19.4 Tort Liability and Related Issues

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

19.4 TORT LIABILITY AND RELATED ISSUES

19.401 Contributory Negligence.

A. In General. Virginia has resisted the modern trend toward comparative negligence. A plaintiff's contributory negligence continues to be a complete bar to recovery. ⁸⁷

B. Children. A child under age seven is considered incapable of being contributorily negligent. ⁸⁸ There is a rebuttable presumption that children between the ages of 7 and 14 are also incapable of being negligent. ⁸⁹

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C. Mitigation of Damages. This concept should not be confused with mitigation of damages. For example, when a patient fails to seek appropriate physical therapy after a surgeon's negligence, the patient is barred from recovering damages that could have been avoided. However, the patient is not barred from all recovery. ⁹⁰ If the patient's negligence was concurrent with the physician's, the patient is barred from any recovery.

19.402 Contribution and Indemnity.

A. Contribution.

1. In General. In Virginia, a claim by one wrongdoer against another is expressly permitted by statute. Va. Code § 8.01-34 provides that "[c]ontribution among wrongdoers may be enforced when the wrong results from negligence and involves no moral turpitude." Although a statutory remedy, the doctrine of contribution is based on the equitable doctrine that if two or more wrongdoers contribute to cause a wrong, the resulting burden should be borne or shared equally among all wrongdoers. ⁹¹

2. Wrongdoers Means Joint Tortfeasors. Wrongdoers has been interpreted to mean joint tortfeasors, but the terms wrongdoers and joint tortfeasors do not necessarily refer to people whose conduct occurs simultaneously, such as in the case of a two-vehicular accident where both drivers are negligent. Contribution is also permitted between wrongdoers when the wrongdoers' conduct is separate and distinct and occurs at different times. ⁹² A contribution defendant is not liable to a contribution plaintiff unless the injured party who received compensation from the contribution plaintiff could also have recovered against the contribution defendant. ⁹³

3. Effect of Release and Covenant Not to Sue. The tortfeasor who enters into a release or covenant not to sue with the claimant pursuant to Va. Code § 8.01-35.1 is not entitled to recover by way of contribution from another tortfeasor "whose liability for the injury, property damage or wrongful death is not extinguished by the release or covenant not to sue, nor in respect to any amount paid by the person that is in excess of

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what was reasonable." ⁹⁴ A release and covenant not to sue given in good faith to one of two or more persons liable in tort for the same injury or wrongful death will discharge the person to whom it is given from all liability for contribution to any other person. ⁹⁵

B. Indemnity.

1. In General. Indemnity involves the determination of primary and secondary liability. Unlike contribution, indemnity is the shifting of the entire loss to another who ought to bear it because (i) he or she expressly or impliedly agreed to do so or (ii) his or her fault is primary and relatively more grievous, and the other fault is passive, constructive, vicarious, or insulated. ⁹⁶ Contract aside, indemnity may be allowed only if the person from whom indemnity is sought owed a duty to the injured person. ⁹⁷ The duty owed by the one sought to be made indemnitor must be primary; its violation must be more grievous than the breach of duty of the indemnitee. ⁹⁸

2. Nature and Scope of Claim for Indemnity. In Virginia, a claim for indemnity is a contractual claim. ⁹⁹ A right to indemnity is not limited to a right to recover under an express contractual indemnification clause. Thus, an employer may seek indemnification from its employee when the employer's liability is vicarious based on the master-servant relationship, which itself is a contractual relationship. ¹⁰⁰

3. Effect of Active Negligence. If, however, a party is guilty of active negligence, he or she may not obtain indemnification from any other party. ¹⁰¹ In Philip Morris, Inc. v. Emerson, ¹⁰² the court held that because the injured parties' claims against the several defendants were claims of active negligence, indemnification was unavailable to any of the

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defendants as a remedy to apportion or transfer responsibility for the injuries among the defendants.

4. Effect of Release and Covenant Not to Sue. Finally, as opposed to contribution, a release and covenant not to sue given to a party pursuant to Va. Code § 8.01-35.1 has no effect on that or any other party's right to seek and recover indemnification from any other party.

C. Statute of Limitations. The statute of limitations for contribution and indemnification begins to run when a payment is made. ¹⁰³

19.403 Assignment of Tort Actions.

A. Personal Injury Actions. Actions for personal injury are not assignable. ¹⁰⁴

B. Damage to Property. Causes of action for damage to real or personal property are assignable. ¹⁰⁵

C. Effect of Va. Code §§ 8.01-25 and 8.01-26. To avoid confusion on this issue, it is worth reviewing some background regarding the assignment of torts. Generally speaking, tort actions may be assigned if the tort action survives to or against the personal representative if the original party dies. ¹⁰⁶ Tort actions for damage to property survive at common law and, thus, are assignable. ¹⁰⁷ Historically, tort actions for personal injury did not survive death. Today, in Virginia, there is a statute providing that all causes of action survive the death of the person. ¹⁰⁸ This statute could lead one to believe that personal injury actions are assignable. However, notwithstanding

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the survival statute, another Virginia statute provides that only causes of action for damage to real or personal property are assignable. ¹⁰⁹ In light of the foregoing, the rule that actions for personal injury are not assignable has not been changed by the survival statute. ¹¹⁰

D. Interference with Business. Tort claims for interference with business are assignable. ¹¹¹ The rationale here is that the right to do business is a valuable property right and not a personal right. Also, assignment of the proceeds from a personal injury cause of action to a health care provider is permitted under Virginia law. ¹¹²

19.404 Persons Exempt from Liability for Medical Negligence.

A. Emergency Care.

1. Emergency Obstetrical Services. Absent gross negligence, any person who renders emergency obstetrical care or assistance to a female in active labor who has not previously been cared for by that person and whose medical records are not reasonably available to that person will not be liable for any civil damages for acts or omissions resulting from the rendering of emergency care or assistance. ¹¹³

2. Good Samaritan Doctrine in General. Any person who in good faith renders emergency care or assistance without compensation to any ill or injured person at the scene of an accident, fire, or any life-threatening emergency or en route from there to any hospital, medical clinic, or doctor's office will not be liable for civil damages for acts or omissions. ¹¹⁴ This also includes any person who renders emergency care without compensation at a location for screening or stabilization of an emergency medical condition. ¹¹⁵

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3. Specific Exemptions in Emergencies. The following persons are statutorily exempt from liability:

1.	Certain persons administering epinephrine for anaphylactic reactions; 116
2.	A person rendering emergency assistance for hazardous materials; 117
3.	Emergency medical technicians certified by the State Board of Health; 118
4.	A person administering emergency cardiopulmonary resuscitation; 119
5.	A licensed physician serving as a medical director of a licensed emergency medical services agency; 120
6.	A dispatcher for a licensed public or nonprofit emergency services agency; 121
7.	A licensed emergency medical services instructor who engages in instruction in basic and advanced life support instruction; 122
8.	A licensed physician serving as medical advisor to an E-911 system; 123

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9.	A licensed physician directing the provision of emergency services through a communications device; 124
10.	A licensed physician advising owners of AEDs on training, use protocols, and deployment of such devices; 125
11.	A provider of telecommunication service for emergency calls; 126
12.	A volunteer engaging in rescue work at a mine; 127
13.	A person who provides automated defibrillation services at the scene of an emergency or maintains an AED on his or her property that is used for that purpose; 128
14.	An employee of a school board or a local health department providing certain emergency care, including CPR and AED use, while on school property or at a school-sponsored event; 129
15.	A certified ski patrol volunteer rendering emergency medical care or transportation; 130
16.	An employee of a school board, school for students with disabilities, accredited private school, public or private institution of higher education, or the Department of Behavioral Health and

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	Developmental Services for administering insulin and glucagon; 131
17.	Employees of youth educational outdoor programs who administer epinephrine; 132
18.	A person who prescribes or administers naloxone or other opioid antagonists for life-threatening opioid overdoses; 133
19.	An employee of a school board, school for students with disabilities, or accredited private school for administering injected medications for the treatment of adrenal crisis resulting from a condition causing adrenal insufficiency; 134
20.	Health care providers responding to a disaster; 135
21.	An uncompensated team physician rendering

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