Over the last several years, Virginia courts of been scaling back the ability for sexual assault victims to hold employers liable for assaults committed by their employers. Fortunately, the General Assembly stepped in and acted. And as of July 1, 2025, a new statute is in place that seeks to address this important issue.
What was the problem?
Far too often, victims reach out to attorneys like us to inform us that, tragically, they’ve been sexually assaulted. Many of these calls come from individuals who were assaulted by employees during some of the most vulnerable settings such as during a massage or treatment by a doctor or therapist. And over the last several years, we’ve had to have difficult discussions with victims given the developing case law out of Virginia courts.
Indeed, unless victims were able to specifically show that an employer had specific knowledge of prior bad acts of the employee, the employer was often let off the hook.
A seminal case was that of Our Lady of Peace, Inc. v. Morgan, 297 Va. 832 (2019). There, a nursing assistant at a nursing home brutally sexually assaulted an 85-year-old resident. At the time, the victim was “weak, ill, partially paralyzed…and unable to cry out for help.” While we’ll spare you of the horrific facts of what the employee did, he was ultimately caught because another employee walked in and caught him in the act. Later he made incriminating statements to law enforcement.
At trial, the court directed a verdict against the nursing home finding that it was liable for its employees’ acts given that he assaulted the victim while he was on the job. However, the Virginia Supreme Court reversed the trial court finding that there needed to be a detailed analysis as to whether the employee had motive to benefit the employer when he assaulted the victim:
It is possible to hypothesize how such acts could occur “while the employee was in fact performing a specific job-related service for the employer” and “while [the employee was] actively engaged in a job-related service,” …. Martin’s job-related services included undressing residents, changing their undergarments and diapers, as well as bathing them. If Martin’s acts of molestation occurred simultaneously with his performance of these job-related services, a reasonable jury could infer that he acted from a mixed motive and not “wholly from some external, independent, and personal motive…”
Later, in H.C. v. Potomac Hosp. Corp. of Prince William, 81 Va. App. 1 (2024), the Virginia Court of Appeals found outright that an employer (a hospital) was not liable for the acts of its employee (a nurse) when he sexually assaulted the victim while she was inpatient. In that case, a patient was admitted to the defendant hospital when the employee, a “floating nurse” sexually assaulted her. In supporting this finding, the Court found that the employee had already completed his work duties, despite having assaulted the victim while she was still in her hospital bed, and that by obtaining the victim’s telephone number – contrary to ‘acceptable’ hospital practice – the evidence “indicated that [the employee] was on his own mission rather than that of this employer.”
Given this line of cases, it became virtually impossible to hold employers liable for the assaults of their employees unless victims could somehow prove the assaults were actually committed to benefit its employers.
So, what did the Virginia General Assembly do?
Thanks in part to a lot of advocacy work, including the Virginia Trial Lawyers Association, the General Assembly passed Virginia Code Section 8.01-42.6 (Liability of employer for personal injury or death by wrongful act).
This statute effectively shifted the analysis of holding employers liable for the assaults of their employees. Now, the question was not what the intent was of the employee. Instead, it focuses on “vulnerable victims” who given the nature of the work of the employers are left vulnerable to potential assaults.
Specifically, the statute defines “vulnerable victim” to mean any person who is at a substantial disadvantage relative to an employee due to circumstances, including such person’s physical or mental condition or characteristics, and includes:
- Health care patients;
- Residents of assisted living facilities;
- Common carrier passengers;
- Customers of esthetic spas;
- Customers of massage therapist.
To be clear, the new statute doesn’t automatically make employers liable when vulnerable victims are assaulted. Indeed, the statute leaves it to jurors to find vicarious liability when it finds:
- The employee’s tortious conduct occurred while the employee was reasonably likely to be in contact with the vulnerable victim and such conduct proximately causes personal injury to such vulnerable victim or the death of such vulnerable victim by wrongful act;
- The employer failed to exercise reasonable care to (i) prevent the employee from intentionally harming such vulnerable victim or (ii) control the employee resulting in an unreasonable risk of a vulnerable victim suffering personal injury or death by wrongful act;
- The employer knew or should have known of the ability to control the employee; and
- The employer knew or should have known of the necessity and opportunity for exercising such control over the employee.
This New Statute Seems Confusing. What does it mean?
Yes, the language of Section 8.01-42.6 is complex. And it leaves a lot to be decided by a jury. Given that it’s brand new (at the time of writing this article), there are still many questions to be answered by litigation. However, we believe that the statute is a giant step in the right direction.
Rather than focusing on what the employee’s intention was during an assault, it focuses on the victims and what the employer should have done given the nature of their business. So, while this statute won’t protect everyone, it provides some daylight for victims placed in harm’s way in specific settings.
Still have questions?
Make sure to check out our Personal Injury & Criminal Defense Practice Pages where we’ve answered many other questions you likely have. Abrenio Law is a Personal Injury & Criminal Defense Law Firm representing individuals in Northern Virginia and throughout the Commonwealth. You can learn more about Abrenio Law by visiting our About Us page. You can also read about some of our Prior Results, and Read Our Reviews. Make sure to contact us at Ph. 703-570-4180 for your Free Consultation.