United States: Product Liability

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This country-specific Q&A provides an overview to product liability laws and regulations that may occur in Virginia (United States).

This Q&A is part of the global guide to product liability. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/product-liability/

  1. Please summarise the main legal bases for product liability

    “A manufacturer is not required to supply an accident-proof product. Rather, the standard of safety of goods imposed on the manufacturer of a product is essentially the same whether the theory of liability is labeled warranty or negligence. The product must be fit for the ordinary purposes for which it is to be used.” Jeld-Wen, Inc. v. Gamble by Gamble, 256 Va. 144, 148 (1998) (internal citations and quotations omitted). In Virginia, a plaintiff can proceed under “alternative theories of liability”: negligence and breach of warranty. See id. at 147.

  2. What are the main elements which a claimant must prove to succeed in a strict liability type claim for damage caused by a defective product?

    Virginia has not adopted strict liability in tort and does not permit recovery in tort on a strict liability theory in products liability cases. See Evans v. NACCO Materials Handling Grp., Inc., 295 Va. 235, 246 (2018); see also Harris v. T.I., Inc., 243 Va. 63, 71 (1992).

  3. With whom does liability sit? If there is more than one entity liable, is liability joint and several?

    N/A

  4. Are any defences available? If so, please summarise them.

    N/A

  5. What is the limitation period for bringing a claim?

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  6. To what extent can liability be excluded (if at all)?

    N/A

  7. What are the main elements which a claimant must prove to succeed in a non-contractual (eg tort) claim for damage caused by a defective product?

    To recover in a product liability action in Virginia, a plaintiff must prove that: (1) the goods were unreasonably dangerous for ordinary or reasonably foreseeable use; (2) the unreasonably dangerous condition existed when the goods left the defendant’s control; and (3) the defective product proximately caused plaintiff’s injuries. See Logan v. Montgomery Ward & Co., Inc., 216 Va. 425, 428 (1975); see also Garrett v. I.R. Witzer Co., 258 Va. 264, 267-68 (1999); see also Evans v. Nacco Materials Handling Grp., Inc., 295 Va. 235, 246 (2018) (“Whether a plaintiff proceeds under a theory of warranty or negligence, the plaintiff must prove: (1) that 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.”). These elements are essentially the same whether a plaintiff sues for negligence or breach of warranty. See Benedict v. Hankook Tire Co., Ltd., 295 F. Supp. 3d 632, 640 (E.D. Va. 2018) (“Virginia largely has abandoned the distinctions between negligence and non-negligence causes of action in products liability actions.”).

  8. What types of damage/loss can be compensated and what is the measure of damages? Are punitive damages available?

    In Virginia, a plaintiff may recover compensatory damages for past, present, and future medical expenses; lost earnings; pain and suffering; impaired future earning capacity; and permanent disability as long as it can be proven to a reasonable degree of certainty. See, e.g., Hailes v. Gonzales, 207 Va. 612, 614 (1996). Proof with mathematical precision is not required; however, a plaintiff must provide sufficient evidence to support an intelligent and probable estimate of damages. Id. at 614. Punitive damages are recoverable if the plaintiff can prove the defendant’s conduct was wanton, willful, malicious, and/or evinces a conscious disregard of the rights of others. See Doe v. Isaacs, 265 Va. 531, 535 (2003). “[A]n award of compensatory damages . . . is an indispensible predicate for an award of punitive damages, except in actions for libel and slander.” Syed v. ZH Techs., Inc., 280 Va. 58, 74-75 (2010).

  9. How are multiple tortfeasors dealt with? Is liability joint and several? Can contribution proceedings be brought?

    In Virginia, each tortfeasor is jointly and severally liable to the plaintiff for the full amount of plaintiff’s damages caused by their negligence when involved in a joint enterprise or when the joint tortfeasors’ actions produce a single indivisible injury. See Alban Tractor Co. v. Sheffield, 220 Va. 861, 863 (1980); Dickenson v. Tabb, 208 Va. 184, 192-93 (1967). “Contribution among wrongdoers may be enforced when the wrong results from negligence and involves no moral turpitude.” Va. Code Ann. § 8.01-34. “A person who enters into a release or covenant not to sue with a claimant is not entitled to recover by way of contribution from another person whose liability for the injury, property damage or wrongful death is not extinguished by the release or covenant not to sue, nor in respect to any amount paid by the person which is in excess of what was reasonable.” Va. Code § 8.01-35.1.

  10. Are any defences available? If so, please summarise them.

    Yes, many defenses are available. A few of the most common defenses are summarized below; however, depending on the facts and circumstances of your specific case, other defenses may also be available.

    Assumption of risk: Assumption of risk is a complete defense to a negligence action and requires the showing that the plaintiff fully appreciated the nature and extent of the risk and voluntarily chose to assume it. Thurmond v. Prince William Prof’l Baseball Club, Inc., 265 Va. 59, 64 (2003); Va. Elec. & Power Co. v. Dungee, 258 Va. 235, 250 (1999).

    Contributory negligence: Contributory negligence is a complete defense to a negligence action and requires a determination of whether a plaintiff’s failure to exercise ordinary care for his own safety proximately contributed to his injury regardless of defendant’s negligence. See RGR, LLC v. Settle, 288 Va. 260, 283-84 (2014); Ford Motor Co. . Bartholomew, 224 Va. 421, 432 (1982).

    Misuse: A plaintiff cannot recover against a manufacturer if the plaintiff has misused the product in a manner not reasonably foreseeable. See Cooper Indus., Inc. v. Melendez, 260 Va. 578, 590 (2000). In addition, any alteration that is causally related to plaintiff’s injury could relieve a defendant from liability. See Morgen Indus., Inc. v. Vaughan, 252 Va. 60, 66 (1996).

    Open and Obvious: “When the dangerous condition is obvious and patent to all, the manufacturer of the product is not liable for injury to the user.” Morgen Indus., 252 Va. at 69.

    Learned Intermediary: A manufacturer of prescription drugs has been held to only have a duty to warn the physician not the patient of potential risks of the product. See Pfizer, Inc. v. Jones, 221 Va. 681, 684 (1980).

    Mitigation: The defendant has the burden to prove that the plaintiff failed to mitigate damages. See Forbes v. Rapp, 269 Va. 374, 380 (2005).

    Damage to Product: Absent privity of contract, a plaintiff cannot bring a negligence action to recover for damage to the defective product itself. See Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 236 Va. 419, 424-25 (1988).

    Sophisticated User: The United States Court of Appeals for the Fourth Circuit, interpreting Virginia law, has recognized the sophisticated user defense where a defendant is relieved of liability when a product is supplied to an individual whom the defendant believes will act to protect the safety of himself and others. See, e.g., Buettner v. R.W. Martin & Sons, Inc., 47 F.3d 116, 120 (4th Cir. 1995).

    Workers’ Compensation Bar: The Virginia Workers’ Compensation Act is the sole and exclusive remedy against an employer for an employee injured at work. See Va. Code § 65.2-307(A).

  11. What is the limitation period for bringing a claim?

    Generally, personal injury claims must be brought within two years of accrual. Va Code §§ 8.01-243(A), 8.01-246. Claims for damaged property must be brought within five years of accrual. Va Code § 8.01-243(B). If the property at issue was subject to a sales contract, the limitation period becomes four years. Va Code §§ 8.01-246, 8.2-725(1).

  12. To what extent can liability be excluded (if at all)?

    Virginia takes a critical view on a non-manufacturer’s attempts to escape liability. Indeed, if the buyer reasonably believes the defendant to be the manufacturer, the defendant can be held liable for defects and related injuries to the same extent, and on the same grounds, as the manufacturer. See, e.g., Carney v. Sears, Roebuck & Co., 309 F.2d 300, 305 (4th Cir. 1962) (“The fact that the defendant did not at any time say it was the manufacturer of the product is immaterial if there were reasonable grounds to believe it to be the manufacturer.” (citation omitted)).

  13. Does the law imply any terms into B2B or B2C contracts which could impose liability in a situation where a product has caused damage? If so, please summarise.

    Generally, “[i]mplied warranties arise by operation of law without regard to the expressed intention of the parties . . . .” See Carney v. Sears, Roebuck & Co., 309 F.2d 300, 303 (4th Cir. 1962).

  14. What types of damage/loss can be compensated and what is the measure of damages?

    In Virginia, a plaintiff may recover compensatory damages for past, present, and future medical expenses; lost earnings; pain and suffering; impaired future earning capacity; and permanent disability as long as it can be proven to a reasonable degree of certainty. See, e.g., Hailes v. Gonzales, 207 Va. 612, 614 (1996). Proof with mathematical precision is not required; however, a plaintiff must provide sufficient evidence to support an intelligent and probable estimate of damages. Id. at 614. Punitive damages are recoverable if the plaintiff can prove the defendant’s conduct was wanton, willful, malicious, and/or evinces a conscious disregard of the rights of others. See Doe v. Isaacs, 265 Va. 531, 535 (2003). “[A]n award of compensatory damages . . . is an indispensable predicate for an award of punitive damages, except in actions for libel and slander.” Syed v. ZH Techs., Inc., 280 Va. 58, 74-75 (2010).

  15. To what extent can liability be excluded (if at all)?

    In Virginia, “to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.” Va. Code § 8.2-316. Va. Code §8.1A-201 defines conspicuous as “written, displayed, or presented [in a manner] that a reasonable person against whom it is to operate ought to have noticed it.”

  16. Are there any recent key court judgements which have had a significant impact on the approach to product liability?

    Yes, a few opinions that will impact product liability litigation in Virginia are:

    Holiday Motor Corp v. Walters, 292 Va. 461 (2016): The Supreme Court of Virginia held that an auto manufacturer did not have a duty to provide rollover protection rejecting the “crashworthiness doctrine.” Moreover, the Supreme Court noted that the plaintiff’s expert testimony—even if the defendant owed a duty—was inadmissible for lack of adequate foundation. This decision is a stark move towards requiring Virginia state courts to maintain a gate-keeping function akin to the federal district courts that did not previously exist.

    Dorman v. State Indus., Inc., 292 Va. 111 (2016): The Supreme Court of Virginia affirmed the trial court’s allowance of other possible causes evidence and the issuance of a superseding cause jury instruction.

    Evans v. Nacco Materials Handling Grp., Inc., 295 Va. 235, 251 (2018): The Supreme Court of Virginia held that the plaintiff failed to prove defendant’s product was unreasonably dangerous and that the jury had rejected an alternative theory of a failure to warn.

  17. What are the initial litigation related steps you should take if you are facing a product liability claim or threatened claim?

    Upon receiving a claim or threatened claim, a defendant shall take the necessary steps to preserve relevant evidence to avoid any negative spoliation inference. See, e.g., Emerald Point, LLC v. Hawkins, 294 Va. 544, 556-59 (2017).

    The defendant should also begin to develop the necessary evidence to properly respond to a plaintiff’s complaint. In Virginia, a defendant must file a responsive pleading within 21 days after service of process. Va. Sup. Ct. R. 3:8. If the defendant chooses to answer the complaint, an attorney may face sanctions for asserting affirmative defenses that lack a sufficient factual basis as the ability to reserve an affirmative defense is likely unavailable. See Ford Motor Co. v. Benitez, 273 Va. 242, 251-52 (2007). However, Va. Sup. Ct. R. 3:18 allows for the affirmative defenses of contributory negligence and statute of limitations to be pled generally.

  18. Are the courts adept at handling complex product liability claims? Are cases heard by a judge or jury?

    Both the United States Courts for the Eastern and Western Districts are well adept at handling complex product liability claims if the claim can properly be removed from state court. If the claim cannot be removed, many Virginia state courts also are well adept to handle these complex cases. As long as properly demanded, juries decide complex product liability claims. See, e.g., Va. Sup. Ct. R. 3:21.

  19. Is it possible to bring a product liability related group action? If so, please summarise the types of procedure(s) available

    Virginia does not provide a mechanism for class action claims in state court. Federal Rule of Civil Procedure 23, however, allows federal courts in Virginia to proceed with class actions.

    Virginia’s Multi Claim Litigation Act, Va. Code § 8.01-267.1, et seq., provides a mechanism to join, coordinate, consolidate, or transfer multiple individual actions that involve common questions of law or fact and arise out of the same transaction, occurrence or series of transactions or occurrences.

  20. How are cases typically funded? Can lawyers charge success fees? Is third party funding permissible?

    Many plaintiffs’ attorneys take complex product liability cases on a contingency fee basis based on a predetermined, agreed-upon percentage. Virginia Legal Ethics Opinion 1764 suggests that third party funding of litigation by a non-lawyer (such as a financial institute) is impermissible. See also Virginia Legal Ethics Opinion 1047 (attorney’s fee may not be shared with a group of medical experts), 1438 (attorney’s fee may not be shared with an advertising firm); Virginia Legal Ethics Opinion1676 (attorney’s fee may not be shared with an electronic tracking firm).

  21. How common are product liability claims and what factors influence their frequency?

    Products liability claims are becoming increasingly common. Many factors contribute to the frequency of these claims include but are not limited to: (1) plaintiffs’ counsel familiarity with such claims; (2) media coverage; (3) consumer expectations; (4) the economy; and (5) increased advances in technology.

  22. What are the likely future developments in product liability law and practice? To what extent is the suitability of the law being challenged by advances in technology?

    Products liability law and practice will continue to grow and refine with technological developments. These developments will have a significant impact on the future of products liability law and require courts to grapple with many issues and scenarios that are unique. One example that comes to mind is self-driving cars. While these issues will requires courts to make many first impression decisions on issues, it is unlikely to upend the sustainability of products liability litigation. In addition, jury trials will be different because it will be difficult to explain these more complex, autonomous advancements to jurors.