On May 2, 2025 Virginia Governor Glen Youngkin signed into law HB1730 and SB894, which will become Virginia Code Section 8.01-42.6, requiring the finder of fact to determine whether an employer is vicariously liable for its employee’s tortious acts. This new law provides a four-part test for determining when an employer is vicariously liable and should enable victims of sexual abuse torts to recover in circumstances where the abuser’s employer would not have been vicariously liable under Virginia Supreme Court precedents. This change in the law will expand the potential liability of employers such as massage parlors, assisted living facilities and daycare facilities.
Abuse or Assault Suffered Prior to July 1 2025: Employee must have been performing a specific, job-related service at the moment they committed the abuse or assault, and the court can take away a verdict if it cannot imagine a motive to serve the employer.
Under the doctrine of respondeat superior, “an employer is liable for the tortious act of his employee if the employee was performing his employer’s business and acting within the scope of his employment.” The injured party seeking recovery against the employer of an employee who harmed them only needs to be able to say that there an employment relationship at the time of the tort to put the burden on the employer to prove the employee was not acting within the scope of employment. So in principle an injured party can proceed to trial against the employer for the employee’s actions simply by stating in their lawsuit that the defendant employee was employed by the employer. Even so, a plaintiff can essentially plead herself out of court where she alleges it is clear from her allegations that was not performing the normal functions of his job when he committed the tortious act, and/or if the employee had no motive to serve his employer’s business purposes.
The Virginia Supreme Court therefore observed in a case in which a nursing assistant harmed a paralyzed woman that it would have “considerable difficulty” finding that an allegation of rape occurred simultaneously with the employee’s job-related tasks of undressing, bathing and changing the undergarments of the victim. But the Court could imagine, on the other hand, how “acts of touching, sexually abusing, and molesting” the victim could have occurred within the course of performing the same job-related tasks of undressing, bathing, and changing the undergarments of residents. Similarly, in a case in which a retired but still active pastor sexually molested the plaintiff while she was a minor, the Virginia Supreme Court said that it was “difficult to conceive” that the molestation “stemmed from anything other than a desire for self-gratification and also constituted a marked and unusual deviation from his employer’s business.”
The job-related-service requirement under existing Virginia precedent makes it difficult if not impossible for victims of sexual assault and especially sexual abuse to recover against their attacker’s employer, as those acts do not often resemble employment duties. Under current precedents, the trial court can rule on the employer’s liability as a matter of law whenever the “deviation from the employer’s business is slight on the one hand, or marked and unusual on the other,” notwithstanding the presumption the employee was acting within the course and scope of employment that arises when the plaintiff alleges an employment relationship. Trial courts are thus invited to scrap the cases with alleged tortious conduct that appears unrelated to the employee’s job duties, which naturally will deprive victims of a remedy in the most extreme cases where they need relief the most.
Virginia Code Section 8.01-42.6 enables recovery when the employer fails to exercise ordinary care to control their employee resulting in foreseeable harm to a vulnerable victim.
Beginning July 1, 2025, it will be up to the jury or the court sitting without a jury to determine whether the employer is vicariously liable by considering whether the employer acted reasonably to control their employee to prevent them from harming a vulnerable victim with whom the employee was reasonably likely to have contact. The factfinder must find that:
- 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.
Although the test is designed to determine vicarious liability, it appears to create a new duty of care for employers and is in a sense a theory of direct liability, as it requires the employer to exercise reasonable care essentially to protect at least certain people—vulnerable victims—from intentional harms or those that can be foreseen by the failure to control the employee. The statute also premises liability on the foreseeability of harm by requiring a finding that the employer knew or should have known of the “necessity…for exercising control over the employee”, that is, controlling the employee is necessary because something about the employee or their history signals dangerousness.
Who is a vulnerable victim? Anyone “who is at a substantial disadvantage relative to an employee due to circumstances, including such person’s physical or mental condition or characteristics.” The statute provides examples of people who by definition are vulnerable victims:
- A patient of a healthcare provider like a doctor, hospital, or registered nurse
- A person under a disability, such as persons convicted of a felony while they are confined, infants (person under age 18), or incapacitated persons
- A resident of assisted living facilities
- A passenger of a common carrier
- A passenger of a non-emergency medical transportation carrier
- A business invitee of an esthetics spa
- A business invitee of a business offering massage therapy
Those who do not fit into any of these categories will need to persuade the factfinder they were a vulnerable victim by their substantial disadvantage relative to the employee under the circumstances. But by protecting the foregoing vulnerable victims, the new law will prevent repetition of some of the worst outcomes under prior case law, such as employers escaping liability for the rape of incapacitated nursing home residents by their attendants, the rape of children by their religious leaders, and the fondling and abuse of visitors to massage parlors and spas.
For abuse inflicted before July 1, 2025, employers may argue essentially that they were not paying their employee to assault or abuse anyone and that they therefore cannot be vicariously liable, but under the new law the employer may be accountable if they knew of their employee’s propensities but failed to control the employee and protect the vulnerable victim. This change in the law will be a great help to Virginians trying to obtain full redress for their injuries against all responsible parties, including the negligent employer.
Contact Hendell Law Firm if you or your loved one have been injured by the actions of an employee of an employer who should have known their employee and kept them under control to safeguard others who might be harmed.
