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Bar Prep > Torts > Flashcards

Torts Flashcards

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1
Q

What are the elements of FRAUD?

A
  1. KNOWINGLY MADE FALSE REPRESENTATION (or CONCEALMENT of mat’l fact)
  2. of a MATERIAL FACT
  3. w/ the INTENT TO MISLEAD
  4. that’s RELIED UPON to P’s DETRIMENT
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2
Q

What is a defense to FRAUD?

A

IMPUTED KNOWLEDGE

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3
Q

Are liability waivers enforceable in VA?

A

No, they’re unenforceable b/c they’re against public policy.

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4
Q

Does VA follow rule of joint and several liability w/ right of contribution?

A

Yes

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5
Q

What is the right of contribution vis a vis joint and several liability?

A

Means 1 defendant that’s liable for full amount of J&S j’ment can recover from the other defendants. Joint wrongdoers are liable for their share of the j’ment.

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6
Q

What are the elements of NEGLIGENCE?

A
  1. DUTY
  2. BREACH
  3. CAUSATION (ACTUAL AND PROXIMATE)
  4. DAMAGES
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7
Q

What is RES IPSA LOQUITOR?

A

Theory of negligence that allows a P to establish a prima facie case w/ only circumstantial E. Requires P to show:

  1. Accident is a type that wouldn’t normally occur unless someone was negligent
  2. Instrumentality that caused the harm was in the SOLE CONTROL of D.
  3. P didn’t contribute to the harm.
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8
Q

What is a LICENSEE?

A

One who enters land W/ POSSESSOR’S PERMISSION for her OWN PURPOSE OR BUSINESS (rather than for possessor’s benefit)

Social guests are considered licensees

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9
Q

What duty is owed to LICENSEE?

A

Possessor has duty to:

  1. WARN of or MAKE SAFE DANGEROUS CONDITIONS known to the O that create UNREASONABLE RISK OF HARM and Licensee is unlikely to discover.
  2. exercise RSN CARE in the conduct of “active operations” on the property.
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10
Q

What is an INVITEE?

A

Those who enter premises for a purpose connected w/ THE BUSINESS OF THE O or enter as members of the public for a purpose for which the land is HELD OPEN TO THE PUBLIC.

like PUBLIC BUSINESSES

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11
Q

What is duty of care owed to INVITEES?

A

Duty to keep premises in REASONABLY SAFE CONDITION.

Must WARN OF CONCEALED DANGERS and

ACTIVELY INSPECT premises to ensure dangers are discovered and rectified.

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12
Q

INVITEES: Does O have duty to warn of OPEN AND OBVIOUS DANGERS?

A

No

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13
Q

What is doctrine of RESPONDEAT SUPERIOR?

A

Employer liable for torts of employee committed W/I SCOPE OF EMPLOYMENT.

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14
Q

RESPONDEAT SUPERIOR: What is a DETOUR?

A

An employee’s MINOR DEVIATION from scope of employment.

Detours still considered within scope of e’ment.

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15
Q

RESPONDEAT SUPERIOR: Does employer have indemnification claim against employee?

A

Yes. Where employer found liable for EE’s torts, ER has indemnification claim against EE.

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16
Q

What is W/I SCOPE OF E’MENT for respondeat superior?

A

Act is within scope of e’ment if:

  1. It was expressly or impliedly DIRECTED BY EMPLOYER or is NATURALLY INCIDENT to the business, and
  2. it was performed, w/ INTENT TO FURTHER EMPLOYER’S INTEREST
17
Q

What is a negligent entrustment claim? What is the test for such a claim?

A

A vehicle O may be liable for her OWN N in entrusting a car to a driver.

Test: Whether O KNEW, or had RSN to know, he was entrusting vehicle to UNFIT DRIVER, likely to CAUSE INJURY TO OTHERS.

18
Q

Respondeat Superior: When is EE not acting within the scope of e’ment?

A

When employee STEPS ASIDE from employer’s business and is engaged in INDEPENDENT VENTURE OF HIS OWN.

19
Q

Negligent Entrustment Claim: How can O be liable if driver caused injury while intoxicated?

A

If O knew or had reason to know the driver was ADDICTED TO INTOXICANTS, or has the HABIT OF DRINKING.

20
Q

What does a BAILMENT r’ship require?

A
  1. DELIVERY by bailor

2. CONSENT by bailee

21
Q

Are employers generally liable for INTENTIAL TORTS of employees?

A

No, except where:

  1. FORCE is authorized (i.e. bouncer)
  2. FRICTION is generated by employment (e.g., bill collector)
  3. Employee is furthering the business of the employer (e.g., removing rowdy customers)
22
Q

What are the requirements for a vicarious liability claim (for employer)?

A
  1. Principal-agent relationship

2. Tort occurs under scope of employment

23
Q

In VA is contributory negligence a complete bar to recovery?

A

YES

24
Q

What is the standard in a negligence case?

A

Reasonable person standard – what would a RSN person do in that case?

25
Q

What are 2 exceptions to the gen’l rule that someone isn’t responsible for torts committed by independent K’ors?

A
  1. ABNORMALLY DANGEROUS ACTIVITY
  2. Independent K’or holds himself out as an employee

Means business O would be ESTOPPED from arguing independent K’or r’ship

26
Q

What’s the primary factor when determining whether EE is actually an independent K’or?

A

The AMOUNT OF CONTROL the ER exercises over individual’s tasks.

27
Q

Exceptions to rule that contributory N is complete bar to recovery

A
  1. D’s VIOLATION OF STATUTE (where statute designed to protect class of plaintiff’s from their incapacity and lack of J’ment)
  2. INTENTIONAL TORTS
  3. LAST CLEAR CHANCE
28
Q

Is N a required showing for STRICT LIABILITY?

A

No. Even if D acted w/ RSN care, he’s still liable.

29
Q

Does VA have DRAMSHOP ACT?

A

No. Bar O’s not liable for patrons driving drunk.

30
Q

What is N per se?

A

When D violates statute, N per se is like strict liability.

P must show:

  1. D violated statute enacted for public safety
  2. P belongs to class of people for whose benefit the statute was enacted
  3. Statutory violation was PROXIMATE CAUSE of injury
31
Q

What are the elements of CONVERSION?

A
  1. WRONGFUL EXERCISE OF AUTHORITY over P’s property

2. that’s INCONSISTENT with its ownership right

32
Q

CONVERSION: Does tort of conversion apply only to tangible property?

A

Yes, but VA courts have found conversion may lie for certain intangible property rights that have been documented (like stock certificate/promissory note)

33
Q

What should court consider when deciding to grant injunctive relief?

A
  1. Is there ADEQUATE REMEDY AT LAW?
  2. Does P have LIKELIHOOD OF SUCCESS ON THE MERITS?
  3. BALANCE OF HARMS: Is P’s harm if injunction not granted greater than harm to D if granted?
  4. Does PUBLIC INTEREST weight in favor or against?
34
Q

What are the elements of BATTERY?

A
  1. Intentionally causing HARMFUL OR OFFENSIVE CONTACT w/ another
  2. w/ INTENT to harm
35
Q

When are PUNITIVE damages awarded in VA?

A

For WILLFUL OR WANTON conduct, or such RECKLESSNESS as evinces a CONCIOUS DISREGARD for the safety of others.

Rarely awarded in VA

36
Q

What is an action or inaction a PROXIMATE CAUSE?

A

When the injury wouldn’t have happened BUT FOR the action/inaction.

BUT, also must have been FORESEEABLE

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