Torts Flashcards
What are the elements of FRAUD?
- KNOWINGLY MADE FALSE REPRESENTATION (or CONCEALMENT of mat’l fact)
- of a MATERIAL FACT
- w/ the INTENT TO MISLEAD
- that’s RELIED UPON to P’s DETRIMENT
What is a defense to FRAUD?
IMPUTED KNOWLEDGE
Are liability waivers enforceable in VA?
No, they’re unenforceable b/c they’re against public policy.
Does VA follow rule of joint and several liability w/ right of contribution?
Yes
What is the right of contribution vis a vis joint and several liability?
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.
What are the elements of NEGLIGENCE?
- DUTY
- BREACH
- CAUSATION (ACTUAL AND PROXIMATE)
- DAMAGES
What is RES IPSA LOQUITOR?
Theory of negligence that allows a P to establish a prima facie case w/ only circumstantial E. Requires P to show:
- Accident is a type that wouldn’t normally occur unless someone was negligent
- Instrumentality that caused the harm was in the SOLE CONTROL of D.
- P didn’t contribute to the harm.
What is a LICENSEE?
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
What duty is owed to LICENSEE?
Possessor has duty to:
- WARN of or MAKE SAFE DANGEROUS CONDITIONS known to the O that create UNREASONABLE RISK OF HARM and Licensee is unlikely to discover.
- exercise RSN CARE in the conduct of “active operations” on the property.
What is an INVITEE?
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
What is duty of care owed to INVITEES?
Duty to keep premises in REASONABLY SAFE CONDITION.
Must WARN OF CONCEALED DANGERS and
ACTIVELY INSPECT premises to ensure dangers are discovered and rectified.
INVITEES: Does O have duty to warn of OPEN AND OBVIOUS DANGERS?
No
What is doctrine of RESPONDEAT SUPERIOR?
Employer liable for torts of employee committed W/I SCOPE OF EMPLOYMENT.
RESPONDEAT SUPERIOR: What is a DETOUR?
An employee’s MINOR DEVIATION from scope of employment.
Detours still considered within scope of e’ment.
RESPONDEAT SUPERIOR: Does employer have indemnification claim against employee?
Yes. Where employer found liable for EE’s torts, ER has indemnification claim against EE.
What is W/I SCOPE OF E’MENT for respondeat superior?
Act is within scope of e’ment if:
- It was expressly or impliedly DIRECTED BY EMPLOYER or is NATURALLY INCIDENT to the business, and
- it was performed, w/ INTENT TO FURTHER EMPLOYER’S INTEREST
What is a negligent entrustment claim? What is the test for such a claim?
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.
Respondeat Superior: When is EE not acting within the scope of e’ment?
When employee STEPS ASIDE from employer’s business and is engaged in INDEPENDENT VENTURE OF HIS OWN.
Negligent Entrustment Claim: How can O be liable if driver caused injury while intoxicated?
If O knew or had reason to know the driver was ADDICTED TO INTOXICANTS, or has the HABIT OF DRINKING.
What does a BAILMENT r’ship require?
- DELIVERY by bailor
2. CONSENT by bailee
Are employers generally liable for INTENTIAL TORTS of employees?
No, except where:
- FORCE is authorized (i.e. bouncer)
- FRICTION is generated by employment (e.g., bill collector)
- Employee is furthering the business of the employer (e.g., removing rowdy customers)
What are the requirements for a vicarious liability claim (for employer)?
- Principal-agent relationship
2. Tort occurs under scope of employment
In VA is contributory negligence a complete bar to recovery?
YES
What is the standard in a negligence case?
Reasonable person standard – what would a RSN person do in that case?
What are 2 exceptions to the gen’l rule that someone isn’t responsible for torts committed by independent K’ors?
- ABNORMALLY DANGEROUS ACTIVITY
- Independent K’or holds himself out as an employee
Means business O would be ESTOPPED from arguing independent K’or r’ship
What’s the primary factor when determining whether EE is actually an independent K’or?
The AMOUNT OF CONTROL the ER exercises over individual’s tasks.
Exceptions to rule that contributory N is complete bar to recovery
- D’s VIOLATION OF STATUTE (where statute designed to protect class of plaintiff’s from their incapacity and lack of J’ment)
- INTENTIONAL TORTS
- LAST CLEAR CHANCE
Is N a required showing for STRICT LIABILITY?
No. Even if D acted w/ RSN care, he’s still liable.
Does VA have DRAMSHOP ACT?
No. Bar O’s not liable for patrons driving drunk.
What is N per se?
When D violates statute, N per se is like strict liability.
P must show:
- D violated statute enacted for public safety
- P belongs to class of people for whose benefit the statute was enacted
- Statutory violation was PROXIMATE CAUSE of injury
What are the elements of CONVERSION?
- WRONGFUL EXERCISE OF AUTHORITY over P’s property
2. that’s INCONSISTENT with its ownership right
CONVERSION: Does tort of conversion apply only to tangible property?
Yes, but VA courts have found conversion may lie for certain intangible property rights that have been documented (like stock certificate/promissory note)
What should court consider when deciding to grant injunctive relief?
- Is there ADEQUATE REMEDY AT LAW?
- Does P have LIKELIHOOD OF SUCCESS ON THE MERITS?
- BALANCE OF HARMS: Is P’s harm if injunction not granted greater than harm to D if granted?
- Does PUBLIC INTEREST weight in favor or against?
What are the elements of BATTERY?
- Intentionally causing HARMFUL OR OFFENSIVE CONTACT w/ another
- w/ INTENT to harm
When are PUNITIVE damages awarded in VA?
For WILLFUL OR WANTON conduct, or such RECKLESSNESS as evinces a CONCIOUS DISREGARD for the safety of others.
Rarely awarded in VA
What is an action or inaction a PROXIMATE CAUSE?
When the injury wouldn’t have happened BUT FOR the action/inaction.
BUT, also must have been FORESEEABLE
