Virginia Personal Injury Law: A Summary

§ 1 What is a personal injury lawsuit?

A personal injury lawsuit seeks money damages for harm to a person’s body, mind or emotions, as distinct from damage to property. The losses it can recover typically include medical expenses, lost wages and lost earning capacity, disability, disfigurement, and physical pain and mental suffering.

§ 2 What the injured person must prove

In a negligence case, the injured person (the plaintiff) must prove four things: that the defendant owed a legal duty of care; that the defendant breached that duty; that the breach was a proximate cause of the injury; and that the plaintiff suffered damages as a result.

Duty comes first. As the Supreme Court of Virginia has put it:

“[T]he question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence.” Dudley v. Offender Aid & Restoration of Richmond, Inc., 241 Va. 270, 277 (1991) (quoted in Tingler v. Graystone Homes, Inc., 298 Va. 63 (2019)).

Negligence itself is the failure to use ordinary care: the care a reasonable person would use under the same circumstances. Yeary v. Holbrook, 171 Va. 266 (1938).

§ 3 Contributory negligence: Virginia’s all-or-nothing rule

Contributory negligence is the injured person’s own failure to use ordinary care for his or her safety. Yeary, 171 Va. 266. Virginia is one of the few states that still follows this rule instead of comparative fault. If the plaintiff’s own negligence was a proximate cause of the accident, it generally bars any recovery, even if the defendant was far more at fault.

Contributory negligence is also not a defense to willful and wanton misconduct. But as a practical matter, the rule makes clear proof of the other party’s fault the first question in any Virginia injury case.

A very narrow exception: last clear chance

Virginia recognizes one very narrow exception, the “last clear chance” doctrine. It lets a negligent plaintiff recover only in two situations, which the Supreme Court of Virginia defined in 1955:

The helpless plaintiff

“Where the injured person has negligently placed himself in a situation of peril from which he is physically unable to remove himself, the defendant is liable if he saw, or should have seen, him in time to avert the accident by using reasonable care.”

The inattentive plaintiff

“Where the plaintiff has negligently placed himself in a situation of peril from which he is physically able to remove himself, but is unconscious of his peril, the defendant is liable only if he saw the plaintiff and realized, or ought to have realized, his peril in time to avert the accident by using reasonable care.”

Greear v. Noland Co., 197 Va. 233, 238–39, 89 S.E.2d 49, 53 (1955).

Courts apply the doctrine strictly. A “helpless” plaintiff must be physically incapacitated, and an “inattentive” plaintiff can rely on the doctrine only if the defendant actually saw him. The doctrine does not replace the contributory negligence rule: “A negligent plaintiff may recover only if his negligence was a remote rather than a proximate cause of the accident.” If the chance to avoid the accident was as available to the plaintiff as to the defendant, the plaintiff’s negligence is a proximate cause and recovery is barred. The plaintiff must prove every element. Williams v. Harrison, 255 Va. 272, 276–77 (1998). For a more recent application, see Coutlakis v. CSX Transportation, Inc., Record No. 160277 (Va. Mar. 9, 2017).

This is why we evaluate liability before anything else. Read about the cases we take.

§ 4 Tort or contract?

An injury claim is usually a tort claim. The Supreme Court of Virginia has described what that means:

“A tort is any civil wrong or injury; a wrongful act (not involving a breach of contract) for which an action will lie.” “Tort” is also defined as the violation of some duty owing to the plaintiff imposed by the general law or otherwise. Generally, the “duty must arise by operation of law and not by mere agreement of the parties.” Stated differently, a “tort” is a “legal wrong committed upon the person or property independent of contract.” Glisson v. Loxley, 235 Va. 62, 67 (1988) (citations omitted) (quoted in Tingler, 298 Va. 63).

The distinction matters when an injury grows out of a contract, such as work by a builder, repair contractor or landlord. Seeking damages for pain and suffering does not, by itself, turn a contract claim into a tort claim. The court asks where the duty came from: the general law, or only the parties’ agreement.

§ 5 Filing deadlines

Missing a statute of limitations ordinarily ends the claim, however strong it is. The most common Virginia deadlines:

2 years

Most personal injury actions, whatever the theory of recovery, run from when the cause of action accrues. Va. Code § 8.01-243(A).

2 years

Wrongful death actions, brought by the personal representative of the person who died, run from the date of death. Va. Code § 8.01-244(B).

10–20 years

Injury resulting from sexual abuse carries longer periods, which depend on the victim’s age, the abuser’s relationship to the victim and when the claim accrued. Va. Code § 8.01-243(D), (D1), (D2).

1 year

Defamation and insulting words claims. Va. Code § 8.01-247.1.

Months

Claims against the Commonwealth or a locality can require written notice well before the lawsuit deadline.

Deadlines have exceptions in both directions. If you are near any of these dates, call a lawyer now rather than relying on a summary.

§ 6 Damages

Pain, inconvenience and mental suffering

The inconvenience, discomfort and mental suffering that follow from an injury, and from the disability it causes, are part of the damages a jury may consider. Richmond Passenger & Power Co. v. Robinson, 100 Va. 394 (1902).

No fixed yardstick; the jury decides

There is no fixed rule or formula for valuing suffering or disfigurement. Whether an award is excessive depends on the facts of each case, and the amount is peculiarly for the jury. A verdict will not be set aside unless it is so out of proportion to the injury as to show prejudice, partiality or corruption, or a mistaken view of the merits. Lilley v. Simmons, 200 Va. 791, 797 (1959).

Amount sued for versus amount recovered

The amount demanded in a complaint is a ceiling, not a prediction. What a case is worth depends on the evidence of fault, the severity and permanence of the injuries, and the insurance or assets available to pay a judgment.

Emotional distress without physical injury

Where conduct is merely negligent, Virginia generally does not allow recovery for emotional distress alone. A plaintiff without physical impact must prove, by clear and convincing evidence, a physical injury that was the natural result of fright or shock caused by the defendant’s negligence. Hughes v. Moore, 214 Va. 27 (1973).

Punitive damages

Punitive damages, awarded to punish especially egregious conduct, are capped in Virginia at $350,000 in total against all defendants. The jury is not told about the cap; the judge reduces any larger award. Va. Code § 8.01-38.1.

§ 7 Common kinds of claims