David C. Wagoner—Senior Attorney
A fundamental precept of tort law is that “[a]n employer may be liable for both negligent and intentional torts committed by an employee within the scope of his or her employment.” Burlington Indus. v. Ellerth, 524 U.S. 742, 756, 118 S. Ct. 2257 (1998); see also Restatement (Third) of Agency § 7.07. In Virginia (and most other states), the dispositive issue in vicarious liability cases is therefore whether the employee committed the tortious act while engaged in the ordinary course of the employer’s business. See, e.g., Parker v. Carilion Clinic, 296 Va. 319, 819 S.E.2d 809 (2018); Our Lady of Peace, Inc. v. Morgan, 297 Va. 832, 832 S.E.2d 15 (2019).
However, a new Virginia statute expands employers’ potential liability where a “vulnerable victim” is concerned. Virginia Code § 8.01-42.6, which became effective July 1, 2025, sets forth a four-prong test for assessing vicarious liability in personal injury and wrongful death cases brought by or on behalf of a vulnerable victim. Under the new statute, vicarious liability will attach where:
- The employee’s tortious conduct occurred while the employee was reasonably likely to be in contact with the vulnerable victim and such conduct proximately causes personal injury to such vulnerable victim or the death of such vulnerable victim by wrongful act;
- The employer failed to exercise reasonable care to (i) prevent the employee from intentionally harming such vulnerable victim or (ii) control the employee resulting in an unreasonable risk of a vulnerable victim suffering personal injury or death by wrongful act;
- The employer knew or should have known of the ability to control the employee; and
- The employer knew or should have known of the necessity and opportunity for exercising such control over the employee.
Va. Code § 8.01-42.6(A). The statute’s definition of “vulnerable victim” includes, but is not limited to, a patient of a health care provider, a person under a disability, and a passenger of a common carrier. Va. Code § 8.01-42.6(B).
The statute—which has not yet been addressed in reported case law—has caught the attention of plaintiffs and defense counsel alike, and may raise as many questions as it answers. For example, what does it mean for an employee to be “reasonably likely” to be in contact with a vulnerable victim? What does “in contact with” mean? What is an “unreasonable risk” of a vulnerable victim suffering personal injury or death? What are the parameters of an employer’s “ability to control” its employees? Only time will tell.
