tort Flashcards
1
Q
Intent for battery exists when the defendant
A
(1) intends to cause contact with the plaintiff’s person,
(2) intends to cause contact with a third party but instead causes contact with the plaintiff, or
(3) intends to commit an assault but instead commits a battery.
1
Q
Apparent consent is a defense to battery when
A
consent can be reasonably implied from the plaintiff’s conduct or from custom.
2
Q
consent is only a defense where
A
the defendant’s conduct falls within the scope of the plaintiff’s consent.
3
Q
A defendant who has permission to use the plaintiff’s chattel commits conversion when he/she
A
(1) intentionally uses the chattel in a way that exceeds the scope of permission and
(2) seriously violates the plaintiff’s right to control the chattel.
4
Q
The defendant is liable for the fair market value of the chattel at the time of
A
the conversion.
5
Q
For intentional infliction of emotional distress, conduct is considered extreme and outrageous if
A
it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.
6
Q
In most jurisdictions, an innkeeper owes a duty to
A
use ordinary care to protect its guests while they are on the premises.
7
Q
Evidence that the innkeeper complied with (or deviated from) community or industry custom is
A
relevant to—but not conclusive on—the issue of negligence.
8
Q
Under the common-law approach to common-carrier liability, common carriers owe
A
the highest duty of care to their passengers and can be liable for slight negligence.
9
Q
Under the modern approach, common carriers only owe a duty to use
A
reasonable care to protect passengers from harm that arises within the scope of that relationship.
10
Q
In traditional contributory negligence jurisdictions, a plaintiff’s failure to use reasonable care for his/her own safety is
A
a complete defense to negligence.
11
Q
The defendant can establish the plaintiff’s negligence under the doctrine of negligence per se, but still must prove that
A
the plaintiff’s negligence proximately caused the plaintiff’s harm.
12
Q
A land possessor owes a duty to known or anticipated trespassers to
A
(1) warn them about hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by trespassers and
(2) use reasonable care in active operations.
13
Q
Under the traditional standard for res ipsa loquitur, negligence is inferred if
A
(1) the plaintiff’s harm would not normally occur unless someone was negligent,
2) the defendant had exclusive control over the thing that caused the harm, and
(3) the plaintiff did nothing to cause the harm.
14
Q
Where multiple forces combined to cause the plaintiff’s harm and any one alone would have been sufficient to cause the harm, the test for actual causation is
A
whether the defendant’s conduct was a substantial factor in causing the harm.
15
Q
Strict products liability claims can be brought against
A
commercial suppliers or sellers—i.e., those in the business of manufacturing, selling, or otherwise distributing products of the type that harmed the plaintiff.
16
Q
service providers are not subject to
A
strict products liability.
17
Q
Strict products liability is imposed on any commercial seller in the chain of distribution if
A
(1) the commercial seller’s product contained a defect when it left the commercial seller’s control and
(2) that defect caused the plaintiff harm.
18
Q
The owner of a wild animal is strictly liable for harm that is caused by
A
a plaintiff’s fearful reaction to the sight of an unrestrained wild animal or directly results from the wild animal’s abnormally dangerous characteristics.
19
Q
Under pure comparative negligence, a negligent plaintiff’s recovery is reduced by
A
his/her proportionate share of fault.
20
Q
Under pure comparative negligence, if multiple defendants cause the plaintiff indivisible harm:
A
several liability limits the plaintiff to recovering from each defendant the portion of damages that corresponds to his/her proportionate share of fault.
21
Q
Under modified (or partial) comparative negligence, recovery is reduced by
A
the plaintiff’s percentage of fault and barred if it exceeds 50%.
22
Q
A plaintiff who is public figure or official can recover for defamation only if
A
the plaintiff proves that the defendant made a false statement about the plaintiff with actual malice—i.e., with knowledge or reckless disregard of the statement’s falsity.
23
Q
A commercial seller owes a duty of reasonable care to
A
any foreseeable plaintiff (i.e., purchaser, user, bystander).
24
a commercial seller's duty of reasonable care to any foreseeable plaintiff is breached when:
the commercial seller fails to exercise reasonable care in the inspection or sale of the product and the defect would have been discovered had such care been used.
25
Assumption of the risk is a defense that applies when
the plaintiff knew of a risk yet voluntarily exposed him/herself to it.
26
A plaintiff must be in privity with the defendant to have standing in
a products liability action based on breach of warranty
27
Exclusive control is an element of res ipsa loquitur, which allows
the defendant's negligent conduct to be inferred when the plaintiff lacks direct evidence of such negligence.
28
manufacturer can rebut an inference of negligence by showing that
it exercised reasonable care
29
A defendant is liable for conversion if
he intentionally commits an act depriving the plaintiff of possession of his chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff of the use of the chattel.
30
Accidentally damaging the plaintiff's chattel is not conversion if
the defendant had permission to be using the property
31
The defendant must only intend to commit the act that interferes; intent to cause damage is
not necessary
32
A defendant is subject to liability to the plaintiff for the intentional infliction of emotional distress if
the defendant by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to the plaintiff.
33
Under a negligence theory, failure to exercise reasonable care in the inspection or sale of a product constitutes
breach of duty.
34
plaintiff must establish not only that the defect exists, but that had the defendant exercised reasonable care in the inspection or sale of the product
the defect would have been discovered, and the plaintiff would not have been harmed.
35
A foreseeable intervening cause, such as the negligence of a rescuer,
will not cut off a defendant’s liability
36
As a general guideline, negligent intervening acts are usually regarded as
foreseeable and do not prevent the original defendant from being held liable to the plaintiff.
37
Negligence per se occurs when
a defendant violates a criminal or regulatory statute that imposes a specific duty on the defendant, and the act proximately caused the kind of harm the statute was designed to prevent.
38
Negligence per se plaintiff must be
in the class of people intended to be protected by the statute.
39
A failure-to-warn defect exists if
there were foreseeable risks of harm not obvious to an ordinary user of the product, and those risks could have been reduced or avoided by providing reasonable instructions or warnings.
40
The failure to include the instructions or warnings must render the product
not reasonably safe
41
Under the attractive nuisance doctrine, a land possessor may be liable for injuries to children trespassing on the land if:
: i) an artificial condition exists in a place the land possessor knows or has reason to know children are likely to trespass;
ii) the owner knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children;
iii) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition;
iv) the utility to the landowner of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children; and
v) the landowner fails to exercise reasonable care to protect children from the harm.
42
To prevail on a claim for strict products liability based on a manufacturing defect, the plaintiff must prove that:
(i) the product was defective,
(ii) the defect existed at the time the product left the defendant’s control, and
(iii) the defect caused the plaintiff’s injury when the product was used in an intended or reasonably foreseeable way.
43
While misuse of a product is not an automatic bar to recovery, the particular misuse must be
foreseeable.
44
In most jurisdictions, a minor child can be held liable for an intentional tort if the child acts with the requisite mental state—i.e.,
(i) with the purpose of causing the consequences of the child's act or
(ii) knowing that the consequence is substantially certain to result.
45
A defendant is subject to liability to the plaintiff for battery if
the defendant intended to cause contact with the plaintiff's person and the defendant's affirmative conduct caused contact that was harmful or offensive to the plaintiff.
46
The commercial supplier of a component, such as sand used in manufacturing cement, is subject to liability if
the component itself is defective, but not when the component is incorporated into a product that is defective for another reason.
47
the commercial supplier of a component may be liable if that supplier substantially participates in
the process of integrating the component into the design of the assembled product and that product is defective due to the integration.
48
A private nuisance is
a thing or activity that substantially and unreasonably interferes with another individual’s use and enjoyment of his land.
49
for private nuisance claim, a person with special sensitivities can recover only if
the average person would be offended, inconvenienced, or annoyed.
50
In order to recover under a strict products liability theory, a plaintiff must prove that
the product was defective (in manufacture, design, or failure to warn), the defect existed when it left the defendant’s control, and the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way.
51
The misuse, alteration, or modification of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer
typically negates liability.
52
To recover under a theory of the public disclosure of private facts about someone, the plaintiff must show that
(i) the defendant gave publicity to a matter concerning the private life of another, and
(ii) the matter publicized is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public.
53
A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the plaintiff in harm’s way if the plaintiff demonstrates that:
(i) he was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence; and
(ii) the threat of physical impact caused emotional distress.
54
duty to avoid infliction of emotional distress exists without any threat of physical impact in cases in which there is
a special relationship between the plaintiff and the defendant.
55
possible for a defendant to inflict severe emotional distress that results in physical symptoms without the threat of physical impact, such as when
a physician negligently misdiagnoses a patient with a terminal illness that the patient does not have, and the patient goes into shock as a result
56
Generally, a plaintiff can recover for negligent infliction of emotional distress only if
the defendant’s action causes a threat of physical impact that results in some kind of bodily harm (e.g., a heart attack).
57
exception to the physical-injury requirement in cases of
misinforming someone that a family member has died
58
In most jurisdictions, a private actor (i.e., an individual who is not an on-duty law enforcement officer) is privileged to use force (e.g., commit a battery or false imprisonment) to make an arrest in the case of a felony if
the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it.
59
"citizen's arrest," is recognized if
the private actor makes a reasonable mistake as to the identity of the felon but not as to the commission of the felony.
60
A wild animal is an animal that is
not by custom devoted to the service of humankind in the place where it is being kept
61
The possessor of a wild animal is
strictly liable for harm done by that animal, in spite of any precautions the possessor has taken to confine the animal or prevent the harm, as long as the plaintiff did not knowingly do anything to bring about the injury and the harm arises from a dangerous propensity that is characteristic of such wild animals or of which the owner has reason to know.
62
A defendant is liable for
the reasonably foreseeable consequences resulting from his conduct
63
The type of harm must be foreseeable, and a defendant’s liability is limited to
those harms that result from the risks that made the defendant’s conduct tortious.
64
Traditionally, a plaintiff’s voluntarily encountering a known, specific risk is an
affirmative defense to negligence that affects recovery
65
Most courts hold that the voluntary encountering must also be
unreasonable
66
Examples of unforeseeable superseding causes include
extraordinary acts of nature (“act of God”), criminal acts, and intentional torts of third parties.
67
normal forces of nature, including rain, are considered
foreseeable intervening causes, and will not limit the defendant’s liability
68
A defendant may use deadly force for the purpose of defending himself against the plaintiff only if the defendant reasonably believes that
i) the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant,
(ii) the defendant is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint, and
(iii) the defendant can safely prevent the peril only by the immediate use of deadly force.
69
In general, a duty of care is owed to
all foreseeable persons who may foreseeably be injured by the defendant's failure to act as a reasonable person of ordinary prudence under the circumstances.
70
Unlike actions for intentional torts, nominal damages are not recoverable in
negligence actions
71
a plaintiff who suffers only economic loss without any related personal injury or property damage
cannot recover such loss through a negligence action because a defendant does not have a general duty to avoid the unintentional infliction of economic loss on a plaintiff.
72
A person is an employer if
the person has the right to control the means and methods by which another performs a task or achieves a result.
73
An employer is liable for the tortious conduct of an employee that is
within the scope of employment
74
If the plaintiff in a defamation action is either a public official or a public figure, then the plaintiff is required to prove that the defendant acted with actual malice; that is,
he either had knowledge that the statement was false or acted with reckless disregard as to the truth or falsity of the statement
75
a defamatory opinion is actionable if
the defendant implies that there is a factual basis for that opinion.
76
A plaintiff can make out a prima facie case of an intentional tort by showing proof of
the tortious conduct, the requisite mental state (i.e., the defendant acts intentionally), and causation.
77
Transferred intent exists when
a defendant intends to commit an battery, assault, or false imprisonment against one person, but instead commits the intended tort or a different tort against a different person
78
A plaintiff may even recover nominal damages in a battery action, even though
the plaintiff did not suffer actual harm.
79
Trespass to land occurs when
the defendant's intentional act causes a physical invasion of the land of another.
80
defendant need only have the intent to enter the land, not the intent to
commit a wrongful trespass.
81
for trespass to land
No proof of actual damages is required; nominal damages may be awarded
82
privilege of necessity is available to a person who
enters or remains on the land of another (or interferes with another's personal property) to prevent serious harm, which typically is substantially more serious than the invasion or interference itself.
83
Private necessity is a qualified privilege to protect an interest of the defendant or a limited number of other persons from
serious harm when the interference is reasonably necessary to prevent such harm.
84
Despite this privilege, the property owner is entitled to recover actual damages, but cannot recover
nominal or punitive damages nor use force to eject the defendant.
85
An activity is abnormally dangerous if that activity
(i) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised, and (ii) the activity is not commonly engaged in.
86
Strict liability for an abnormally dangerous activity is available if
the harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place
87
Proximate cause exists when
the defendant’s actions are a direct cause of the plaintiff’s injuries.
88
if an intervening force occurs between the defendant’s act and the plaintiff’s injury, the defendant still may be liable if
the intervening force was foreseeable.
89
Medical malpractice is a foreseeable
intervening force
90
A mentally impaired individual may be liable for an intentional tort if the individual acts
(i) with the purpose of causing the consequences of the act or (ii) knowing that the consequence is substantially certain to result. This is true regardless of whether the individual comprehends the wrongfulness of the act.
91
Under the "single-intent" rule, which is the majority rule, a defendant may be liable if the defendant intends merely
to cause contact with the plaintiff’s person.
92
a retailer may be strictly liable for a defective product, even one that is
defective due to a manufacturing defect.
93
the seller is subject to strict liability for a defective product, even if
the revenue from sales of the product is not a significant portion of the seller’s business.
94
A person who comes to the aid of another is
a foreseeable plaintiff
95
If the defendant negligently puts either the rescued party or the rescuer in danger, then
he is liable for the rescuer’s injuries
96
. Otherwise, at common law, the owner of a domestic animal is generally liable only for
negligence.
97
Actual consent given by a plaintiff due to a substantial mistake regarding the nature of the invasion of the plaintiff's interests, the extent of the expected harm, or the defendant's purpose in engaging in the conduct is nevertheless valid consent unless
the defendant caused the mistake by affirmative misrepresentation or fraud or knew of the mistake.
98
Consent to an egregious intentional tort can be valid if
other party does not exceed the scope of the consent.
99
As a general rule, an employer is vicariously liable for the employee’s torts if
the employer has the right to control the activities of the employee.
100
An employer is liable for the tortious conduct of an employee that is
within the scope of employment.
101
Conduct within the scope of employment includes
1) acts that the employee is employed to perform or
2) acts that are intended to profit or benefit the employer.
102
An employee that completes a personal errand may still be within the scope of employment if
the detour is a minor and permissible deviation.
103
an employee that completes a personal errand that involves a significant deviation from the path that would otherwise be taken for the purposes of employment has begun a
frolic and is not acting within the scope of employment.
104
An employer is not vicariously liable for
an employee’s frolic.
105
Conversion is the wrongful assumption or exercise of
the right of ownership over goods or other tangible personal property belonging to another in denial of or inconsistent with the owner’s rights.
106
An action for conversion can be maintained only by
the person having a property interest in and entitled to the immediate possession of the item alleged to have been wrongfully converted.
107
Damages for conversion are based on
the value of the property converted at the time and place of conversion.
108
An action for conversion, which typically applies to tangible personal property, may extend to
intangible personal property rights that arise from or are merged with a document such as a stock certificate, promissory note, bond.
109
As with most other civil causes of action, the plaintiff established conversion by
a preponderance of the evidence.
110
Generally, the plaintiff must demand that the defendant return the property when
the defendant’s initial acquisition of the property was not wrongful.
111
doctrine of respondent superior holds that
an employee can be liable for the tortious conduct of its employee if: the employee was acting within the scope of his/her employment when the damage/injury occurred
112
Based on the type of conduct by the employee, it can either be classified as
a frolic or a detour
113
A frolic which serves to
generally sever liability of the employer, as the conduct was not within the scope of the employment; compared to a detour which is still within the scope
114
To establish a negligence claim, the claimant must prove that
the defendant owed the claimant a duty, that the defendant breached that duty, and that the claimant suffered actual harm that was both the actual and proximate cause of the claim.
115
A land possessor owes an invitee the duty of
reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them.
116
An invitee includes
a business visitor, who is someone invited to enter or remain on the land for a purpose connected to business dealings with the land possessor.
117
The land possessor’s duty to invitees is
non-delegable.
118
Even when the land possessor engages an independent contractor to clean the premises of the business, the land possessor remains
vicariously liable for the independent contractor's failure to maintain the premises in a reasonably safe condition.
119
doctrine of res ipsa loquitur
infers the existence of the defendant’s negligent conduct in the absence of direct evidence of such negligence
120
Virginia continues to require the instrumentality causing the damage to be
in the exclusive possession of or under the exclusive management of the defendant for res ipsa loquitur doctrine to apply.
121
A defendant is not required to foresee the extent of
a claimant's damages to be liable for them (e.g., the "eggshell-plaintiff" rule)
122
a defendant is not liable for a plaintiff's
preexisting physical condition, such as degenerative disc disease
123
Although a claimant establishes the defendant's negligence, the defendant can escape liability completely in Virginia if
the claimant was contributorily negligent.
124
In general, a duty of care is owed to
all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.
125
a landowner generally does not owe a duty to a person
not on the premises, such as a passerby, who is harmed by a natural condition on the landowner’s premises.
126
landowner liability for those not on premises exception:
trees in urban areas
127
With respect to an artificial condition, the landowner generally owes a duty to
prevent an unreasonable risk of harm to persons who are not on the premises.
128
with respect to an activity conducted on the premises by the owner or by someone subject to the owner’s control, the landowner generally owes a duty of
reasonable care to persons who are not on the premises.
129
n addition to proving actual causation, the plaintiff must prove that the defendant’s tortious conduct was a
proximate cause of her harm.
130
Proximate cause is a legal limitation on
actual cause, focusing on foreseeability.
131
In Virginia, an action will be the proximate cause of an injury if
the injury is the natural and probable consequence of the act, and was foreseeable.
132
Most courts hold that an unforeseeable intervening cause is a superseding cause that
breaks the chain of causation between the defendant and the plaintiff.
133
In Virginia, to be superseding, an intervening cause must completely
supersede the defendant’s actions so that the intervening cause alone produced the injury, without the defendant’s contributing negligence.
134
In general, there is no affirmative duty
to act.
135
a person who voluntarily aids or rescues another has a duty to act with
reasonable ordinary care in the performance of that aid or rescue.
135
Virginia’s Good Samaritan law protects
people rendering emergency care, in good faith, without compensation, even if they are negligent in rendering that care.
136
Contributory fault occurs when
a plaintiff fails to exercise reasonable care for her own safety and thereby contributes to her own injury.
137
Under the traditional rule, the plaintiff’s contributory negligence is a
complete bar to recovery, regardless of the percentage that the plaintiff’s own negligence contributed to the harm.
138
Although Virginia follows the doctrine of traditional contributory negligence, the plaintiff’s negligence must be
a substantial cause of the injury.
139
An invitee is a person who
enters onto the premises in response to an express or implied invitation of the landowner
140
In a negligence action, under premises liability, a business owner owes a general duty to use
reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee.
141
a business owners duty to an invitee includes
1) the duty to warn or to make safe nonobvious, dangerous conditions known to the owner and to use ordinary care in active operation on the property,
2) as well as a duty to make reasonable inspections to discover dangerous conditions and then make them safe.
142
Under this duty to make safe dangerous conditions
a reasonable warning given to a patron about dangerous conditions typically is sufficient.
143
the duty to warn usually does not exist when
the dangerous condition is so obvious that the invitee should reasonably have been aware of it; the obviousness is determined by all of the surrounding circumstances.
144
In a negligence action, where a plaintiff can prove the applicability of criminal statute to the facts of their case, the specific duty imposed by the statute will
replace the more general duty imposed under common law
145
In order to prove the applicability of the statute the Plaintiff must show that
(1) they are in the class of persons that the statute is intended to protect, and
(2) that the statute was designed to prevent the type of harm the plaintiff suffered.
146
most courts adhere to the rule that violation of the statute is negligence per se, which
establishes a conclusive presumption of duty and breach of that duty.
147
under negligence per se when established, the plaintiff must still prove
causation and damages
148
The plaintiff's burden of persuasion in a conversion action is
a preponderance of the evidence.
149
plaintiff's burden of persuasion in a fraud action is
clear and convincing evidence.
150
plaintiff's burden of persuasion in an intentional infliction of emotional distress action is
clear and convincing evidence
151
plaintiff's burden of persuasion to establish punitive damages is
clear and convincing evidence
152
statute of limitations for a slander action is
one year
153
In Virginia, an employer can be liable for
negligent hiring or retaining an employee that results in harm to the plaintiff.
154
for negligent hiring or retaining an employee The plaintiff must establish the four basic elements
duty, breach of duty, causation of the plaintiff's harm, and actual damages.
155
Generally, the employee's conduct that directly causes the plaintiff's harm must have occurred within
the employee's scope of employment.
156
employer's conduct must be the
proximate cause of the plaintiff's harm.
157
an employer can also be liable under the doctrine of respondeat superior for
a tort committed by an employee within the scope of employment.
158
As a rule, a person is an employer if
the person has the right to control the means and methods by which another performs a task or achieves a result.
159
Conduct within the scope of employment includes
acts that the employee is employed to perform or that are intended to benefit the employer.
160
Usually, an employer is not liable for
an intentional tort committed by an employee.
161
when force is inherent in the employee’s work, the employer may be responsible for
injuries the employee inflicts in the course of his work.
162
In Virginia, a business visitor is
someone invited to enter or remain on real property for a purpose connected to business dealings with the possessor of the property—is an invitee.
163
duty owed to an invitee by a possessor
duty of reasonable care
164
a possessor has no duty to protect an invitee from
open and obvious dangers.
165
a possessor of real property is generally not liable for a tort committed by
an independent contractor performing an isolated repair or improvement.
166
an independent contractor is
one engaged to accomplish a task or achieve a result but who is not subject to another’s right to control the method and means by which the task is performed, or the result reached
167
Apart from abnormally hazardous activities, Virginia generally does not recognize a cause of action based on
strict liability for property owners
168
Virginia has not adopted any dram shop law that imposes
vicarious liability on the seller of intoxicating beverages when a third party is subsequently injured due to the buyer’s intoxication.
169
In most jurisdictions, including Virginia, the violation of a statute establishes
negligence as a matter of law, or negligence per se.
170
To establish negligence per se, a plaintiff must prove that
(i) the defendant violated a statute that was enacted for public safety,
(ii) he belongs to the class of persons for whose benefit the statute was enacted, and
(iii) the statutory violation was a proximate cause of his injury.
171
In Virginia, a violation of statutory provisions that prohibit the sale of alcoholic beverages to intoxicated individuals does not trigger negligence per se because
the violation is not the proximate cause of an injury inflicted by the intoxicated individual.
172
The standard of care imposed on a child is that of
a reasonable child of similar age, intelligence, and experience.
173
Children engaged in adult activities are held to
the same standard as an adult
174
In Virginia, there is an irrebuttable presumption that a child under the age of seven is
incapable of negligence.
175
While Virginia continues to adhere to the doctrine of contributory negligence, which generally bars recovery by a plaintiff who is contributorily negligent, Virginia, as a contributory negligence jurisdiction, does recognize
the last clear chance doctrine
176
the last clear chance doctrine
the plaintiff may mitigate the legal consequences of her own contributory negligence if she proves that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.
177
Virginia has not adopted
a modified comparative negligence scheme
178
Virginia has not adopted
a pure comparative negligence scheme.
179
Generally, every action for personal injuries must be brought within
two years after the cause of action accrues.
180
For a personal injury action, the cause of action accrues, and the statute of limitations begins to run, when the injury is received, regardless of
when it is discovered
181
Virginia courts recognize an exception for medical malpractice claims known as
the continuous treatment rule
182
the continuous treatment rule
when medical malpractice occurs during a continuous, ongoing treatment during which a specific illness or condition should have been diagnosed and was not, the cause of action accrues when the improper course of examination terminates.
183
If an unemancipated minor has a medical malpractice claim against a health care provider, the claim generally must be brought within two years of
the last act or omission giving rise to the cause of action; However, if the minor was less than eight years of age at the time of the act of malpractice, the minor has until his tenth birthday to bring the action.
184
the continuing treatment rule likely does apply to prevent the start of the running of the statute of limitation until
Defendant stopped treating Plaintiff
185
Under Virginia law, total damages in medical malpractice actions occurring from July 1, 2016 to June 30, 2017 may not exceed
$2.25 million
186
For acts of negligence occurring on or after July 1, 2017, the total damages limit
will increase by $50,000 each year until it equals $3 million in 2031
187
