New Virginia law expands liability for employee misconduct

A recent amendment to a Virginia statute potentially widens employers’ exposure to personal injury and wrongful death liability.

Effective as of July 1, the change allows employers to be held vicariously liable for intentional or wrongful acts of an employee.

The statute specifies a four-prong test in which a plaintiff must show that the employee’s tortious conduct occurred while they were “reasonably likely to be in contact with the vulnerable victim,” and their conduct directly resulted in personal injury or death.

Under the second prong, a plaintiff must also show the employer failed to exercise reasonable care to prevent the employee from intentionally harming the vulnerable victim or control the employee, resulting in an unreasonable risk of a vulnerable victim suffering personal injury or death due to a wrongful act.

Prongs three and four require evidence that “the employer knew or should have known of the ability to control the employee” and that “the employer knew or should have known of the necessity and opportunity for exercising such control over the employee.”

Attorneys say the new measure is especially pertinent for employers that serve vulnerable victims, as defined by the law. That group includes patients of health care providers, non-emergency medical transportation companies, assisted living facility residents, massage clients, and the personal representatives of deceased vulnerable victims.

The statutory language also includes “person under a disability” as defined by state law. That group includes infants and incapacitated persons, including those under the protection of a guardian or conservator and other individuals who are unable to defend their legal or property rights or manage their estate.