Liability

Joint and Several

Economic Damages

Applies

 Va. Code Ann. § 8.01-443.

Non-Economic Damages

Applies

 See above.

May a Jury Allocate Fault Among All Persons Contributing to an Injury?

Uncertain

Market Share Liability

No

Defenses

Comparative Negligence

No

Contributory negligence is an affirmative defense in Virginia.

Sawyer v. Comerci, 563 S.E.2d 748 (Va.), cert. denied, 498 U.S. 908 (1990).

Assumption of Risk

Yes

Assumption of risk is an affirmative defense.

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 (4^th Cir. 1993).

Statute of Repose

No, except for improvements to real property

5-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; see also Hess V. Synder Hunt Corp., 392 S.E.2d 817 (Va. 1990) (declaring statute to be constitutional).

Government Contractor Defense

Uncertain

The Virginia Supreme Court has recognized a “federal contractor defense” in the military context.

R.B. Hazard, Inc. v. Panco, 397 S.E.2d 866 (Va. 1990) (applying 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 beginning on July 1, 2000 until 2007.  On July 1, 2007 and July 1, 2008, the limit will increase by $75,000.  The July 1, 2008 increase shall be the final annual increase.

Va. Code Ann. § 8.01-581.15; see also Pulliam v. Coastal Emer. Servs. of Richmond, Inc., 509 S.E.2d 307 (Va. 1999) (declaring statute to be constitutional); Etheridge v. Med. Center Hosp., 376 S.E.2d 525 (Va. 1989) (same).

Is there a statutory limit on non-economic damages?

See above

Is recovery for medical monitoring permitted without physical injury?

Unlikely

Ball v. Joy Tech., Inc., 958 F.2d 36 (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 defendant “regularly conducts substantial 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 in civil actions?

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).

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.

Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 598 (4th Cir. 1985).

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 3 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.

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