Negligence

Question 1

Negligence Rule

Answer 1

D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risk of injury to others.

Question 2

Negligence Foreseeability

Answer 2

D owes this duty only to those persons inside the geographic zone of danger at the time of D’s negligence.

Question 3

Negligence Rescuers

Answer 3

o Rescuers owed an independent duty (per se foreseeable Ps).
o Nonprofessional rescuers are foreseeable P’s as a matter of policy and can recover against negligent party creating need.

(EX) Della negligently fails to maintain a stool in her ice cream parlor. Xena falls to the ground. Parker runs across the ice cream parlor to help Xena, but slides on the ice cream Xena dropped when she fell, breaking his ankle.
Under Palsgraf, Parker would not be owed a duty but Xena is. As a matter of policy, because Parker is a rescuer, he is owed a duty.

Question 4

Nonfeasance

Answer 4

Failure to intervene/confer benefit on the P.

Question 5

When is there a duty to rescue?

Answer 5

▪ D’s tortious conduct creates need to rescue.
▪ Special relationship of dependence or mutual dependence (carrier/passenger, inn keeper/guest, captain/passengers, drinking buddies).

Question 6

Common law requirements of rescuer

Answer 6

At common law, if a person opts to undertake a rescue, even if he/she doesn’t have a duty to do so, he/she must act reasonably.

Question 7

VA Good Samaritan Law

Answer 7

Protects from liability for ordinary negligence someone who:
● in good faith provides emergency aid w/o compensation to ill/injured:
● at scene of accident/fire/emergency
● en route to hospital

Question 8

Duty to Control Third Parties

Answer 8

There is no duty to control the conduct of a third party as to prevent harm to another.

EXCEPT When a special relationship between D and the third party gives the third party a right of protection or imposes a duty on D to control the third party’s conduct.

● EX: The prison has a duty to warn people in the neighborhood of escaped prisoner.
● EX: She must warn the babysitter that son always tries to kill babysitters.
● EX: Psychotherapist - duty to warn a specific party who might be in danger.

Question 9

Providers of Alcohol Rule (Traditional and in VA)

Answer 9

Purveyor not responsible for DUI injuries.

Question 10

Dram Shop Acts

Answer 10

Impose liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a third party.
o These acts typically do not apply to social hosts, but only to those who are licensed to sell alcohol.

Question 11

Do Dram Shop Acts apply in VA?

Answer 11

NO - not against establishments or social hosts

Question 12

Negligent Entrustment

Answer 12

● When D gives something dangerous to someone D knows or should know is not competent to handle it (i.e. Father gives gun to a small child who shoots P).

Question 13

Duty to Protect

Answer 13

▪ Generally, there is no duty to protect another person from third party criminal conduct (nonfeasance) unless:
● Special relationship: landlord/tenant, business/invitee.

Question 14

Duty to Protect in VA

Answer 14

Landlord has duty to protect tenant against third-party criminal actor if heightened degree of foreseeablity based on prior conduct

● P must show in imminent danger of harm from criminal assault by third party of which Ds were aware

Question 15

Government Duty (MBE)

Answer 15

Depends on Function

Question 16

Government Duty (MBE) - Proprietary Function

Answer 16

(acting in private area): Treated as any other D for duty analysis

Question 17

Government Duty (MBE) -Discretionary Activity

Answer 17

(using judgment and allocating resources i.e. setting policy): Courts will not find a duty.

Question 18

Government Duty (MBE) - Ministerial Function

Answer 18

Duty once government has undertaken to act (Ex: stop sign installed incorrectly leading to accident).

Question 19

Government Duty (MBE) - Public Duty Doctrine

Answer 19

Courts find no duty when professional rescuers (police officers/firefighters) fail to provide an adequate response, except when:
● there is a special relationship between P and the agency; or
● the agency has increased the danger beyond what would otherwise exist.

Question 20

VA Government Immunity

Answer 20

absolute sovereign immunity

Question 21

VA Gov’t immunity - municipalities

Answer 21

sovereign immunity protects municipalities from tort liability only arising from exercise of gov’t functions

Question 22

Government function definition

Answer 22

Function is governmental if it involves the exercise of political, discretionary or legislative authority

(ex) designing streets = governmental; maintaining them = ministerial

Question 23

Government Employees Immunity

Answer 23

only if acting w/in scope of their employment BUT NOT if they exceed their authority or engage in gross or willful and wanton conduct

Question 24

What does 4 factors does a court consider to determine whether ordinary gov’t employee is entitled to protection of sovereign immunity for particular act?

Answer 24

1. nature of function performed by the employee
2. extent of the state interest and involvement in the function
3. degree of control and direction exercised by the state over the employee
4. whether the act involved use of judgment and discretion

Question 25

Virginia Tort Claims Act

Answer 25

creates limited waiver of immunity for:
(1) property damage or personal injury (2) caused by negligent or wrongful act or omission of any gov’t employee while (3) acting in scope of his employment

Question 26

Virginia Tort Claims Act Damages

Answer 26

Max damage award = $100,000 OR limit of any liability insurance policy maintained against such negligence (whichever is greater)

Question 27

Who does the Virginia Tort Claims Act apply to?

Answer 27

Applies ONLY to Commonwealth and certain transportation districts

DOES NOT waive sovereign immunity for agencies of the Commonwealth

Question 28

Duty issues arise when

Answer 28

P’s injury is not personal injury or property damages

Question 29

Negligent Infliction of Emotional Distress (NIED) Rule

Answer 29

D engages in negligent conduct and, as a result, P suffers emotional distress that has some sort of physical manifestation.

Question 30

NIED Requirements

Answer 30

● Most jurisdictions require that P be in the zone of danger, meaning at risk of physical harm.
● P must have suffered a physical manifestation of the emotional distress, which proves genuineness.

Question 31

NIED Requirements Exceptions

Answer 31

o D negligently shares information about the death of a loved one.
o D negligently mishandles a corpse.

Question 32

NIED - if P isn’t physically injured, can recover under three categories:

Answer 32

(1) near-miss rule
(2) bystander rule
(3) relationship cases rule

Question 33

Near-miss rule

Answer 33

negligent D did not hurt P but almost did

• P has to show that neg act placed them in zone of physical danger
• P must have suffered subsequent physical manifestations
  e.g. heart attack

Question 34

VA NIED Requirements

Answer 34

Proof of physical jury required for P to recover

Question 35

VA Bystander Rules

Answer 35

Bystander must be in zone of danger himself.

So close they could have been victim too, so pretty much not a bystander at all.

P must prove symptoms or manifestations of physical injury by clear and convincing evidence.

Question 36

Bystander Actions (MBE)

Answer 36

Serious physical harm occurs to a close relative and P suffers emotional distress as a result of injury to the close relative.
o P was located near scene of incident;
o P suffered severe emotional distress; and
o P had close relationship with victim (immediate family member).

Question 37

NIED Relationships Cases Rule

Answer 37

P and D have pre-existing business relationship and nature of business makes it highly foreseeable that careless will lead to emotional distress.

(ex) Patient and medical professional - maybe
(ex) Funeral home and loved one- could be
(ex) dry cleaner - unlikely

Question 38

Wrongful Conception (MBE)

Answer 38

Birth of a healthy child after the P took steps to avoid conception, often a negligently performed sterilization procedure.

Question 39

VA wrongful birth, etc. actions

Answer 39

VA recognises:
- wrongful pregnancy
- wrongful birth

VA does not recognize:
-wrongful life action in the child

Question 40

Wrongful Birth (MBE)

Answer 40

Birth of a child with anomalies, disease, or disability when the physician failed to diagnose issues during the pregnancy.
● P must claim that she would have ended the pregnancy if the physician had not negligently failed to diagnose.

Question 41

Wrongful Life (MBE)

Answer 41

Child’s claim for having been born with anomalies, disease, or disability because the physician failed to diagnose issues during the pregnancy.

Question 42

Which wins - statute or common law of torts?

Answer 42

Statutes that provide civil liability SUPERSEDE common law of torts

ex: A state law says anyone injured in a car accident not wearing a seatbelt cannot recover in tort. Thus, if P was not wearing a seatbelt when injured in a car accident, P cannot recover in a negligence action

Question 43

Negligence per se D Rule

Answer 43

Where D’s conduct also violates a statute that does not provide for civil liability (criminal statute), that statute can establish the standard of conduct for breach of duty purposes (ex: crim traffic law).

Question 44

Negligence per se applies if:

Answer 44

▪ P is member of a class the law is designed to protect; and
▪ Injury caused by D’s conduct is the type the statute sought to protect.

EXAMPLE: Legislature in the state of Panic passes a law that says “anyone driving after sundown without headlights is guilty of an infraction punishable by up to a $1,000 fine.” This is a criminal law. Dana is driving after dusk without headlights and cannot see Tracy crossing the street, Dana runs over Tracy, injuring him. Tracy sues Dana in negligence and would prefer that the judge use the statute to set the standard of care because it limits the jury’s role.

Question 45

Negligence Per Se Exceptions

Answer 45

Following statute would be more dangerous than violating it
e.g. swerving to avoid a kid

Compliance of the statute is completely impossible under the circumstances
e.g. driver has a heart attack

Question 46

Negligence per se majority rule if statute applies

Answer 46

Unexcused violation of the law establishes that D breached a duty to P, but P still needs to prove causation and damages.

Question 47

Exceptions to negligence per se majority rule:

Answer 47

(1) Excused statutory violation, like an emergency not of D’s own making, or when it’s more dangerous to comply with the law.

(2) Licensing statutes – Not having a license does not create liability.
● Expired driver’s license is not negligence per se.

Question 48

If negligence per se statute doesn’t apply (majority rule)

Answer 48

The statute will not set standard of care, case proceeds under RPP, not under negligence per se.

EXAMPLE: State of Joy passes a statute that requires all railroads to construct secure fences between their property and neighboring property, failure to do so results in a fine up to $1,000. Dunn Railroad constructs a flimsy fence between their land and Pierre’s. Railroad workers mow the lawn next to the fence. On the other side of the fence is Pierre’s cow. Cow knocks the fence over and eats herself to death on the freshly cut grass. The statute is not designed to protect cows from overeating; therefore, it will not apply.

Question 49

Virginia Negligence per se - for statutory prohibition to create civil liability in VA - 3 elements

Answer 49

(1) statute must be one enacted for public safety;
(2) injured party must belong to class of persons for whose benefit class was enacted;
(3) harm suffered must be of the type against which the statute was designed to protect

Question 50

VA - if legislature has explicitly said safety statute doesn’t provide evidence of negligence per se, P may still….

Answer 50

provide common law negligence w/o reference to statute

Question 51

VA negligence per se - sudden emergency defense

Answer 51

sudden and unexpected occurrence or condition not caused by D demanded prompt action without time for deliberation