Torts

Question 1

A plaintiff claiming intentional infliction of emotional distress must meet which burden of proof?

Answer 1

In Virginia, a plaintiff must prove intentional infliction of emotional distress by clear and convincing evidence.

Question 2

Scope of false imprisonment

Answer 2

Virginia courts define false imprisonment as an illegal restraint on another’s freedom. It does not require the defendant to actually put the plaintiff in prison.

Once a plaintiff demonstrates a prima facie case of false imprisonment, it is up to the defendant to show that the restraint was legal or justified.

Question 3

Definition of conversion

Answer 3

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.

Question 4

Who may properly bring a conversion claim?

Answer 4

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.

The defendant need not apply the property to his own use, and the plaintiff may recover, irrespective of the defendant’s good or bad faith, care or negligence, knowledge or ignorance with respect to the property.

Question 5

Under what circumstances may a conversion claim be raised?

Answer 5

While an action for conversion, which applies to tangible personal property, may extend to intangible personal property rights that arise from or are merged with a document (e.g., stock certificate, promissory note, bond), conversion does not apply to claims for interference with undocumented intangible property rights.

Damages generally are based on the value of the property converted at the time and place of conversion. As with most other civil causes of action, the plaintiff establishes conversion by a preponderance of the evidence.

Question 6

Scope of Good Samaritan law

Answer 6

Virginia’s Good Samaritan law protects:

1. people rendering emergency care, in good faith, without compensation;
2. those rendering emergency obstetrical care from all but gross negligence, when the pregnant woman’s medical records are not readily available; and
3. those who render emergency assistance to injured animals at the scene of the emergency.

Additionally, emergency personnel are protected from liability while operating an emergency vehicle en route to an emergency so long as they comply with warning lights and siren laws. There is no protection, however, if injury results from gross negligence or willful or wanton misconduct.

Question 7

Exception to affirmative duty to act by authority

Answer 7

Virginia does not recognize a cause of action based on a duty by an employer to supervise an employee.

Question 8

Standard of care: children

Answer 8

There is an irrebuttable presumption that a child under the age of seven is incapable of being negligent. There is a rebuttable presumption that a child between the ages of seven and fourteen is legally incapable of negligence because he lacks the capacity to understand the dangers of his acts.

Question 9

Standard of care: common carriers & innkeepers

Answer 9

Virginia recognizes that common carriers and innkeepers have a duty to exercise the utmost care to protect their customers and guests from personal injury.

Because an innkeeper has a special relationship with its guests, the innkeeper has a duty to warn and protect the guests from reasonably foreseeable injury from the criminal conduct of a third party. This same standard also applies to a common carrier and its customers.

Question 10

Standard of care: possessors of land

Answer 10

Virginia continues to follow the traditional rules that provide that the standard of care owed to land entrants depends upon the status of the land entrant as an invitee, a licensee, or a trespasser.

Question 11

Attractive nuisance

Answer 11

The attractive nuisance doctrine has been repudiated in Virginia, but a landowner may be held liable for leaving an instrument with a hidden danger on an area of his property that is easily accessible to children and known to be frequented by children.

Question 12

Scope of land possessor’s liability to invitees

Answer 12

In Virginia, a possessor of land will be liable to an invitee for injuries caused by the land if he should have realized the invitee would not realize or appreciate the danger. A land possessor has no duty to protect an invitee from open and obvious dangers. The possessor’s duty to the invitee extends only through the scope of the invitation.

A host fulfills her legal duty to exercise reasonable care for the safety of a child social guest if the host ensures that the child is supervised by the parent and the parent gave permission for the activity leading to the injury.

Question 13

Scope of land possessor’s liability to licensees

Answer 13

A land possessor has a duty to carry on his activities with reasonable care for the safety of licensees, and will be liable to licensees for harm caused by a failure to use reasonable care, unless the licensee should be aware of the risk.

Question 14

Land possessor’s liability for injury caused by third party’s criminal conduct

Answer 14

In Virginia, an owner or occupier of land is generally not under a common law duty to warn or to protect an invitee on his property from the criminal act of a third party, unless there is special relationship between the landowner or occupier and the injured party or the third party.

Knowledge of prior criminal activity on the defendant’s premises or in its vicinity by unknown persons is not sufficient to give rise to a duty. However, knowledge that there is an imminent danger of criminal assault does.

Question 15

Standard of care: physicians

Answer 15

Healthcare providers are held to the standard of other licensed healthcare providers in Virginia. A locality standard can be applied if it is shown to be more appropriate. This standard applies to specialists as well.

Question 16

Elements of negligence per se

Answer 16

To establish negligence per se, the plaintiff must prove that:

1. the defendant violated a statute that was enacted for public safety,
2. the plaintiff belongs to the class of persons for whose benefit the statute was enacted, and
3. the statutory violation was a proximate cause of her injury.

A violation of statutory provisions that prohibit the sale of alcoholic beverages to individuals under age 21 and to intoxicated individuals does not trigger negligence per se because the violation is not the proximate cause of an injury inflicted by the underage or intoxicated individual.

Question 17

Approach to substantial factor test

Answer 17

When but-for causation does not work, most courts substitute a substantial-factor test. Virginia follows the minority approach of the Third Restatement.

Under this rule, when the conduct of a defendant together with some other cause (e.g., another defendant or an independently occurring event) may have contributed to a plaintiff’s indivisible injury, each such cause or act is regarded as a factual cause of the harm. Together they are designated as “multiple sufficient causes.”

Question 18

Scope of loss of chance of recovery

Answer 18

In Virginia, loss of chance of recovery arises in wrongful death suits. If a physician destroyed any substantial chance the patient could survive, his conduct is a proximate cause of the patient’s death. Evidence that the physician’s actions destroyed the patient’s chance to survive is evidence a jury should consider when considering proximate cause.

Question 19

Proximate cause

Answer 19

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.

Question 20

Superseding causes

Answer 20

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.

Question 21

Categories of damages recoverable in personal injury action

Answer 21

The typical categories of damages recoverable in a personal injury action include:

1. Medical and rehabilitative expenses, both past and future;
2. Past and future pain and suffering (e.g., emotional distress); and
3. Lost income and any reduction in future earnings capacity.

Question 22

Personal injury damages in medical malpractice

Answer 22

Under Virginia law, in medical malpractice actions, for acts of negligence occurring from July 1, 2016 through June 30, 2017, the total damages limit is $2.25 million. This amount increases by $50,000 annually until it equals $3 million in 2031.

Question 23

Scope of collateral source rule

Answer 23

Virginia follows the traditional collateral-source rule.

Under this rule, benefits or payments provided to the plaintiff from outside sources (such as the plaintiff’s medical insurance) are not credited against the liability of any tortfeasor, nor is evidence of such payments admissible at trial. Even under the traditional rule, payments made to the plaintiff by the defendant’s insurer are not considered payments from a collateral source, and such payments are credited against the defendant’s liability.

Question 24

Scope of punitive damages

Answer 24

In Virginia, punitive damages are available if the defendant acted with actual malice or under circumstances amounting to a willful and wanton disregard of a plaintiff’s rights. Virginia limits punitive damages to $350,000.

When an employer is vicariously liable for the conduct of an employee, the employer may be liable for punitive damages if the employer participated in, or authorized, or ratified the employee’s conduct.

Question 25

Proof of emotional distress required to establish negligent infliction of emotional distress

Answer 25

Virginia law follows the majority and requires physical injury for recovery in an action for negligent infliction of emotional distress. Plaintiffs cannot recover merely for witnessing an injury to a third party, but must instead experience shock or fright that manifests as a physical injury and is proximately caused by the defendant’s negligence.

Question 26

Survival actions

Answer 26

In Virginia, all actions survive the death of the plaintiff and the defendant. If the plaintiff asserted the cause of action before death and died as a result of the injury complained of, the action can be amended. If the defendant died, no punitive damages may be recovered.

Question 27

Cause of action: loss of consortium

Answer 27

A spouse has no right of action for loss of consortium for injuries sustained by the other spouse.

Question 28

Cause of action: wrongful fetal death

Answer 28

Whenever a fetal death is caused by the wrongful act, neglect, or default of any person or corporation, the natural mother of the fetus may bring an action against such tortfeasor.

Question 29

Non-delegable duties: independent contractors

Answer 29

In Virginia, a duty owed by a landlord to a tenant or a possessor of land to an invitee is non-delegable if the independent contractor is rendering regular and routine maintenance, repair, and janitorial services, but not if the independent contract is performing a discrete and isolated repair and improvement.

Question 30

Non-delegable duties: automobile owners & family purpose doctrine

Answer 30

Virginia has rejected the family-purpose doctrine, which provides that the owner of an automobile may be liable for the tortious acts of any family member driving the car with permission.

Question 31

Non-delegable duties: automobile owners & scope of permissive use

Answer 31

Virginia does not statutorily recognize the liability of a car owner for the negligence of someone else driving the car with the owner’s permission unless the car owner herself was negligent (e.g., negligent entrustment). However, Virginia does require an automobile insurance policy to contain an omnibus clause that generally requires an insurer to provide coverage for anyone using the automobile with the permission of the owner.