Virginia: Statutory Civil Law
Contents
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Stalking
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Introduction
This statute provides a civil cause of action for violations of the criminal stalking statute.
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Text of Statute(s)
Va. Code Ann. § 8.01-42.3 - Civil action for stalking.
A. A victim has a civil cause of action against an individual who engaged in conduct that is prohibited under § 18.2-60.3, whether or not the individual has been charged or convicted for the alleged violation, for the compensatory damages incurred by the victim as a result of that conduct, in addition to the costs for bringing the action. If compensatory damages are awarded, a victim may also be awarded punitive damages.
B. As used in this section:
“Compensatory damages” includes damages for all of the defendant's acts prohibited by § 18.2-60.3.
“Victim” means a person who, because of the conduct of the defendant that is prohibited under § 18.2-60.3, was placed in reasonable fear of death, criminal sexual assault, or bodily injury to himself or to a minor child of whom the personis a parent or legal guardian.
C. No action shall be commenced under this section more than two years after the most recent conduct prohibited under §18.2-60.3.
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Practice Pointers
The civil cause of action for stalking may be brought even if criminal charges are never filed against the defendant, or if the defendant is charged but not convicted of criminal stalking.
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Racial, Religious, or Ethnic Harassment
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Introduction
The only civil harassment statute in Virginia is for racial, religious, or ethnic harassment.
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Text of Statute(s)
Va. Code Ann. § 8.01-42.1 - Civil Action for racial, religious, or ethnic harassment, violence or vandalism.
A. An action for injunctive relief or civil damages, or both, shall lie for any person who is subjected to acts of (i) intimidation or harassment or (ii) violence directed against his person; or (iii) vandalism directed against his real or personal property, where such acts are motivated by racial, religious, or ethnic animosity.
B. Any aggrieved party who initiates and prevails in an action authorized by this section shall be entitled to damages, including punitive damages, and in the discretion of the court to an award of the cost of the litigation and reasonable attorneys' fees in an amount to be fixed by the court.
C. The provisions of this section shall not apply to any actions between an employee and his employer, or between or among employees of the same employer, for damages arising out of incidents occurring in the workplace or arising out of the employee-employer relationship.
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Practice Pointers
This statute may be useful only insofar as the underlying conduct is motivated by racial, religious, or ethnic animosity.
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Defamation
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Introduction
Virginia has a robust civil statute for “insulting words,” which does not require a statement be false, but does require that the statement tend to cause “violence and breach of the peace.” Virginia additionally has common law protections against defamation. However, the statutes reserve liability for defamation against publishers, including newspapers and their employees, broadcasters, and online publishers.
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Text of Statute(s)
Va. Code Ann. § 8.01-45 - Action for insulting words.
All words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.
Va. Code Ann. § 8.01-48 - Mitigation in actions against newspapers, etc.
In any civil action against the publisher, owner, editor, reporter or employee of any newspaper, magazine or periodical under § 8.01-45, or for libel or defamation, because of any article, statement or other matter contained in any such newspaper, magazine or periodical, the defendant, whether punitive damages be sought or not, may introduce in evidence in mitigation of general and punitive damages, or either, but not of actual pecuniary damages, all the circumstances of the publication, including the source of the information, its character as affording reasonable ground of reliance, any prior publication elsewhere of similar purport, the lack of negligence or malice on the part of the defendant, the good faith of the defendant in such publication, or that apology or retraction, if any, was made with reasonable promptness and fairness; provided that the defendant may introduce in evidence only such circumstances and to the extent set forth in his or its grounds of defense.
Va. Code Ann. § 8.01-49 - Defamatory statements in radio and television broadcasts.
The owner, licensee or operator of a radio and television broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of any such broadcast, by one other than such owner, licensee or operator, or agent or employee thereof, unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator, such agent or employee, failed to exercise due care to prevent the publication or utterance of such statement in such broadcast; provided, however, that in no event shall any owner, licensee or operator, or the agents or employees of any such owner, licensee or operator of such a station or network of stations be held liable for damages for any defamatory statement broadcast over the facilities of such station or network by or on behalf of any candidate for public office.
Va. Code Ann. § 8.01-49.1 - Liability for defamatory material on the Internet.
A. No provider or user of an interactive computer service on the Internet shall be treated as the publisher or speaker of any information provided to it by another information content provider. No provider or user of an interactive computer service shall be liable for (i) any action voluntarily taken by it in good faith to restrict access to, or availability of, material that the provider or user considers to be obscene, lewd, lascivious, excessively violent, harassing, or intended to incite hatred on the basis of race, religious conviction, color, or national origin, whether or not such material is constitutionally protected, or (ii) any action taken to enable, or make available to information content providers or others, the technical means to restrict access to information provided by another information content provider.
B. Definitions. As used in this section:
“Information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
“Interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
“Internet” means the international computer network of interoperable packet-switched data networks.
Va. Code Ann. § 8.01-247.1 - Limitation on action for defamation, etc.
Every action for injury resulting from libel, slander, insulting words, or defamation shall be brought within one year after the cause of action accrues.
If a publisher of statements actionable under this section publishes anonymously or under a false identity on the Internet, an action may be filed under this section and the statute of limitations shall be tolled until the identity of the publisher is discovered or, by the exercise of due diligence, reasonably should have been discovered.
Va. Code Ann. § 8.01-46 - Justification and mitigation of damages.
In any action for defamation, the defendant may justify by alleging and proving that the words spoken or written were true, and, after notice in writing of his intention to do so, given to the plaintiff at the time of, or for, pleading to such action, may give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so in case the action shall have been commenced before there was an opportunity of making or offering such apology.
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Elements
While “Action for Insulting Words” is the statutory provision for defamation, causes of action for common law defamation require: (1) publication of (2) an actionable statement with (3) the requisite intent. To be actionable, the statement must be both false and defamatory.1 Statements of opinion are generally not actionable, because such statements cannot be objectively characterized as true or false. Speech which does not contain a provably false factual connotation, or statements which cannot reasonably be interpreted as stating actual facts about a person, cannot form the basis of a common law defamation action. The plaintiff in a defamation action has the burden of proving the statement is false, and a plaintiff may not rely on minor or irrelevant inaccuracies to state a claim. Whether a plaintiff has sufficiently proven the falsity is a jury question.2 The requisite intent a plaintiff must prove in a defamation action depends upon the plaintiff’s status as a public or private figure, and damages sought. Public figures must show actual malice, and to recover punitive damages, all plaintiffs must show actual malice.3 Additionally, in libel actions not based on per se defamation, where knowing falsity or reckless disregard for the truth is not shown, compensatory damages are limited to the actual damages proved to have been sustained, which are not limited to out-of-pocket loss. Elements such as damage to reputation, standing in the community, embarrassment, humiliation, and metal suffering are considered actual injury.4 Actions for defamation must be brought within one year after the cause of action accrues.5
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Cases
- Jordan v. Kollman, 612 S.E.2d 203 (Va. Sup. Ct. 2005).
- Procedural Posture: The trial court jury awarded Plaintiff compensatory damages of $75,000 and punitive damages of $125,000, plus pre-judgment interest of $4,990.26. Both parties appealed.
- Law: Defamation.
- Facts: Plaintiff, the then-mayor of the city, sued an advertiser who placed two ads in the newspaper calling for the election of the other candidate, alleging the ads defamed him. Plaintiff said the ads falsely stated that he voted to approve over 200 mainly federally subsidized low-income rentals. Plaintiff alleged that the statements were malicious and libelous per se, and that they caused him to suffer impairment of reputation, diminished standing in the community, personal humiliation, injury and embarrassment, emotional distress and mental anguish, and professional harm.
- Outcome: Finding there was insufficient evidence in the record to support by clear and convincing evidence the ads were published with actual malice, the court reversed the trial court’s judgment for the Plaintiff.
- Fleming v. Moore, 275 S.E.2d 632 (Va. Sup. Ct. 1981).
- Procedural Posture: The trial court jury awarded Plaintiff $10,000 in compensatory damages and $100,000 in punitive damages.
- Law: Libel.
- Facts: Plaintiff, a white university professor, sued Defendant, a black real estate broker and developer, for libel after Defendant published a paid advertisement in two newspapers claiming Plaintiff was racist because he opposed the construction of high rise buildings near his home, which would serve predominantly black, lower-middle income tenants.
- Outcome: While Plaintiff was entitled to recover compensatory damages based on his actual damages, to the extent emotional upset and embarrassment cannot constitute “special damages,” the award should be modified.
- Special Notes: This case indicates that emotional upset and embarrassment may not be sufficient for an award of punitive damages.
- Jordan v. Kollman, 612 S.E.2d 203 (Va. Sup. Ct. 2005).
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Practice Pointers
- A plaintiff may bring claims under the statutory and common law causes of action for defamation, but each has different requirements.
- For a claim under the statutory cause of action, the plaintiff must show that the defendant’s words against the plaintiff were “insults,” and those words have a tendency to cause violence or breaches of the peace. Notably, the plaintiff does not have to prove that the defendant’s words about the plaintiff were false, so this cause of action may provide a remedy even when the underlying statement is true, for example, if the defendant posted a true photo of the plaintiff. While a plaintiff may be able to show that a photo is insulting, it will be difficult for a plaintiff to show a photo of him or herself tends to cause violence, or a breach of the peace.
- For a claim under the common law cause of action, the plaintiff must show that the defendant made a false and defamatory statement of fact about the plaintiff. It is unlikely that a plaintiff could show that a true photo of him or herself is “false” so as to give rise to a defamation claim. However, an edited photo could be considered false and defamatory.
- Under the common law cause of action, a plaintiff may be entitled to actual damages because of the injury to the plaintiff’s reputation or standing in the community, embarrassment, humiliation, and mental suffering. However, emotional upset and embarrassment are likely not sufficient for an award of punitive damages.
↑ Back to top- Tharpe v. Saunders, 737 S.E.2d 890, 892 (Va. Sup. Ct. 2013). ↩
- Jordan v. Kollman, 612 S.E.2d 203, 207 (Va. Sup. Ct. 2005). ↩
- Id. ↩
- Fleming v. Moore, 275 S.E.2d 632, 639 (Va. Sup. Ct. 1981). ↩
- Cominelli v. Rector and Visitors of University of Va., 589 F. Supp. 2d 706, 718 (W.D. Va. 2008). ↩
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Injury Resulting from Violation of Computer Crimes Act
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Introduction
This statute provides a civil cause of action for violations of the criminal Computer Crimes Act.
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Text of Statute(s)
Va. Code Ann. § 8.01-40.1 - Action for injury resulting from violation of Computer Crimes Act; limitations.
Any person whose property or person is injured by reason of a violation of the provisions of the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.) may sue and recover damages as provided in § 18.2-152.12. An action shall be commenced before the earlier of (i) five years after the last act in the course of conduct constituting a violation of the Computer Crimes Act or (ii) two years after the plaintiff discovers or reasonably should have discovered the last act in the course of conduct constituting a violation of the Computer Crimes Act.
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Practice Pointers
- Discussed in greater detail in the Criminal Law section, the Virginia Computer Crimes Act prohibits individuals who use a computer or computer network without authority to obtain property under false pretenses, or converting the property of another. The civil statute provides an additional civil remedy for violations of this criminal statute.
- If a defendant acquired plaintiff’s photo from the plaintiff’s computer without permission or under false pretenses, the plaintiff may be able to argue that the defendant committed computer fraud.
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Breach of Contract
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Introduction
The Virginia breach of contract statute protects against breaches of signed contracts under which there is an obligation to pay money.
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Text of Statute(s)
Va. Code Ann. § 8.01-27 - Civil action on note or writing promising to pay money.
A civil action may be maintained upon any note or writing by which there is a promise, undertaking, or obligation to pay money, if the same be signed by the party who is to be charged thereby, or his agent. The action may also be maintained on any such note or writing for any past due installment on a debt payable in installments, although other installments thereof be not due.
Va. Code Ann. § 8.01-28 - When judgment to be given in action upon contract or note unless defendant appears and denies claim under oath.
In any action at law on a note or contract, express or implied, for the payment of money, [. . .] or both, if (i) the plaintiff files with his motion for judgment or civil warrant an affidavit made by himself or his agent, stating therein to the best of the affiant's belief the amount of the plaintiff's claim, that such amount is justly due, and the time from which plaintiff claims interest, and (ii) a copy of the affidavit together with a copy of any account filed with the motion for judgment or warrant, [. . .] the plaintiff shall be entitled to a judgment on the affidavit and statement of account without further evidence unless the defendant either appears and pleads under oath or files with the court before the return date an affidavit or responsive pleading denying that the plaintiff is entitled to recover from the defendant on the claim. A denial by the defendant in general district court need not be in writing. The plaintiff or defendant shall, on motion, be granted a continuance whenever the defendant appears and pleads. If the defendant's pleading or affidavit admits that the plaintiff is entitled to recover from the defendant a sum certain less than that stated in the affidavit filed by the plaintiff, judgment may be taken by the plaintiff for the sum so admitted to be due, and the case will be tried as to the residue.
In the event of a defect in the affidavit, the plaintiff shall be entitled to a continuance.
Va. Code Ann. § 8.01-246 - Personal actions based on contracts.
Subject to the provisions of § 8.01-243 regarding injuries to person and property and of § 8.01-245 regarding the application of limitations to fiduciaries, and their bonds, actions founded upon a contract, other than actions on a judgment or decree, shall be brought within the following number of years next after the cause of action shall have accrued:
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2. In actions on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not;
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4. In actions upon any unwritten contract, express or implied, within three years.
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Cases
- Foreign Mission Bd. of S. Baptist Convention v. Wade, 409 S.E.2d 144 (Va. Sup. Ct. 1991)
- Procedural Posture: The trial court dismissed a negligence count, and submitted the case to a jury on the breach of contract claim. The jury returned a verdict in favor of Plaintiffs, awarding $1.5 million in damages. Defendants appealed and Plaintiffs cross-appealed to the Supreme Court of Virginia.
- Law: Breach of contract.
- Facts: A child of a missionary family reported that her father had sexually molested her to the church’s associate director, who told the child not to repeat her statements to anyone. The associate director confronted the child’s father, and he admitted the abuse, but refused to tell his wife or attend counseling until he returned to the United States. When the family returned to the United States, the child told her mother that her father had sexually abused her. Before leaving for their mission, the parents entered an oral contract with the church whereby if the couple became missionaries, the church would provide protection for the health, welfare, and safety of their family. The mother and her children sued the church alleging negligence and breach of contract for failing to secure medical care for the child, inform the mother, and protect the children from further abuse, after knowing of the father’s abuse.
- Outcome: The Court held that no reasonable person could conclude that the mother and church intended their oral contract to encompass the felonious acts of the father, and reversed the lower court judgment. Additionally, the Court held that punitive damages were improper in an action for breach of contract.
- Special Notes: Read broadly, this case may indicate that two parties could not intend their oral contract to extend to a third party’s felonious acts (where the third party’s acts were not specifically included in the contract). With respect to nonconsensual posting of intimate photos, this may indicate that if there were a valid contract relating to the photos between a subject and another contracting party that did not specifically mention a third party’s unlawful acts, if a third party posted those photos without the subject’s consent, the subject would not have a claim for breach of contract against the other contracting party.
- Foreign Mission Bd. of S. Baptist Convention v. Wade, 409 S.E.2d 144 (Va. Sup. Ct. 1991)
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Practice Pointers
Breach of contract may only be useful if there is a relevant signed contract between the plaintiff and defendant in which either party has an obligation to pay money. However, a contract between the parties will likely not be considered breached because of a third party’s unlawful acts.
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Injunctions and Damages
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Introduction
Virginia statute contains relatively few provisions on injunctions and damages, limiting injunctions for breaches of contracts, and limiting the total amount of punitive damages that can be awarded.
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Text of Statute(s)
Va. Code Ann. § 8.01-33 - Equitable relief in certain cases.
A court shall not grant equitable relief in a suit upon a bond, note, or writing, by an assignee or holder thereof, unless it appears that the plaintiff had no adequate remedy thereon at law.
Va. Code Ann. § 8.01-35 - Damages for loss of income not diminished by reimbursement.
In any suit brought for personal injury or death, provable damages for loss of income due to such injury or death shall not be diminished because of reimbursement of income to the plaintiff or decedent from any other source, nor shall the fact of any such reimbursement be admitted into evidence.
Va. Code Ann. § 8.01-38.1 - Limitation on recovery of punitive damages.
In any action accruing on or after July 1, 1988 [. . .] the total amount awarded for punitive damages against all defendants found to be liable shall be determined by the trier of fact. In no event shall the total amount awarded for punitive damages exceed $350,000. The jury shall not be advised of the limitation prescribed by this section. However, if a jury returns a verdict for punitive damages in excess of the maximum amount specified in this section, the judge shall reduce the award and enter judgment for such damages in the maximum amount provided by this section.
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Practice Pointers
- An injunction will only be awarded for a breach of contract if there is no adequate monetary remedy.
- If a plaintiff is suing for provable lost income, any reimbursement of income the plaintiff previously received will not reduce the amount of damages awarded for lost income.
- Punitive damages up to $350,000 may be awarded against all defendants found liable under Virginia’s civil statutes. The jury will not be advised of the limitation, and if they return a verdict for punitive damages greater than $350,000, the judge will reduce the punitive damages award to $350,000.
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Statutes of Limitations
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Introduction
Civil causes of action under Virginia statute and common law are subject to common statutes of limitations, unless specified otherwise in other statutes.
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Text of Statute(s)
Va. Code Ann. § 8.01-230 - Accrual of right of action.
In every action for which a limitation period is prescribed, the right of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person or damage to property, when the breach of contract occurs in actions ex contractu and not when the resulting damage is discovered, except where the relief sought is solely equitable or where otherwise provided under § 8.01-233, subsection C of § 8.01-245, §§ 8.01-249, 8.01-250 or other statute.
Va. Code Ann. § 8.01-243 - Personal action for injury to person or property generally; extension in actions for malpractice against health care provider.
A. Unless otherwise provided in this section or by other statute, every action for personal injuries, whatever the theory of recovery, and every action for damages resulting from fraud, shall be brought within two years after the cause of action accrues.
B. Every action for injury to property, including actions by a parent or guardian of an infant against a tort-feasor for expenses of curing or attempting to cure such infant from the result of a personal injury or loss of services of such infant, shall be brought within five years after the cause of action accrues.
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D. Every action for injury to the person, whatever the theory of recovery, resulting from sexual abuse occurring during the infancy or incapacity of the person as set forth in subdivision 6 of § 8.01-249 shall be brought within 20 years after the cause of action accrues.
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Practice Pointers
- The statute of limitations for personal injury actions is two years; injury to property is five years; sexual abuse of a minor or incapacitated person is twenty years.
- Unauthorized use of a name or picture, violation of the Computer Crimes Act, and breach of contract are property injuries, subject to the five year statute of limitations.
- Stalking, harassment, and defamation are personal injuries, subject to the two year statute of limitations.
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