|
Liability |
|
Joint and
Several |
|
Economic
Damages |
Applies |
|
|
Non-Economic
Damages |
Applies |
|
|
May a
Jury Allocate Fault Among All Persons Contributing
to an Injury? |
Probably
not |
|
|
Market
Share Liability |
No |
|
|
Defenses |
|
Comparative
Negligence |
No |
Contributory negligence is
an affirmative defense in Virginia.
Sawyer v. Comerci,
563 S.E.2d 748, 751 (Va.
2002). |
|
Assumption
of Risk |
Yes |
Assumption of risk is an
affirmative defense in Virginia.
Thurmond v. Prince
William Prof’l Baseball Club, Inc., 574 S.E.2d
246 (Va. 2003). |
|
Product
Misuse |
Yes |
Common knowledge of a
danger from the foreseeable misuse of a product
does not alone give rise to a duty to safeguard
against the danger of that misuse. Instead,
the purpose of making the finding of a legal duty
a prerequisite to a finding of negligence or
breach of implied warranty “is to avoid the
extension of liability for every conceivable
foreseeable accident, without regard to common
sense or good policy.”
Jeld-Wen, Inc. v.
Gamble, 501 S.E.2d 393 (Va.
1998). |
|
Compliance
With Government Standards |
No |
Evidence that the product
complied with customary or industry standards is
admissible, although such does not establish
conclusively that due care was
exercised.
Turner v. Manning,
Maxwell & Moore, Inc., 217 S.E.2d 863 (Va.
1975); Alevromagiros v. Hechinger Co.,
993 F.2d 417 (4th Cir.
1993). |
|
Statute
of Repose |
No, except for
improvements to real property |
Five-year statute of
repose limited to damages arising out of the
defective or unsafe condition of improvements to
real property.
Va. Code Ann. §
8.01-250. |
|
Government
Contractor Defense |
Uncertain |
The Virginia Supreme Court
has recognized a “federal contractor defense”
under federal law in the military context, but in
case involving nonmilitary product (a
fence).
R.B. Hazard, Inc. v.
Panco, 397 S.E.2d 866 (Va. 1990) (applying in
Boyle v. United Technologies Corp.,
487 U.S. 500 (1988)). |
|
McLawsuits
Permitted? Can a food manufacturer,
distributor, seller, or retailer be sued based on
an individual's weight gain, obesity, or
obesity-related health
condition? |
No
restriction |
|
|
Compensatory
Damages |
|
Is there a statutory limit
on economic damages? |
Yes, in medical malpractice
actions only |
Total damages are limited
to $1.5 million in medical malpractice
actions. This cap is increases by $50,000
annually until 2007. In 2007 and 2008, the
limit will increase by $75,000.
Va. Code Ann.
§ 8.01-581.15. |
|
Is there a statutory limit
on non-economic damages? |
See
above |
|
|
Is recovery for
medical monitoring permitted without physical
injury? |
Unlikely |
Ball v. Joy
Technologies, Inc., 958 F.2d 36, 39 (4th Cir.)
(dismissing plaintiffs claim for medical
monitoring damages because Virginia law requires a
present, physical injury prior to recovery for
negligence), cert. denied, 502 U.S. 1033
(1992). |
|
Punitive Damages |
|
Is there a statutory
limit? |
Yes |
Punitive damages may not
exceed $350,000.
Va. Code Ann. § 8.01-38.1. |
|
Is there any restriction
on imposing
multiple punitive damage awards for same
conduct? |
No |
|
|
Does the state receive a
portion of the punitive damage
award? |
No |
|
|
What standard is
used? |
Preponderance of the
evidence |
|
|
Procedures |
|
Venue |
|
|
|
Conducive to Abuse
-
Does the statute permit forum
shopping? |
Not
reported |
Venue in a tort action is
proper:
(1) where the defendants
resides or has his principle place of employment
, or if the defendant is a corporation,
where the mayor, rector, president or other
chief officer resides;
(2) where the
defendant has a registered office or agent for
service of process;
(3) where the defendants
“regularly conducts affairs or business
activity;” or
(4) where any part of the cause of action
arose.
Va. Code Ann.
§ 8.01-262. |
|
Class
Actions |
|
|
|
Is there a right to an
immediate appeal of class
certification? |
N/A (no class action
rule). |
|
|
Appeal
Bonds |
|
|
|
Does the amount of the
required bond place undue pressure on the
defendant to settle rather than
appeal? |
No |
The appeal bond necessary
to stay execution of the judgment is limited to
$25 million.
Va. Code Ann. §
8.01-676.1(J). |
|
Evidence |
|
Has the state adopted
Daubert, which requires the judge to
act as a "gatekeeper" against unreliable expert
testimony? |
No* |
Virginia has repeatedly
rejected the Frye "general acceptance"
test. Virginia law requires a court to make
a threshold finding of fact about the reliability
of the scientific method offered, unless the
method is of a type sufficiently familiar and
accepted to need no foundation to establish that
the method is fundamentally reliable, unless the
considerations requiring its exclusion have
“ripened into rules of law, . . . or unless its
admission is regulated by
statute.”
Spencer v.
Virginia, 393 S.E.2d 609, 621 (Va.
1990). |
|
Private Lawsuits Under Consumer
Protection Statutes |
|
Must each individual
plaintiff show that he or she relied on the
allegedly unfair or deceptive practice at
issue? |
Uncertain; causation is
required |
Va. Code Ann.
§ 59.1-204. |
|
What is the level of
scienter (intent) required of a
defendant? |
Not
addressed* |
The U.S. Court
of Appeals for the Fourth Circuit, interpreting
Virginia law, has found that the plaintiff must
show the defendant intended to deceive
consumers.
See Gill v.
Rollins Protective Servs. Co., 773 F.2d 592,
598 (4th Cir. 1986).
A supplier that had
no control over the practice of a manufacturer or
distributor, or that commits a bonafide error, is
not subject to liability.
Va. Code Ann.
§ 59.1-207. |
|
Are class actions
permitted? |
Yes |
|
|
Are statutory damages (an
amount set by statute) provided for even if a
plaintiff cannot show an actual economic
injury? |
Yes |
Plaintiff may recover
the greater of actual damages or
$500.
Va. Code Ann.
§ 59.1-204(A). |
|
Does the plaintiff
automatically receive treble (triple) damages
regardless of the intent of the
defendant? |
No, it is within the fact
finder's discretion |
If the violation was
willful, the fact finder may increase damages to
an amount not exceeding three times the actual
damages sustained, or $1,000, whichever is
greater.
Va. Code Ann.
§ 59.1-204(A). |
|
Does every prevailing
plaintiff receive attorneys fees and
costs? |
No, it is within the
court's discretion |
Va. Code Ann.
§ 59.1-204(B). |
|
Is conduct authorized by
or in compliance with a state or federal statute
or regulation exempt from the
act? |
Yes |
“Nothing in this
chapter shall apply to: A. Any aspect of a
consumer transaction which aspect is authorized
under laws or regulations of this Commonwealth or
the United States, or the formal advisory opinions
of any regulatory body or official of this
Commonwealth or the United States … C. Those
aspects of a consumer transaction which are
regulated by the Federal Consumer Credit
Protection Act, 15 U.S. C. § 1601 et
seq.”
Va. Code Ann.
§
59.1-199, A; Va. Code Ann. § 59.1-199, C. |
|
Jury Service |
|
Automatic exemptions and
disqualifications based on occupation eliminated? |
No |
Virginia law
automatically exempts: (1) President and Vice
President; (2) Governor Lieutenant Governor, and
Attorney General; (3) members of both houses of
Congress; (4) members of the General Assembly
while in session; (5)
practicing attorneys; (6) judges; (7) members of
the State Corporation Commission; (8) members of
the Workers’ Compensation Commission; (9)
magistrates; (10) law enforcement officers; and
(11) prison management and
guards.
Va. Code Ann. §
8.01-341.
Virginia law also
exempts upon request mariners, any person whose
services are so essential to the operations of the
business that it must close or cease to function,
and any person employed by the Office of the Clerk
of the House of Delegates, the Office of the Clerk
of the Senate, the Division of Legislative
Services, and the Division of Legislative
Automated Systems, during and immediately
before and after a legislative
session.
Va. Code Ann. §
8.01-341.1. |
|
Are the grounds for
obtaining an excuse from service closely
defined? |
No |
A person may be
excused for a “particular
occupational inconvenience.”
Va. Code Ann. §
8.01-341.2.
Virginia law also
exempts upon request
those with legal
custody and responsibility for a child under 16
who requires continuous care, a mother who is
breast feeding, persons over 70 years old, and
any person whose spouse is summoned for the same
panel.
Va. Code Ann. §
8.01-341.1. |
|
May jurors automatically
postpone and reschedule
service? |
No |
|
|
Is a juror's employment
and leave time adequately protected during
service? |
Yes |
An employer may not
discharge, take adverse personnel action, or
require the use of sick leave or vacation time
because of absence from work due to jury duty,
upon receiving reasonable notice of jury service
from an employee. No person who is summoned and
appears for jury duty for 4 or more hours,
including travel time, in one day shall be
required to start any work shift that begins on or
after 5 p.m. on the day of his appearance for jury
duty or begins before 3 a.m. on the day following
the day of his appearance for jury
duty.
Va. Code Ann. §
18.2-465.1. |
|
Is there a limit on the
frequency of jury service? |
Yes |
If a person has been
called and reported for jury duty in the trial of
any case, he or she will not be called for jury
service during the next 3 years.
Va. Code Ann. §
8.01-342. |
|
Is the length of service
limited to no more than one day or one
trial? |
No |
Must be available for
one term of court. Depending on the juror’s
place of residence, a term of court may be up to
four months.
Va. Code Ann. §
8.01-342. |
|
Juror per
diem |
$30 |
Va. Code Ann. §
17.1-618. |
|
Is additional compensation
available on lengthy trials? |
No |
|
|
Is the potential penalty
for nonappearance sufficient to encourage
participation? |
No |
A person who fails to
respond to a summons may held in contempt of court
and fined not less than $50 nor more than $200.
(minimum and maximum fines were doubled in
2004).
Va. Code Ann. §
8.01-356. |
|
Problem
Jurisdictions |
|
None
reported |
|
|
