turning
driver has the right of way during such a signal.
7. Va. Code § 46.2‐826 – Stop before entering public highway or sidewalk
from private road, etc.; yielding right‐of‐way. Absent a traffic signal, the driver of a vehicle
entering a public roadway from a private road, driveway, alley, or building shall stop
immediately before entering such highway or sidewalk and must yield the right‐of‐way to
vehicles and pedestrians approaching.
8. Va. Code § 46.2‐852 – Reckless driving; general rule. Irrespective of
maximum speed limits, any person driving a vehicle on any highway recklessly or at a speed or
in a manner so as to endanger life, limb, or property of any person shall be guilty of reckless
driving. This a very good catch‐all statute to use in civil cases, as the circumstances at the situs
of the collision will determine whether the driving was reckless.
9. Va. Code § 46.2‐861 – Driving too fast for highway conditions. A person is
guilty of reckless driving if he exceeds a reasonable speed under the circumstances and traffic
conditions existing at the time, regardless of any posted speed limit. Another favorite of mine –
it is governed by the circumstances, not the speed limit.
10. Va. Code § 46.2‐862 – Exceeding speed limit. Driving more than 20 mph
over the speed limit or over 80 mph constitutes reckless driving.
11. Va. Code § 46.2‐924 – Drivers to stop for pedestrians; installation of
certain signs; penalty. Driver of a vehicle must yield the right‐of‐way to any pedestrian crossing
such highway (a) at any clearly marked crosswalk; (b) at any regular pedestrian crossing; (c) at
any intersection when the driver is approaching on a highway or street where maximum speed
limit does not exceed 35 mph.
12. Va. Code § 46.2‐816 – Following too closely. The driver of a motor vehicle
shall not follow another motor vehicle, trailer, or semitrailer more closely than is reasonable
and prudent, having due regard to the speed of both vehicles and the traffic on, and conditions
of, the highway at the time.
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This list is not meant to be exhaustive, but gives you a good insight into the strength
that your motor vehicle tort case can gain by utilizing the statutes to your benefit, even if there
were no citations issued, and no guilty plea.
6. INJURIES ON RECREATIONAL LANDS
What happens when someone is injured on a tract of land owned by a private company?
Let us suppose that a large corporation has built a large business park in a somewhat rural area
of Virginia. There are woods, a beautiful stream flowing through the property, plenty of wild
game for hunting, pastoral views of mountains in the distance and farmland in a valley below.
Every year, the corporation hosts on its property a huge festival, with lots of carnival games,
rides, prizes, face‐painting, pony rides, hay rides, and a 5k race throughout the property. Smart
corporation that it is, it invites sponsors to set up booths to hawk their wares. In the parking lot
of the property there is set up a huge set of trusses forming an arch, with a big banner
welcoming all visitors. It costs $10.00 to participate in the 5k race. The 5k race is set to begin
under that big arch, and to end there as the finish line. It is windy, and the trusses are not quite
anchored securely enough as they should be and as specified by the manufacturer. A 10 year
old girl is participating in the race, in her class of 10‐and‐unders. As she gloriously approaches
the finish line under the arch to take first place in her class, a gust of wind blows the truss over.
The girl, concentrating on crossing the finish line, does not see it falling. Her mother screams as
it topples towards her. The girl looks up in response to her mother’s screams, but too late. The
truss catches the back of her left leg, just above the ankle, and severs her leg below the knee.
Is the corporation/landowner liable? At first blush, Va. Code Ann. § 29.1‐509, entitled
“Duty of care and liability for damages of landowners to hunters, fishermen, sightseers, etc.,”
suggests not. The statute expressly provides that:
a landowner shall owe no duty of care to keep land or premises safe for entry or
use by others for hunting, fishing, trapping, camping, participation in water
sports, boating, hiking, rock climbing, sightseeing, hang gliding, skydiving,
horseback riding, foxhunting, racing, bicycle riding or collecting, gathering,
cutting or removing firewood, for any other recreational use, for ingress or
egress over such premises to permit passage to other property used for
recreational purposes or for use of an easement granted to the Commonwealth
or any agency thereof…
No landowner shall be required to give any warning of hazardous conditions or
uses of, structures on, or activities on such land or premises to any person
entering on the land or premises for such purposes, except as provided in
subsection D. The provisions of this subsection shall apply without regard to
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whether the landowner has given permission to a person to use their land for
recreational purposes.
Id. (emphases added). Subsection C provides that any landowner who gives permission, express
or implied, to conduct such activities does not thereby
1. impliedly or expressly represent that the premises are safe for such
purposes: or
2. constitute the person to whom such permission has been granted an
invitee or licensee to whom a duty of care is owed; or
3. assume responsibility for or incur liability for any intentional or negligent
acts of such person or any other person, except as provided in Subsection D.
Id.
So what does this infamous “Subsection D” say? It provides the answer to the prayer of
the putative plaintiff:
D. Nothing contained in this section, except as provided in Subsection E,
shall limit the liability of a landowner which may otherwise arise or exist by
reason of his gross negligence or willful or malicious failure to guard or warn
against a dangerous condition, use, structure, or activity. The provisions of this
section shall not limit the liability of a landowner which may otherwise arise or
exist when the landowner receives a fee for use of the premises or to engage in
any activity described in subsections B and C. Nothing contained in this section
shall relieve any sponsor or operator of any sporting event or competition
including but not limited to a race or triathlon of the duty to exercise ordinary
care in such events. Nothing contained in this section shall limit the liability of an
owner of a low‐head dam who fails to implement safety measures described in
Subsection F.
Id. (emphases added). Subsection E generally provides that when a landowner contracts with or
grants an easement or license to a government for its use of the property for the enumerated
purposes above, then in the event of a claim, the government must indemnify and hold
harmless the landowner for such actions, including reimbursement of legal fees.
7. EQUINE ACTIVITY LIABILITY ACT
Given the number of horse, pony, mule and donkey fanatics in the Commonwealth –
and the plethora of equine activities enjoyed by so many – it is not surprising that Virginia has
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passed the “Equine Activity Liability Act.” Va. Code Ann. § 3.2‐6200 et seq. “Equine activities” as
defined in the statute include things such as equine shows, fairs, competitions, performances,
or parades involving any or all breeds of equines and any of the equine disciplines (dressage,
hunter and jumper horse shows, grand prix jumping, rodeos, polo, steeple chasing, endurance
trail riding and western games, hunting), boarding equines, equine training or teaching
activities, riding, inspecting or evaluating an equine, rides, trips, hunts or other equine activities
of any type, providing hoofcare, and providing or assisting in breeding or therapeutic veterinary
treatment.
In a nutshell, the statute provides that an equine activity sponsor, an equine
professional, or any other person shall not be liable for an injury or death of a participant if
such injury or death resulted from the intrinsic dangers of equine activities. However, liability is
not limited where the equine activity sponsor or professional or any other person (1)
intentionally injures the participant; (2) commits an act or omission that constitutes negligence
for the safety of the participant and such act or omission caused the injury, unless the
participant, parent or guardian expressly assumed the risk by signing a waiver; or (3) knowingly
provides faulty equipment or tack and such equipment or tack was faulty to the extent that it
did cause the injury or death of the participant. Va. Code Ann. § 3.2‐6203.
8. SOVEREIGN IMMUNITY
Inasmuch as this presentation is limited to personal injury claims under Virginia law, we
will not delve into federal claims, such as claims against the United States under the Federal
Tort Claims Act, or federal civil rights claims under 42 U.S.C. § 1983, and the attendant
immunities. Instead, we will focus on two discrete types of tort claims against governmental
entities in the Virginia: (1) the Virginia Tort Claims Act; and (2) tort claims against municipalities.
Each has a very strict notice requirement, which differs from the general statute of limitations
within which you must actually file your lawsuit.
Virginia Tort Claims Act
The Virginia Tort Claims Act (“VTCA”) is fairly straightforward, and is set forth in Va.
Code Ann. § 8.01‐195.1 et seq. It governs all personal injury claims arising out of the negligent
or wrongful acts or omissions of any Commonwealth employee while acting within the scope of
his employment under circumstances where the Commonwealth or transportation district,11 if
11 The Virginia Department of Transportation (VDOT) divides the state into nine districts, each of which oversees maintenance and construction on the state‐maintained highways, bridges and tunnels in its region. http://www.virginiadot.org/about/districts.asp.
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a private person, would be liable to the claimant for such injury or death. Va. Code Ann. § 8.01‐
195.3. Prejudgment interest and punitive damages are not recoverable under the VTCA.
The amount recoverable by any claimant shall not exceed $25,000.00 for causes of
action accruing before July 1, 1988; $75,000.00 for causes of action accruing on or after July 1,
1988; and $100,000.00 for causes of action accruing on or after July 1, 1993, OR the maximum
limits of any liability policy maintained to insure against such negligence or other tort, if such
policy is in force at the time of the incident, whichever is greater. Id.
Having handled a fair number of VTCA cases, this author has much familiarity with the
workings of the VTCA in real life practice. The Commonwealth maintains a pooled risk
management fund, which is described in great detail in its Risk Management Plan. The
Commonwealth, via its defense counsel, the Attorney General’s Office, strenuously maintains
that this risk management pool does not constitute “liability insurance” as described under the
statute, and therefore argues that the $100,000.00 limit is truly what is recoverable under the
VTCA. (Mind you, if you have federal civil rights claims, there is no cap on recovery under 42
U.S.C. § 1983, based on federal preemption.)
The Risk Management Plan does reiterate the $100,000.00 limit for negligence‐based
claims arising out of the negligence of Commonwealth employees, noting that the limit “shall
not be applicable to any claim or causes of action other than those established by Virginia law
(i.e., federal civil rights claims are not included in the cap.). It also disclaims coverage altogether
for malicious, willful, wanton, or criminal acts. Id., at § III.E. However, there is an “in‐between”
level of coverage under the plan, which most attorneys are not aware of: you can sue individual
Commonwealth employees for gross negligence, and recover up to $2 million per claim. Id., at §
II.B. As the Eastern District has noted, only negligent conduct is protected by the VTCA. Acts
constituting gross negligence or intentional torts are not immunized. Coppage v. Mann, 906
F.Supp. 1025 (E.D. Va. 1995).
The statute expressly preserves the individual immunity of judges, the Attorney General,
attorneys for the Commonwealth, and other public officers, their agents, and employees “to
the extent they are presently immunized.” Id. It also excludes from coverage claims that would
generally sound in discretionary function, such as claims based upon acts or omissions of the
General Assembly or district commission of any transportation district (or any member acting in
an official capacity), or the legislative function of any agency subject to the provisions of the
VTCA; claims based upon acts or omissions of courts and their members acting in an official
capacity; claims based upon acts or omissions of agency personnel executing a lawful order of
any court; claims arising out of assessment or collection of taxes; claims arising out of the
institution or prosecution of any judicial or administrative proceeding, even if without probable
22
cause; any claim by an inmate of a state correctional facility, unless he verifies under oath that
he has exhausted his remedies under applicable grievance proceedings. Id.
VERY IMPORTANT!! A VTCA claim shall be “forever barred” unless the claimant or his
agent gives notice of the claim! He must file a written statement of the nature of his claim,
which includes the time and place at which the injury is alleged to have occurred and the
agency or agencies alleged to be liable, within one year after such cause of action accrued.
However, the tolling provisions of § 8.01‐229 (discussed above) shall apply. Va. Code Ann. §
8.01‐195.6.
If the claim is against the Commonwealth, you must file the notice of claim with the
Director of the Division of Risk Management or the Attorney General. (Out of an abundance of
caution, we always serve both.) If the claim is against a transportation district, the notice shall
be filed with the chairman of the commission of the transportation district. Id.
The notice of claim is deemed “filed” when it is received in the office of the official to
whom it is directed. It may be delivered by hand, by any form of U.S. mail service (including
regular, certified, registered or overnight mail), or by commercial delivery service. Id. A word of
caution – do NOT wait until the last minute to serve your notice. We always serve it by at least
two different methods, usually by certified mail (return receipt requested) or Federal Express,
as well as by regular mail. Be vigilant about getting back that “little green card” for certified
mail, or a delivery receipt from Federal Express. If notice is contested, the burden is on the
claimant to establish receipt of the notice in conformity with the statute. A signed U.S. mail
return receipt indicating the date of delivery, or any other form of signed and dated
acknowledgment of delivery is prima facie evidence of filing.
The statute of limitations is a bit tricky under the VTCA. As we have discussed, notice is
strictly due within one year after the cause of action accrues. An action may be commenced (1)
upon denial of the claim by the Attorney General or Director of the Division of Risk
Management (or, in the case of a transportation district, by the chairman of the commission of
that district); OR (2) after the expiration of six months from the date of filing the notice of claim
unless, of course, the claim has been compromised and discharged. Va. Code Ann. § 8.01‐195.7.
It is the Commonwealth – and not the individual employee tortfeasor – who is the proper party
defendant in a negligence‐based VTCA action, unless you are also bringing gross negligence
claims against the individual. Service of process is properly made upon the Attorney General.
Va. Code Ann. § 8.01‐195.4. A claimant has the right to a jury trial Id.
A VTCA claim shall be forever barred unless such action is commenced within eighteen
months of the filing of the notice of claim. Id. While it may appear that the Commonwealth is
being generous in seemingly granting a two and a half year statute of limitations for VTCA
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actions, bear in mind that you may be forced to wait six months after giving notice of the claim
before being permitted to file. Thus, it is really simply tacking on the waiting period. Again, the
limitations periods are subject to the tolling provisions of § 8.01‐195.7.
Given that a state is not a “person” under the Eleventh Amendment, it has immunity in
federal court. Thus, even if you have ancillary federal claims, you must file in state court.
However, the Commonwealth can – and often does – waive such immunity and remove the
action to federal court (if there is a federal question involved). This is done presumably to give
itself the absolute right of appeal to the Fourth Circuit.
VTCA actions are vigorously defended by the excellent legal counsel in the Attorney
General’s Office, and you can fully expect a knock‐down, drag‐out litigation battle in VTCA
cases.
Actions Against Counties, Cities, and Towns
While the Commonwealth kindly gives claimants a full year within which to serve a
notice of claim under the VTCA, municipalities are not so generous. Such claims are governed
by Va. Code Ann. § 15.2‐209. The statute provides that every claim cognizable against any
county, city, or town for negligence:
shall forever be barred unless the claimant or his agent, attorney, or
representative has filed a written statement of the nature of the claim, which
includes the time and place at which the injury is alleged to have occurred,
within six months after such cause of action accrued. However, if the claimant
was under a disability at the time the cause of action accrued, the tolling
provisions of § 8.01‐229 shall apply.
Id. (emphases added). The notice must be filed with the county, city, or town attorney or with
the chief executive or mayor of the county, city, or town. It is deemed filed when it is received
in the office of the official to whom the notice is directed. It may be delivered by hand, by any
form of U.S. mail service (including regular, certified, registered, or overnight mail), or by
commercial delivery service. Id. Similar to the VTCA, in any action contesting the filing of the
notice, the burden of proof is on the claimant to establish receipt, and a signed return
receipt/acknowledgment is prima facie evidence of filing of the notice.
The statute expressly states that it does not – and should not be construed to –
abrogate, limit, expand or modify the sovereign immunity of any county, city, or town (or their
officers, agents, or employees).
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A strong word of caution – sometimes it is difficult to determine at first blush whether
the individual torfeasor was a state or a municipal employee at the time of the tort. For
example, deputy sheriffs may be acting on behalf of the county when performing certain
functions, or the Commonwealth when performing other functions (running a county jail,
executing court functions, serving warrants, etc.). Since you will likely not get a second chance
to serve a notice, serve it on both the Commonwealth and the municipality. You will not be
penalized, and you can then have the luxury of time to figure it out.
There are no statutory caps applicable to municipalities, other than those as generally
discussed above.
Hopefully this paper and the related presentation will assist you in your practice.
Good luck!
Peter Grenier
If you are an injured victim, or an attorney, and would like to discuss a potential case. Please contact my firm at (202) 768-9600. I would be happy to hear from you.
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