Virginia

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Statutes of Limitations (VIRGINIA)

 

Personal Injury - 2 yrs.[VA Code Ann. § 8.01-243]

Wrongful Death - 2 yrs. (from date of death) [VA Code Ann. § 8.01-244]

Property Damage - 5 yrs. [VA Code Ann. § 8.01-243]

Written Contracts - 5 yrs. [VA Code Ann. § 8.01-246]

Oral Contracts - 3 yrs. [VA Code Ann. § 8.01-246]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [VA Code Ann. § 8.2-725] (breach-of-warranty actions involving Personal Injury may fall under the 2-year statute)

 

The right of action shall be deemed to accrue and the limitation period shall begin to run from the date the injury is sustained in the case of injury to the person or damage to property, when the breach of contract occurs in actions ex contractu and not when the resulting damage is discovered [VA Code Ann. § 8.01-230]

 

 

 

 

 

 

 

 

 

Statute of Repose (Products) (VIRGINIA)

 

None.

 

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Admissibility of Expert Testimony (VIRGINIA)

 

The admission of expert testimony is committed to the sound discretion of the trial judge.  The trial court should refuse to admit expert testimony unless there is proof of a similarity of conditions existing at the time of the expert’s tests and at the time relevant to the facts at issue [Tarmac Mid-Atlantic v. Smiley Block Co., 458 S.E.2d 462 (Va. 1995)]

 

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Causes of Action (VIRGINIA)

 

Strict Liability – Not recognized in Virginia [Richmond, F. & P. R. Co. v. Davis Industries, Inc., 787 F. Supp. 572 (E.D. Va. 1992)].  Virginia has not adopted Rest. (2nd) of Torts, 402A [Sensenbrenner v. Rust, Orling & Neale, 374 S.E.2d 55 (Va. 1988)].

 

Recoveries for harm caused by defective products can be made as breach of an implied warranty of merchantability or under a negligence theory [Abbot v. American Cyanamid Co., 844 F.2d 1108 (4th Cir. Va. 1988)].

 

The standard of safety of goods imposed on the seller or manufacturer of a product is essentially the same whether the theory of liability is labeled warranty or negligence.  Under either the warranty theory or the negligence theory, Plaintiff must show that: (1) the goods were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose; and (2) that the unreasonably dangerous condition existed when the goods left the defendant's hands [Garrett v. I.R. Witzer Co., 518 S.E.2d 635 (Va. 1999)].

 

Lack of privity between the parties is not a defense [Va. Code Ann. § 8.01-223].

 

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Definition of “Defect” (VIRGINIA)

 

A product is “unreasonably dangerous” if: (1) defective in assembly or manufacture; (2) imprudently designed; or (3) not accompanied by adequate warnings about its hazardous properties [Abbot v. American Cyanamid Co., 844 F.2d 1108 (4th Cir. Va. 1988)].  A product can be unreasonably dangerous if imprudently designed and such a finding will support a claim for breach of the implied warranty of merchantability. Separate from the warranty claim, is a tort claim for negligent design.  In the former the focus is on the product and its attributes, in the latter, the focus is on the defendant's conduct [Abbot v. American Cyanamid Co., 844 F.2d 1108 (4th Cir. Va. 1988)].

 

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Liability of Sellers (VIRGINIA)

 

Anyone in the chain of distribution can be liable under negligence principles, although this requires a breach of the standard of care.  A retail dealer is liable where in making the purchase the purchaser relies on the skill and judgment of the dealer in selecting the product [Colonna v. Rosedale Dairy Co., 186 S.E. 94 (Va. 1936)].

 

 

 

 

 

 

 

 

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Defenses (VIRGINIA)      

 

Contributory Negligence – Virginia follows strict contributory neglignece (Plaintiff is barred from recovery even if 1% at fault) [Baskett v. Banks, 245 S.E.2d 173 (Va. 1947)].  Not a defense to a breach of warranty action [Lust v. Clark Equipment Co., 792 F.2d 436 (4th Cir. Va. 1986)].

 

Assumption of Risk – Virginia recognizes the defense of assumption of risk to actions based on breach of warranty or negligence.  Assumption of risk has two requirements: the nature and extent of the risk must be fully appreciated and the risk must be voluntarily incurred [Lust v. Clark Equipment Co., 792 F.2d 436 (4th Cir. Va. 1986)].

 

Product Misuse – There is no recovery against the manufacturer for breach of implied warranties when there has been an unforeseen misuse of the product [Featherall v. Firestone Tire & Rubber Co., 252 S.E.2d 358 (Va. 1979)].  In negligence cases, the doctrine of strict contributory negligence will preclude recovery as well.

 

Product Alteration/Modification – As part of his prima facie case, the plaintiff must prove that the “unreasonably dangerous” condition existed when the product left the manufacturer’s hands [Logen v. Montgomery Ward & Co., 219 S.E. 2d 685 (Va. 1975)]. Thus, alteration/modifications that cause the injury will relieve the defendant of liability.

 

 

 

 

 

 

 

 

 

Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (VIRGINIA)

 

Recognized/applied.

 

Under ELD, losses suffered as a result of the breach of a duty assumed only by agreement, rather than a duty imposed by law, remain the sole province of the law of contracts [Filak v. George, 594 S.E.2d 610 (Va. 2004)].  ELD applies in product liability cases [Burner v. Ford Motor Co., 2000 WL 33259938 (Va. Cir. Ct. 2000)].

 

 

 

 

 

 

 

 

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Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (VIRGINIA)

 

Not applicable/recognized.

 

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Design Defects (VIRGINIA)                                                                                                

 

A product is “unreasonably dangerous” if imprudently designed [Abbot v. American Cyanamid Co., 844 F.2d 1108 (4th Cir. Va. 1988)]. 

 

Virginia products liability law encompasses a risk-utility analysis in negligent design cases.  Liability for negligent design is imposed only when an unreasonable danger is created, and whether or not this has occurred should be determined by general negligence principles, which involve a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precautions which would be effective to avoid the harm [Blevins v. New Holland N. Am., Inc., 128 F. Supp. 2d 952 (W.D. Va. 2001)].

 

Evidence of similar accidents is not generally admissible for the purpose of proving negligence or causation. Such evidence may be admissible, however, to show notice or actual knowledge by the defendant of a defect in its product [Blevins v. New Holland N. Am., Inc., 128 F. Supp. 2d 952 (W.D. Va. 2001)].

 

Evidence of industry custom does not establish conclusively that due care was exercised.  However, such custom or usage may be conclusive when there is no evidence to show that it was not reasonably safe [Turner v. Manning, Maxwell & Moore, Inc., 217 S.E.2d 863 (Va. 1975)].

 

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Failure to Warn (VIRGINIA)

 

A product is “unreasonably dangerous” if not accompanied by adequate warnings about its hazardous properties [Abbot v. American Cyanamid Co., 844 F.2d 1108 (4th Cir. Va. 1988)]. 

 

The balancing of the following factors is required to determine the extent of a manufacturer’s duty to warn: (1) the dangerous condition of the product; (2) the purpose for which the product is used; (3) the form of any warnings given; (4) the reliability of the third party as a conduit of necessary information about the product; (5) the magnitude of the risk involved; and (6) the burdens imposed upon the supplier by requiring that he directly warn all users [Willis v. Raymark Industries, Inc., 905 F.2d 793 (4th Cir. Va. 1990)].

 

The duty is to give a reasonable warning, not the best possible one [Pfizer, Inc. v. Jones, 272 S.E.2d 43 (Va. 1980)].

 

Virginia does not observe a heeding presumption [Ford Motor Co. v. Boomer, 736 S.E.2d 724 (Va. 2013)].

 

 

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Independent Cause of Action for Evidence Spoliation (VIRGINIA)

 

Not addressed/recognized.