How does comparative fault work in Virginia?

1. Negligence Elements. Virginia negligence requires duty, breach, proximate cause, and damages (Burns v. Gagnon, 283 Va. 657). Duty arises from relationship or undertaking.

2. Comparative Fault Regime — Pure Contributory Negligence. Virginia is one of only four states (plus DC) that still applies pure contributory negligence: "if the plaintiff was guilty of any negligence which contributed to his injury, no matter how slight, his recovery is barred." Smith v. Va. Elec. & Power Co., 204 Va. 128; Baskett v. Banks, 186 Va. 1022. The Virginia General Assembly has consistently declined to adopt comparative fault. FELA and Federal Employers Liability cases tried in Virginia state court do apply pure comparative under 45 U.S.C. § 53.

3. Joint and Several Liability. Virginia retains joint and several liability for joint tortfeasors. Va. Code § 8.01-35.1 governs effect of releases. Contribution among joint tortfeasors under Va. Code § 8.01-34 requires concurrent negligence and would-be liability to plaintiff.

4. Last Clear Chance / Sudden Emergency. Last clear chance is a critical escape valve in Virginia. The doctrine (Greear v. Noland Co., 197 Va. 233) allows a contributorily negligent plaintiff to recover if defendant had the last clear opportunity to avoid harm and failed. Willful, wanton, or reckless conduct also defeats contributory negligence (Booth v. Robertson, 236 Va. 269). Sudden emergency persists.

5. Settling Tortfeasors. Va. Code § 8.01-35.1 — release of one tortfeasor does not release others unless terms so provide; verdict reduced by amount stipulated or paid.

6. Statute of Repose vs SOL. Personal injury SOL is 2 years (Va. Code § 8.01-243). Med-mal cap incorporates SOL of 2 years (§ 8.01-243.1). Construction repose is 5 years (§ 8.01-250). No general product repose.

7. Caps. Medical malpractice total damages cap under Va. Code § 8.01-581.15 — currently approximately $2.65 million for 2026 (rises $50,000/year), one of the few all-damages caps in the country. Punitive damages capped at $350,000 (§ 8.01-38.1).

8. Wrongful Death Contributory. Va. Code § 8.01-50 wrongful death applies contributory negligence; decedent's fault bars beneficiaries unless last clear chance.

9. Worker Injuries. Va. Code § 65.2-307 WC exclusivity. Third-party suits subject to contributory negligence.

This is legal information, not legal advice.