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Virginia’s New “Vulnerable Victim” Law Increases Employers’ Potential for Vicarious Liability in Personal Injury and Wrongful Death Suits Against Employees

By Elizabeth Lalik, Lauren Bridenbaugh, and Leslie Currie

July 7, 2025
5 minute read

A new Virginia law, effective July 1, 2025, adds Section 8.01-42.6 to the Virginia Code to address employers’ vicarious liability for their employees’ tortious conduct in personal injury and wrongful death lawsuits brought by a “vulnerable victim” against an employee. It mandates that a finder of fact in the trial of a personal injury or wrongful death action brought by a “vulnerable victim” against an employer’s employee must consider whether the employer of that employee should be held vicariously liable for the actions of its employee.

A “vulnerable victim” plaintiff, according to the amendment, is one who is substantially disadvantaged compared to the defendant employee due to various circumstances, which can include physical or mental conditions. While not all-inclusive, the law expressly states that as a matter of law the definition includes:

Patients of health care providers,¹ as defined in Virginia Code Section 8.01-581.1;
Persons under disability² pursuant to Virginia Code Section 8.01-2;
Residents of assisted living facilities;
Passengers of common carriers, as defined in Virginia Code Section 46.2-2000, excluding public transit agencies funded by the Commonwealth Mass Transit Fund, as defined by Virginia Code Section 33.2-1526;
Passengers of non-emergency medical transportation carriers, defined in Virginia Code Section 46.2-2000; and
Business invitees of esthetics spas, defined in Virginia Code Section 54.1-700, or businesses offering massage therapy, defined in Virginia Code Section 54.1-3000.

This definition of “vulnerable victim” is broader than might be expected. Many of us are patients of “health care providers” as that term is defined in the Code. Many of us are also passengers of a “common carrier,” which is defined in Code section 46.2-2000 as “any person who undertakes, whether directly or by a lease or any other arrangement, to transport passengers for the general public by motor vehicle for compensation over the highways of the Commonwealth, whether over regular or irregular routes, including such motor vehicle operations of carriers by rail or water.”

The law instructs that in an action for personal injury or death by wrongful act brought by a vulnerable victim (or the representative of the deceased) against an employer’s employee, the finder of fact at trial on the merits of the case “shall determine whether an employer shall be vicariously liable for the tortious conduct of such employer's employee.” In making that determination, the plaintiff bears the burden of proving all four of the following elements to the factfinder:

The employee was reasonably likely to come into contact with the vulnerable victim and the employee’s tortious conduct proximately caused the victim’s personal injury or wrongful death;
The employer failed to exercise reasonable care to (i) prevent the employee’s intentional harm toward the vulnerable victim or (ii) control the employee, which resulted in an unreasonable risk that the vulnerable victim would suffer personal injury or wrongful death;
The employer knew or had reason to know of the ability to control the employee;³ and
The employer knew or had reason to know of the necessity and opportunity to exercise such control over the employee.

It remains unclear how broadly this new law will be applied. For example, the law’s broad definition of “vulnerable victim” suggests that there are ample situations in which employers could conceivably be held vicariously liable for an employee’s conduct, including because the law on its face at least does not require that the circumstances prompting the employer’s employee to interact with the “vulnerable victim” be connected with the circumstances giving rise to the victim’s “vulnerability.” The four elements the finder of fact must consider before applying vicarious liability appear to act as guardrails, limiting an employer’s exposure. Nevertheless, it remains to be seen how courts will interpret each of the four elements and their application. In the interim, employers should ensure they are proactively addressing any concerns that might come to light regarding the conduct of employees, particularly any conduct that could pose a safety risk (physical or emotional) to colleagues or to third parties.

¹ Notably, Virginia Code Section 8.01-581.1 defines “health care provider” broadly, including, but not limited to: (i) licensed medical providers or professionals, such as physicians, nurses, dentists, chiropractors, professional counselors, licensed marriage and family therapists, clinical social workers, dental hygienists, emergency medical care assistants or technicians, or health maintenance organizations; (ii) any professional corporation or partnership, all of whose members or partners are licensed medical providers; (iii) nursing home facilities; professional business entities; (iv) any business entity that employs or engages a licensed health care provider and primarily renders health care services; or (v) any director, officer, employee, independent contractor, or agent of such individuals or entities.

² "Person under a disability" includes: (a) a person convicted of a felony during the period they are confined; (b) an infant; (c) an incapacitated person as defined in § 64.2-2000; (d) an incapacitated ex-service person under § 64.2-2016; (e) persons made defendants by the general description of "parties unknown" in suits involving real property; or (f) any other person who, upon motion to the court by any party to an action or suit or by any person in interest, is determined to be (i) incapable of taking proper care of themselves, or (ii) incapable of properly handling and managing their estate, or (iii) otherwise unable to defend their property or legal rights either because of age or temporary or permanent impairment, whether physical, mental, or both. Such impairment may also include substance abuse as defined in § 37.2-100.

³ As written in the law, it is not clear what this provision means, so parties will likely receive direction from the courts regarding the meaning / effect of this clause.