When someone is injured because another person or company acted carelessly, the next question is who owed a legal duty to act safely — and where did that duty come from.
This question is at the heart of Virginia’s “Source of Duty” Rule, a key principle that determines whether a case is based on negligence or simply a broken promise under contract law. For anyone pursuing a personal injury claim, understanding this rule is essential.
What is the Source of Duty Rule?
Under Virginia law, people and businesses can owe a duty of care toward others in two different scenarios:
- Through a contract — for example, a contractor promises to complete a home renovation pursuant to the usual building code requirements and safety standards.
- Through common law or statute — such as the general legal duty of care that every driver owes to others.
If someone violates a contractual promise, that’s generally a breach of contract.
If they violate a legal duty of care recognized by Virginia common law (case law) or statute, that’s negligence — and the case falls under Virginia personal injury law.
Some situations may involve both.
This is where the Source of Duty Rule in Virginia comes into play: it tells courts whether a lawsuit should proceed as a tort claim (negligence) or a contract dispute.
Why It Matters in Virginia Personal Injury Cases
For a Virginia personal injury attorney to prove negligence, they must show that:
- The tortfeasor owed you a legal duty of care
- That duty was breached through careless or unsafe conduct
- The breach caused your injury and damages
If the only duty arises from a contract, Virginia courts often treat it solely as a contract claim. But when the careless act goes beyond the bounds of the contract and causes physical harm, a Virginia tort claim may exist.
This distinction determines whether you can recover for personal injury, including medical bills, lost wages, and pain and suffering — or only for contractual damages.
Real-World Example: Contract vs. Negligence
Imagine hiring a contractor to build a deck:
- If the contractor never shows up, it’s a breach of contract.
- If the contractor stores their dangerous equipment out in the open without protection or warning and departs for the day, and then your child happens to be playing outside and trips and falls onto the exposed equipment sustaining injury – that’s negligence.
The difference? In the second case, the contractor violated a recognized legal duty of care to perform work safely, not just a contractual promise.
How Virginia Courts Apply the Rule
The Virginia Supreme Court most recently explained this concept in Tingler v. Graystone Homes, Inc., 298 Va. 63 (2019).
The Court drew a line between:
- Nonfeasance — failing to act as promised (usually contract), and
- Misfeasance — acting carelessly and causing harm (potential tort).
The Court suggested that cases of nonfeasance are less likely to involve an established duty of care and are more likely to sound solely in contract. On the other hand, cases involving misfeasance, where the tortfeasor has gone beyond the bounds of the contract and caused injury not contemplated by the contract, are more likely to sound in negligence.
A negligence attorney in Virginia would need to carefully consider this principle and the Court’s findings in Tingler in order to determine whether a client’s injuries can be pursued in court as a tort claim.
The Court’s decision in Tingler drew upon its reasoning in an earlier case, Kaltman v. All Am. Pest Control, Inc., 281 Va. 483 (2011), successfully argued to the Virginia Supreme Court by Attorney Gobind Sethi.
Where the Source of Duty Rule Commonly Appears
- Premises Accidents (including Slip and Falls)
Property owners often contract with other companies to maintain and secure their property. If a maintenance company’s negligence injures someone on-site, the law may recognize a tort duty in addition to the service contract. - Construction and Maintenance Accidents
If a company performs unsafe work that leads to injury (for example, faulty wiring causing a fire), the case may involve both contract and negligence claims. - Landlord–Tenant Injuries
Under the Virginia Residential Landlord and Tenant Act, landlords have certain contractual duties which are embodied in the lease agreements signed by tenants. But when a landlord creates an unsafe condition — such as performing a faulty repair that leaves the premises in a hazardous state — a tenant may have a negligence claim.
How an Attorney Uses This Rule
A skilled Virginia personal injury lawyer carefully analyzes:
- Who owed the duty to the injured person
- Where that duty came from — contract, statute, or common law
- Whether the act was careless (misfeasance) or simply undone (nonfeasance)
At Sethi & Sledd, PLLC, we are deeply familiar with the Source of Duty Rule in Virginia. Samantha Sledd even recently presented on the topic at a Virginia Trial Lawyers Association (VTLA) Premises Liability Seminar. Our familiarity with this issue will ensure we take the time to carefully consider whether and how it applies to your case. This attention to detail will help prevent dismissal and strengthen your recovery path.
The Source of Duty Rule isn’t just legal theory — it’s a cornerstone of Virginia tort law.
It determines who is legally responsible for unsafe actions and whether your injury case can proceed as negligence, thus allowing you to recover for your medical bills, lost wages, pain and suffering, and other damages.
If you’ve been injured by someone’s careless or unsafe conduct, contact Sethi & Sledd, PLLC for a free consultation with a trusted Virginia personal injury lawyer who knows how to build a case on solid legal ground.
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