From Exclusivity to Equity: Rethinking Virginia's Restrictions on Civil Justice for Victims of Workplace Violence

A recent article from the Virginian-Pilot closely examined the legal hurdles presented by Virginia's work comp exclusivity provision, especially for the challenges it poses for victims of violent crime in their pursuit of civil justice.

Under Virginia law, employees who are victims of workplace violence generally cannot seek civil justice from their employers but are relegated to pursuing a workers’ compensation claim—a half-loaf remedy at best.  “Work comp” claims largely ignore the long term physical and psychological damage violent crime creates, and the bar to civil suits applies even if the employers’ actions were reckless or even intentional.

In the article, I suggested a straightforward solution: holding businesses accountable for workplace violence the employer could reasonably have anticipated and nonetheless failed to act reasonably to prevent.  That solution incentivizes business to protect employees (and patrons) from foreseeable risks of violent crime without demanding the prevention of all criminal activity. Our Legislature should recognize the importance of empowering victims and provide them the option of seeking civil justice or pursuing a work comp claim.

This treatment of employees invites a broader examination of how Virginia treats victims of violent crime who patronize businesses, such as mall patrons, hospital patients, university students and residents of sprawling apartment complexes.  Virginia's Supreme Court, with a few exceptions, has insulated these entities from responsibility, ruling that violent crime is generally “unforeseeable.”  That conclusion is simply wrong. Violent crime can be and is regularly foreseen by shopping malls, bars, universities or apartment complexes, especially where patrons have been victimized in the past. That’s why premises often employ security cameras, security officers and increasingly more sophisticated measures to stop crime.

In many states if serious crime is reasonably foreseeable to a premises owner, and the owner ignores that risk and refuses to take reasonable precautions to protect patrons, patrons victimized as a result may seek civil justice for the often brutal physical and psychological injuries they suffer. I commented on the importance of such reform in the aftermath of the Walmart shootings in Virginia and implore lawmakers in Virginia to provide Virginians with the same opportunity for civil justice.

Businesses, if accountable for failing to act reasonably, would have a societal incentive to enhance safety measures, fostering a safer environment for employees and patrons alike. Recognizing the trauma experienced by crime victims is crucial for their healing process, and fair treatment in the legal system acknowledges and respects the physical emotional toll they suffer.