A Virginia law that took effect on July 1, 2025, has expanded the potential liability of employers in certain personal injury and wrongful death actions. Under Virginia’s traditional standard for vicarious liability, an employer could only be held liable for the tortious acts of its employee if the employee acted within the scope of employment. Virginia Code § 8.01-42.6 changes the landscape. The law provides a mechanism to hold employers liable for their employees’ tortious acts under certain circumstances involving “vulnerable victims,” regardless of whether the tortious conduct arose while the employee was performing a job-related service for the employer.

Under § 8.01-42.6, in an action brought against an employee by a vulnerable victim, or by the personal representative of a deceased vulnerable victim, the employer may be held liable if:

1. The employee’s tortious conduct occurred while the employee was reasonably likely to be in contact with the vulnerable victim, and such conduct proximately caused personal injury or death to the vulnerable victim;
2. The employer failed to exercise reasonable care to:
   a. Prevent the employee from intentionally harming such a vulnerable victim; or
   b. Control the employee resulting in an unreasonable risk of a vulnerable victim suffering personal injury or death;
3. The employer knew or should have known of the ability to control the employee; and
4. The employer knew or should have known of the necessity and opportunity for exercising such control over the employee.

For purposes of this statute, a “vulnerable victim” is any person who is at a substantial disadvantage relative to an employee due to the circumstances, including the person’s physical or mental condition or characteristics. The statute also lists some individuals who are considered vulnerable victims as a matter of law, including:

• Patients of health care providers;
• People with legally recognized disabilities;
• Residents of assisted living facilities;
• Passengers of common carriers;
• Passengers of nonemergency medical transportation carriers; and
• Business invitees of massage therapy businesses or esthetics spas.

Importantly, this is a non-exhaustive list, and the law implies that whether an individual outside of these categories will be deemed a vulnerable victim requires a context-specific analysis.

While we have yet to see any cases decided under this new statute, the focus remains on the employer-employee relationship. Thus, we do not view this law as imposing potential liability on an employer for any acts of its employee; there must still be some nexus to the employment relationship and some ability of the employer to control the employee.

Quite simply, with the passage of Virginia Code § 8.01-42.6, the General Assembly added another layer of risk for employers, and it shifted the focus of the vicarious liability inquiry from the nature of the tortious act to the facts known to the employer and the actions taken in response. Employers must be mindful of this shift, which could impact a host of functions for employers of all types, including hiring practices and applicant screening, employee oversight and discipline, and incident monitoring and response, among others.

Because Section 8.01-42.6 only recently became law, it is hard to predict how it will be administered and interpreted by courts and juries. As it stands, it appears the definition of “vulnerable victim” is broad enough to encompass a wide range of potential plaintiffs and, in turn, a wide range of claims. Consequently, Virginia employers should examine their policies and practices to ensure they adequately guard against future liability. The Spilman labor and employment team stands ready to assist employers in navigating this new legal framework.