§ 8.01-42.6.Liability of employer for personal injury or death by wrongful act.

Subsection A supplies an additional path to employer vicarious liability alongside traditional course-and-scope-of-employment doctrine, tailored to situations where an employee harms someone especially vulnerable to that employee. In an action for personal injury or death by wrongful act brought by a vulnerable victim, or the personal representative of a deceased vulnerable victim, against an employee, the finder of fact determines whether the employer is vicariously liable based on four findings: that the employee’s tortious conduct occurred while reasonably likely to bring the employee into contact with the vulnerable victim and proximately caused the injury or death; that the employer failed to exercise reasonable care to prevent the employee from intentionally harming the victim or to control the employee, resulting in an unreasonable risk of harm; that the employer knew or should have known of its ability to control the employee; and that the employer knew or should have known of the necessity and opportunity for exercising that control.

Subsection B defines “vulnerable victim” as anyone at a substantial disadvantage relative to an employee because of circumstances such as physical or mental condition, and as a matter of law includes a patient of a health care provider, a person under a disability under § 8.01-2, a resident of an assisted living facility, several categories of common-carrier passengers (with exclusions for certain transit services), a passenger of a nonemergency medical transportation carrier, and a business invitee of an esthetics spa or a massage-therapy business.

Subsection C makes the four findings questions of fact, places the burden of proof on the plaintiff, and leaves the employer free to raise any available affirmative defenses.