5.4 Tort Actions Generally

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

5.4 TORT ACTIONS GENERALLY

5.401 Lex Loci Delicti Standard. Virginia adheres to the lex loci delicti, or law of the place of the wrong, standard, which will govern as to all matters going to the basis of the right of action itself (substantive law), while the lex fori controls all law that is connected merely with the remedy (procedural law). ¹⁷

In resolving conflicts of laws, the settled rule in Virginia is that the substantive rights of the parties in a multistate tort action are governed by the law of the place of the wrong, or lex loci delicti. ¹⁸ The place of the wrong for the purposes of lex loci delicti is defined as "the place where 'the last event necessary to make an act liable for an alleged tort takes place.'" ¹⁹ The last act

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giving rise to the cause of action will often be where the injury has occurred, such as with automobile accidents. ²⁰

5.402 Guest Statute. Prior to 1974, Virginia had a guest statute under which a person transported as a guest without payment had to prove gross negligence or willful and wanton disregard of safety in order to recover, but in 1974 that statute was amended to provide that a guest could recover from the owner or operator upon proving simple negligence. ²¹

The degree of negligence necessary to support a recovery by a guest against the driver is to be determined by the lex loci delicti. ²² In North Carolina, ordinary negligence will support a recovery in favor of a guest against his or her host. Therefore, Virginia courts must apply that the principle of the lex loci to a case involving an accident that occurred in North Carolina. ²³

5.403 Loss of Consortium. While Virginia does not have a cause of action for loss of consortium, ²⁴ a spouse may bring a cause of action in Virginia for loss of consortium if such a cause of action is recognized by the lex loci delicti. ²⁵ "A common law cause of action declared by the courts of a sister state may be enforced in Virginia so long as it is not contrary to the policy or prejudicial to the interests of Virginia." ²⁶ In Pringle v. Sloan, ²⁷ the court concluded that a wife may bring a cause of action in Virginia for loss of consortium arising out of injuries sustained by the husband in a vehicle accident in Delaware.

Virginia and Delaware have chosen different courses in removing the inequality between spouses in asserting causes of action for loss of consortium. Virginia chose to abolish the

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husband's common law cause of action, while Delaware chose to create a common law cause of action in the wife. Both policies were designed to produce equality between the spouses in this regard; the...