What is a tort?

A tort is difficult to define as it includes a wide range of civil wrongs including actions for assault, battery, false imprisonment, trespass, negligence, and defamation. The basic definition is that a tort is a private or civil wrong or injury, other than breach of contract, for which the injured party can seek damages. There are three elements of every tort action: the existence of a legal duty to another; violation or breach of that duty; and damages resulting from that breach.

Can Virginia Tech be sued for torts?

Yes, to a limited extent. Virginia Tech is an agency of the Commonwealth of Virginia and protected by the state’s sovereign immunity. In the absence of express statutory or constitutional provisions waiving immunity, the Commonwealth and its agencies are immune from liability for the tortious acts or omissions of their agents and employees. An express but limited waiver of the Commonwealth's immunity from tort claims was provided by the enactment of the Virginia Tort Claims Act in 1981 (Act).

Under the Act, claims against the Commonwealth can be brought in an appropriate circuit court. While allowing suits for tortious acts, the Act limits recovery to $100,000 per cause of action.

How does this apply to contracts?

Sponsors frequently attempt to limit their liability for tortious acts or to obtain agreement that Virginia Tech will assume full liability for all damages caused by acts of its employees. Virginia Tech can only be responsible for tortious acts to the extent allowed by the Virginia Tort Claims Act or to the extent covered by insurance. 

What exception should be taken?

Virginia Tech is an agency of the Commonwealth of Virginia and protected by the state’s sovereign immunity.  In the absence of express statutory or constitutional provisions waiving immunity, the Commonwealth and its agencies are immune from liability for the tortious acts or omissions of their agents and employees.  Virginia Tech can only be responsible for tortious acts to the extent allowed by the Virginia Tort Claims Act or to the extent covered by insurance. 

What alternate language can be used?

The University is and will be acting as an independent contractor in the performance of this work, and it shall be solely responsible where found liable to the extent covered by insurance or specified by statute, whichever is lower,  for payment of those claims for loss, personal injury, death, property damage, or otherwise, arising out of any act or omission of its employees or agents in connection with the performance of this work.  Nothing contained herein shall be deemed an express or implied waiver of the sovereign immunity of the Commonwealth of Virginia.

Please see explanation of Sovereign Immunity (pdf file) from the Office of General Counsel.