Virginia Injury Law: The Rules That Decide a Claim

Virginia injury rules at a glance

The table below lists the rules that come up in almost every Virginia injury claim. Each is explained further down this page and in the linked guides.

Contributory negligence: the fault rule

Virginia follows contributory negligence. If the person bringing the claim is found even slightly at fault for the accident, they are generally barred from recovering anything. Most states instead use comparative fault, which reduces an award by the injured person’s share of blame. Virginia is one of only a few jurisdictions that never made that change.

The rule has three important limits:

• Last clear chance. A plaintiff who was negligent can still recover if the defendant had the last clear opportunity to avoid the harm and failed to take it.
• Willful and wanton conduct. Contributory negligence is not a defense when the defendant acted willfully or wantonly, as opposed to merely carelessly.
• Young children. Children under 7 are presumed incapable of negligence, so a young child’s own conduct is not held against them.

Because a single fact can decide the whole case, insurers investigate the injured person as closely as their own customer. Our full guide to Virginia’s contributory negligence rule explains how the defense is raised and answered.

How long you have to file in Virginia

The general deadline to file a personal injury lawsuit in Virginia is two years from the date of injury, under Va. Code § 8.01-243(A). Claims for damage to property have five years, under § 8.01-243(B). A wrongful death action must be filed within two years of the death, under Va. Code § 8.01-244(B).

Several kinds of claims follow different timing. Medical malpractice has limited exceptions to the two-year rule and special rules for children. Asbestos disease claims run from when the diagnosis is first communicated to the person. Virginia’s statute of limitations also contains special provisions for childhood sexual abuse claims. Government claims carry written notice deadlines that expire long before the lawsuit deadline.

The Virginia statute of limitations guide sets out every deadline in one table. For sexual abuse claims, see the separate page on the Virginia sexual abuse statute of limitations.

The insurance rules that decide who pays

Virginia has no personal injury protection (PIP) and no no-fault system. After a crash, the at-fault driver and their liability insurer are responsible for the injuries. Three coverage rules shape how that works in practice:

• Minimum liability limits are set by Va. Code § 46.2-472. Serious injuries often cost more than those minimums.
• Uninsured and underinsured motorist coverage must be part of every Virginia auto policy under Va. Code § 38.2-2206. In a hit-and-run, the claim proceeds against the unknown “John Doe” driver and your own uninsured motorist carrier. See uninsured and hit-and-run claims.
• Medical expense benefits (MedPay) are optional coverage under Va. Code § 38.2-2201. If you bought it, it pays medical bills up to the policy amount without waiting for fault to be settled. Our medical payments coverage guide explains how it works.

Two more rules matter in crash cases. Not wearing a seat belt generally cannot be used to show negligence or to reduce damages, under Va. Code § 46.2-1094. And under Virginia’s collateral source rule, payments from your own health insurance generally do not reduce what the at-fault party owes.

What you can recover, and the caps that apply

Compensatory damages repay the losses an injury causes. In a Virginia personal injury claim they typically include:

• Past and future medical expenses
• Lost earnings and reduced ability to earn
• Physical pain, mental anguish, inconvenience and disfigurement
• Property damage, such as vehicle repair or replacement

Outside medical malpractice and claims against the government, Virginia sets no general cap on compensatory damages. Three limits apply in specific situations:

• Punitive damages, which punish especially reckless conduct, are capped at $350,000 under Va. Code § 8.01-38.1. Virginia law specifically allows punitive damages against certain intoxicated drivers, under Va. Code § 8.01-44.5. See drunk driver accident claims.
• Medical malpractice has a total damages cap, adjusted each July 1, under Va. Code § 8.01-581.15. Read about Virginia medical malpractice laws.
• Claims against the Commonwealth under the Virginia Tort Claims Act are limited in amount.

No page can tell you what a claim is worth. The severity and permanence of the injury, the treatment needed, lost income, the insurance available and how clearly the evidence shows fault all affect value.

Claims against a government in Virginia

When the party at fault is a public body, notice deadlines arrive long before the two-year lawsuit deadline, and immunity rules can limit the claim:

• Counties, cities and towns: written notice generally within six months, under Va. Code § 15.2-209. Local governments have immunity for many governmental functions.
• The Commonwealth of Virginia: written notice within one year under the Virginia Tort Claims Act, Va. Code § 8.01-195.6. The Act limits the amount recoverable.
• The United States: an administrative claim to the federal agency within two years, under the Federal Tort Claims Act and 28 U.S.C. § 2401(b).
• Metro (WMATA): an interstate compact agency that keeps immunity for governmental functions and allows tort claims for others. See Metro accident claims in Virginia.

Our guide to government claim notice in Virginia covers who gets notice and how to avoid missing it.

Wrongful death and survival claims

A Virginia wrongful death action is brought by the personal representative of the person who died, under Va. Code § 8.01-50. The family members who share in any recovery are set by § 8.01-53. Damages under § 8.01-52 include sorrow and mental anguish, lost income and services, and medical and funeral expenses. There is no general cap on wrongful death damages.

Separately, a personal injury claim survives the injured person’s death under Va. Code § 8.01-25, so a claim that existed before death does not disappear. Which path applies depends on the facts. Read more about Virginia wrongful death claims.

Which Virginia court hears an injury case

Virginia general district courts hear personal injury and wrongful death claims up to $50,000, under Va. Code § 16.1-77, without a jury. Larger claims, and cases where a jury trial is wanted, go to circuit court.

For an injury in Fairfax County, that means the Fairfax County General District Court or Circuit Court, both in the judicial center on Chain Bridge Road near our Fairfax office. Arlington, Alexandria, Prince William County and Loudoun County have their own courts. See our page on Fairfax County Circuit Court injury cases.

Rules that apply to specific kinds of claims

• Medical malpractice. Before serving suit, the plaintiff must have a written opinion from a qualified expert witness supporting the claim, under Va. Code § 8.01-20.1. Virginia applies a statewide standard of care, § 8.01-581.20.
• Dog bites. Virginia has no general strict-liability dog bite statute. Liability usually depends on the owner’s knowledge of the dog’s dangerous tendencies or on negligence, such as a leash ordinance violation. See Virginia dog bite claims.
• Defective products. Virginia does not recognize strict liability in tort for defective products. Claims proceed in negligence and breach of warranty. See product liability claims.
• Property hazards. Owners owe invitees reasonable care: keeping the premises reasonably safe and warning of hidden dangers they knew or should have known about. See slip and fall claims.
• Work injuries. Workers’ compensation is generally the exclusive remedy against an employer, under Va. Code § 65.2-307, but a negligent third party can be sued separately. See Virginia workers’ compensation.