Liability of Employer for Personal Injury or Death by Wrongful Act

When Employers Can Be Held Liable

Under this new law, an employer may be found vicariously liable for the tortious conduct of an employee if all four of the following elements are proven by the plaintiff:

1. The employee’s wrongful conduct occurred at a time and in circumstances where the employee was reasonably likely to be in contact with the vulnerable victim, and that conduct proximately caused the injury or death.
2. The employer failed to act with reasonable care in either of the following ways:
   • Preventing the employee from intentionally harming the vulnerable victim, or
   • Controlling the employee where there existed an unreasonable risk that the employee could cause injury or death.
3. The employer knew or should have known that they had the ability to control the employee.
4. The employer knew or should have known of both the necessity and the opportunity to exercise control over the employee in the relevant context.

Who Is Considered a “Vulnerable Victim”

This statute defines a “vulnerable victim” as: any person who is at a substantial disadvantage relative to an employee due to circumstances, including such person’s physical or mental condition or characteristics.

The statute includes specific examples of vulnerable populations to whom the statue applies:

• Patients of health care providers
• Persons with legal disabilities
• Residents of assisted living facilities
• Passengers of certain common carriers or nonemergency medical transport
• Business invitees of massage therapy or esthetic spa businesses

Legal Process and Burden of Proof

Under Virginia Code § 8.01-42.6, the determination of whether an employer should be held liable is treated as a question of fact, to be decided by the judge or jury based on the evidence presented at trial.

The plaintiff bears the burden of proof and must establish each element required under the statute to impose liability. Additionally, the law explicitly preserves the employer’s right to assert any affirmative defenses available under existing Virginia law.

Conclusion

While it remains to be seen how it is interpreted and applied by Virginia courts, this new law arguably lowers the threshold for employer liability in cases involving health care, providing stronger protections for vulnerable individuals and imposing greater responsibilities on employers to screen, monitor, and control their employees.

Employers in the affected sectors may need to revisit their risk management, employee supervision, and compliance policies. The professional liability team at Harman Claytor Corrigan & Wellman is here to help you understand your responsibilities, assess your risk, and defend your interests under this new legal landscape.