The Virginia Tort Claims Act: It’s Not Enough to be Ordinary

  • April 14, 2010
  • Blog

Editors Note: Under the old English common law, on which much of American law is based, a person could not sue the king or “sovereign government”. This prohibition was carried over into American common law, and prevents claims against the government. However, this absolute prohibition has been changed in most states in some ways by written statutes. In Virginia, one of these ways is the Virginia Tort Claims Act, which allows civil claims for damages to go forward against the Commonwealth of Virginia and its subsidiary agencies and political subdivisions under certain circumstances. This article describes the Act and some of those circumstances.

The Virginia Tort Claims Act 1 (hereinafter, “VTCA”) is a statutory mechanism providing a threshold of immunity to employees of the Commonwealth of Virginia only as to those civil claims for damages arising from ordinary negligence. 2 The VTCA will not state employees or the state government when the damages result from gross negligence or intentional torts. Gross negligence is characterized by a complete lack of care on the defendant’s part and has been defined as the absence of slight diligence or the want of even scant care. As a general matter, it is usually up to the jury to decide whether the defendant acted with gross negligence. 3 However, gross negligence does not exist as a matter of law if the defendant showed some degree of care.

The VTCA limits a plaintiff’s damages to one hundred thousand dollars ($100,000) for claims arising out of “damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any [Commonwealth] employee while acting within the scope of his employment.” 4 Liability of the Commonwealth under the VTCA rests solely on a “negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth . . ., if a private person, would be liable to the claimant for such damage, loss, injury, or death.” 5 The Virginia Supreme Court, however, has held that the VTCA applies only to claims of ordinary negligence, and not to claims of gross negligence or to intentional torts. 6So the limitation to $100,000.00 only applies in cases of ordinary negligence.

The several standards defining gross negligence enunciated by the Supreme Court of Virginia include, as a common thread, a complete lack of care exhibited by a defendant. Gross negligence has been defined as:

that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another. It is a heedless and palpable violation of legal duty respecting the rights of others. Gross negligence amounts to the absence of slight diligence, or the want of even scant care.” Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691 (1987) (citations omitted).

Thus, a claim for gross negligence cannot go forward, as a matter of law, in those cases where a defendant exercised some degree of care toward the plaintiff. 7

For example, the case of Whitley v. Commonwealth 8 involved a wrongful death lawsuit against doctors and nurses at a correctional facility. The Virginia Supreme Court upheld a trial court’s ruling that the defendants did not act with gross negligence, as a matter of law, because the plaintiff could not show they did not exercise “at least some degree of care” towards the patient who died. Similarly, in the case of Colby v. Boyden 9, the Virginia Supreme Court found that a defendant police officer, who was involved in a motor vehicle collision with the plaintiff, did not act with gross negligence because he exercised “some degree” of diligence and due care for the safety of others.

Despite requiring a plaintiff to show the defendant exercised a total lack of care, gross negligence does not require a showing of willful recklessness. 10

Despite these holdings, however, it remains the rule that when reasonable minds could come to different conclusions, gross negligence is an issue of fact to be decided by the jury. 11 It will become a question of law (and thus decided by the judge, not the jury) only when reasonable minds could not differ in concluding gross negligence has not been established. 12

By way of illustration, in the Whitley case, a medical malpractice case mentioned above, the deceased person was a mentally impaired person with an epileptic condition who required constant medication to prevent the onset of seizures. He died from a seizure while incarcerated. The Administrator of his Estate claimed that the doctor was grossly negligent in allowing the deceased inmate’s medication levels to fall below the amount appropriate for his condition, by failing to prescribe sufficient medication and by failing to supervise the inmate’s taking of the medication. Although the Court ultimately decided the case on other grounds, it noted that, as a matter of law, the defendant physician did not act with gross negligence because he exercised some care towards the deceased inmate by reviewing his blood samples, counseling him regarding the importance of taking medication, and assessing his capability of following a daily medication regimen. 13 The Court went on to note that even though the decedent did not take his medication 100% of the time while under the defendant’s care, the fact that he did take it approximately 85% of the time was sufficient to show that the defendant doctor exercised at least some care.

In sum, generally speaking, the VTCA will protect employees of the Commonwealth of Virginia from claims for ordinary negligence, but will not afford employees protection with respect to claims for gross negligence or intentional torts. If reasonable minds could differ on whether a defendant acted with gross negligence, the question is one for a fact-finder; however, if reasonable minds could not differ, the question is one for a judge to decide as a matter of law. 


1 Va. Code § 8.01-195 et seq.

2 For a brief explanation of sovereign immunity in the context of medical malpractice cases in Virginia, please refer to the author’s January 12, 2010 entry, “Sovereign Immunity for State Doctors: When it is Good to be the King’s Doctor.”

3 Under Virginia Model Jury Instruction No. 4.030, which is the definition of gross negligence usually read to the jury as an instruction of law which they should apply to the case they are to decide, “gross negligence” is defined as follows: ” ‘Gross negligence’ is that degree of negligence which shows such indifference to others as constitutes an utter disregard of caution amounting to a complete neglect of the safety of another person. It is such negligence as would shock fair-minded people, although it is something less than willful recklessness. Note the instruction is altered if the claim is for damage to property to include those damages also.

4 Va. Code § 8.01-195.3.

5 Id.

6 James v. Jane, 221 Va. 43, 53, 282 S.E.2d 864 (1980).

7 Whitley v. Commonwealth, 260 Va. 482, 538 S.E.2d 296(2000).

8 Id.

9 Colby v. Boyden, 241 Va. 125, 400 S.E.2d 184 (1991),

10 Laster v. Tatum, 206 Va. 804, 146 S.E.2d 231 (1966).

11 Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691 (1987) (citations omitted).

12 Id.

13Whitley v. Commonwealth, 260 Va. 482, at 490.