Torts Flashcards
What is plaintiff’s burden of persuasion in a conversion action?
Preponderance
In Virginia, there is an irrebuttable presumption that a child under the age of _______________ is incapable of negligence.
7
Standard of care for a child
that of a reasonable child of similar age, intelligence, and experience.
What standard are children engaged in adult activities held to?
Same as adult
Under the last clear chance doctrine, plaintiff may mitigate the legal consequences of her own contributory negligence if she proves
defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.
Under Virginia law, total damages in medical malpractice actions occurring from July 1, 2016 to June 30, 2017 may not exceed
2.25 million
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
Conversion elements
1) wrongful exercise of authority over its property,
2) inconsistent w P’s ownership right
In general, conversion only applies to
tangible property, although Va cts have found that an action may lie for unlawful conversion of certain intangible property rights that have been documented
Respondeant superior
Employer is liable for torts committed by employee during scope of employment
In a Negligent entrustment motor vehicle case question is whether
Owner knew or had reason to know that he was entrusting vehicle to an unfit driver likely to cause injury to another
Negligent entrustment intoxicated driver
Whether owner knew or had reason to know that individual was addicted to intoxicants or has habit of drinking
Premises liability: invitee duty
An invitee is a business guest. Owner owes invitee duty to keep premises in reasonably safe condition. An owner w constructive notice of defect breaches its duty to keep premises reasonably safe
Burden for intentional infliction of emotional distress
clear and convincing evidence
Virginia cts define false imprisonment as
an illegal restraint on another’s freedom
Once P demonstrates prima facie case of false imprisonment, it is up to D to show that restraint was
legal or justified
Conversion
wrongful assertion or exercise of the right of ownership over goods or other tangible PP belonging to another in denial of or inconsistent w the owner’s rights
Who can bring an action for conversion?
only person having property interest in and entitled to immediate possession of the item alleged to have been wrongfully converted
Does D have to apply property to his own use for P to recover for conversion?
No, irrespective of D’s good or bad faith, care or knowledge or ignorance w respect to the property
Can conversion relate to intangible property rights?
Yes, such as stocks, certificates, promissory notes, bonds, NIL,
conversion does not apply to claims for
interference w undocumented intangible property rights
Damages for conversion are based on
value of the property converted at time and place of conversion
Burden for conversion
preponderance
Virginia’s good samaritan law
protects ppl rendering emergency care, in good faith without compensation
Good samaritan law protects those rendering emergency obstetrical care from all but
gross negligence when pregnant woman’s medical records are not readily available
Emergency personnel are protected from liability while operating an emergency vehicle en route to an emergency so long as
they comply w warning lights and siren laws
Emergency personnel are not protected if injury results from
gross negligence or wanton misconduct
are those who render emergency aid to animals protected
yes
No duty on employer to supervise employee
Va does not recognize a cause of action based on a duty by an employer to supervise or train an employee
Negligent hiring action is based on whether
employer knew or should have known prospective employee to be dangerous or have a propensity to harm others
Children under 7
irrebuttable presumption that child under 7 is incapable of negligence
Children between 7 and 14
there is a REBUTTABLE presumption that children between 7 and 14 are legally incapable of negligence bc they lack capacity to understand dangers of their acts
7-14 may be rebutted by
evidence that child had capacity to understand the peril and shown that child-P’s conduct amounted to contributory negligence by applying the reasonable child standard to P’s conduct
Common carriers and innkeeper duty
duty to exercise utmost care to protect customers and guests from personal injury
inkeeper duty re criminal conduct
duty to warn and protect guests from reasonably foreseeable injury from criminal conduct of a 3rd party (locks on hotel door)
Trespasser
someone who enters or remains upon the land of another without consent or privilege to do so.
Landowner duty to trespasser
to refrain from willful, wanton, reckless or intentional conduct
Attractive nuisance in VA
attractive nuisance doctrine has been repudiated in VA but landowner may be held liable for leaving an instrument w a hidden danger on an area of his property that is easily accessible to children and known to be frequented by children
Duty owed for Recreational land use
in VA, landowner does not owe a duty of care to persons entering land for specfic recreational purposes, such as hunting and fishing
Landowner is not required to warn such persons of hazardous conditions, regardless of whether landowner gave person permission
Recreational land owner may be liable if
they collect a fee for recreational use or person enters land for other purposes
Recreational Landowner liability for actions of person who enters land and engages in intentional or negligent acts
landowner does not assume responsibility or incur liability for any intentional or negligent acts of recreational user
licensee duty
duty to warn of concealed dangers known or that should be obvious… no duty to inspect for dangers, but must use reasonable care in conducting activities on the land
In Va, a possessor of land will be liable to an invitee for injuries caused by the land if
possessor should have realized invitee would not have realized or appreciated the danger….
Landowner has NO DUTY to protect invitee from
open and obvious dangers and dangers outside scope of invitation
Host fulfills duty to exercise reasonable care for safery of child social guest if
host ensures that child is supervised by the parent and parent gave permission for activity leading to the injury
Owner of Land’s Liability for Injury Caused by Third Party’s criminal Conduct
an owner or occupier of land is generally not under common law duty to warn or protect an invitee on his property from criminal act of third party unless there is special relationship between the landowner or occupier and injured party or 3rd party.
Knowledge of prior criminal activity on D’s premises or in its vicinity by unknown persons is not sufficient to give rise to a duty
Healthcare provider standard of care
Healthcare providers are held to standard of other licensed healthcare providers in Virginia.
A locality standard can be applied if it is shown to be more appropriate….
applies to specialists as well
Negligence per se elements
i) d violated statute enacted for public safety
ii) P belongs to class of persons for whose benefit the statute was enacted
iii) statutory violation was a proximate cause of her injury
Conduct not covered by negligence per se
stat provisions prohibiting sale of alcoholic beverages to individuals under 21 and to intoxicated individuals bc violation is not proximate cause of an injury inflicted by the underage or intoxicated individual
Res ipsa loquitor
i) instrumentality causing damage was in exclusive control of D
ii) accident was of kind that does not occur if due care is used
iii) evidence regarding the cause of accident is available to D and unavailable to injured party
in cases where conduct of D together w some other cause may have contributed to a P’s indivisible injury, each of which alone would have been a factual cause of that injury, the test is whether
D’s tortious conduct was a substantial factor in causing P’s harm
Loss chance of recovery happens when
In Virginia, loss of chance of recovery arises in wrongful death suits. A physician destroyed any substantial chance the patient could survive, his conduct is a proximate cause of patient’s death. Evidence that the physician’s actions destroyed patient’s chance to survive is evidence a jury should consider when determining proximate cause
Proximate cause test
injury must be the natural and probable consequence of the act and foreseeable
To be a superseding cause, intervening cause must
produce the injury, w/o the defendant’s contributing negligence
for med mal actions of negligence occurring from july 1, 2016-june 20, 2017, total damages limit is
$2.25 million… the amount increases annually by $50k until it equals $3 million in 2031
Collateral source rule
benefits or payment provided to P from outside sources (insurance) are not credited against the liability of the tortfeasor nor is evidence of such payments admissible at trial
Punitive damages are available if… What is cap?
D acted w malice or under circumstances amounting to willful and wanton
Cap is $350k
negligent infliction of emotional distress: injury requirement
physical injury is required to recover for an action for NIED.
P cannot recover for merely witnessing an injury to a 3rd party, but must instead experience shock or fright that manifests as a physical injury and is proximately caused by D’s negligence
Survival actions
all actions survive death of P and D…. If p died after asserting cause of action and as a result of injury complained of, action can be amended
Spouse’s right to Loss of Consortium
spouse has no right of action for loss of consortium for injuries sustained by other spouse
Wrongful fetal death
whenever a fetal death is caused by wrongful act, neglect or default of any person or corp, natural mother may bring an action against such tortfeasor
presumption when Employer owned a vehicle involved in accident and driver was employer
rebuttable presumption that driver was acting within scope of employment
family purpose doctrine
VA has rejected family purpose doctrine that the owner of an automobile may be liable for the tortious acts of any family member driving the car with permission.
Parent is liable for up to ____ in damage caused by willful or malicious act of his child
$2,500
Dram Shop Act (liability for seller of alcohol)
Va does not recognize cause of action against seller of alcohol when 3rd party is injured due to buyer’s intoxication
Virginia Torts Claims Act
limits liability of Commonwealth employee acting within scope of employment that caused damage to or loss of property or personal injury or death of a P…
limit of recovery is greater of $100k or max limit of any applicable insurance policy
Va recognizes public duty doctrine, but primarily finds that public officials are protected by sovereign immunity except when
a public official owes a special duty to control the behavior of a third party, and the third party commits acts of assaultive criminal behavior upon another
Parental immunity for intentional torts and motor vehicle accidents
Va has eliminated immunity for this
Intrafamily immunity defense in wrongful death actions
va has abrogated such defense for actions occurring after JUly 1, 2020
Charitable immunity
charitable institutions are immune from negligence on the part of their agents but may be liable for negligence in selection or retention of the agent
Joint and several liability right to contribution
tortfeasors have a right to contribution if their liability arises from negligence (not inetional tort) and it does not involve an act of moral turpitude
When must P’s contributory negligence occur to bar recovery?
At same time as D’s negligence
Last clear chance: p’s contributory negligence does not bar recovery if
1) P negligently placed himself in a situation of peril from which he was physically unable to remove himself
2) D saw and realized or should have seen and realized P’s peril and
3) D could have avoided the accident by using ordinary care
Inattentive P: P’s contributory negligence does not bar recovery if
1) P negligently placed himself in a situation of peril
2) P was physically able to remove himself from the situation but was unaware of his peril
3) D actually saw P and realized or should have realized his peril and
4) D could have avoided the accident by using ordinary care
Can person make K provision releasing him from liability for personal injury caused by future negligence?
No, however, K provisions releasing d from liability for property damage caused by D’s future negligence are enforceable
Premises owner duty to Spectators
reasonable care to protect invitee’s safety… mmust take reasonable precautions to protect the invitees from foreseeable dangers that arise from the enterprise that is undertaken on the land
Assumption of the risk
subjective standard, addressing whether P fully understood nature and extent of a known danger and voluntarily exposed herself to that danger…. a jury question… complete bar to recovery if proven
Dog Bite Liability
VA does not have statute imposing strict liability on dog owners….
However Va does have a stat relating to dogs that have been found to be dangerous after a hearing …dangerous dog must have muzzle and leash on when out…
violations of statutes involving dogs constitute negligence per se
Strict liability for products liability
no strict liability for products liability. Instead, P may proceed under negligence or warranty action
Products liability standard for products
product must be fit for ordinary purposes for which it is to be used.
To recover under products liability theory, P must prove
i) product was UNREASONABLY DANGEROUS for the use it would ordinarily be put to or other reasonably foreseeable purpose; and
ii) unreasonably dangerous condition EXISTED AT TIME LEFT MANUFACTURER
Lack of Privity Defense
not a defense if P was person whom manufacturer/seller might reasonably expected to use, consume or be affected by the goods.
TV/Radio broadcaster liability for defamation
only liable when broadcaster fails to exercise due care to prevent statement from being broadcast.
not liable for statements by or on behalf of political candidates
In an action brought by a private individual to recover actual, compensatory damages for defamatory publication, the plaintiff may recover upon
proof by preponderance of evidence that publication was false, and that D either knew it to be false or believing it to be true, lacked reasonable grounds for such belief or acted negligently in failing to ascertain the facts on which publication was based
What kind of statements provide a person with immunity from tort liability
1) relate to matter of public concern protected by 1st amendment made by person that are communicated to a 3rd party
2) made at a public hearing of a gov body; or
3) made by an employee against an employer when retaliatory action is prohibited by law
does Va recognize torts of false light and unreasonable intrusion upon seclusion?
NO
Right to publicity tort survives death of individual for how many years?
20
if fraud claim is seeking purely equitable relief and there is no applicable sol, ___ will set time period for bringing the action
laches
Attorneys fees may only be awarded in
actions where fraud is proved
an employer may discharge at-will employee without cause except when
it violates established public policy
contributory negligence
P failed to exercise reasonable care for their own safety.
Invitee Liability: P must introduce evidence of owner’s ___ knowledge of defective condition on premises
constructive…shown by evidence that defect was noticeable and had existed for a sufficient length of time to charge its possessor w notice of its defective condition
Landowner’s duty once trespasser becomes known to landowner
minimal duty to warn or make safe artificial conditions that are highly dangerous and concealed if these conditions are known to land possessor in advance
Virginia Statute of Repose re injury arising from defective and unsafe condition of an improvement to real property
cant bring action to recover for injury arising from defective/unsafe condition of an improvement to real property or contribution for damages sustained if more than 5 yrs has passed since performance of such services
Elements of contributory negligence
1) P failed to exercise reasonable care for their own safety;
2) P failed to act as a reasonable person would have acted under the circumstances; and
3) P’s failure to exercise reasonable care was the proximate cause in causing their injury/damages
elements of assault
1) voluntary act
2) intended to contact P or cause them to apprehend contact
3) Causing P to apprehend contact
Battery elements
1) voluntary Act
2) intended to contact P
3) contact that is harmful or offensive
Battery: Contact can be
Direct or indirect
IIED elements
P must show that D engaged in extreme and outrageous conduct that either intentionally or recklessly caused the P severe emotional distress
Extreme and outrageous conduct is conduct that
transcends the bounds of decency and is utterly interolerable in a civilized society
3rd party may bring IIED claim if
COnduct is directed at 3rd Party P and
1) P is present at the scene,
2) closely related to V
3) D knows of close relationship status
4) P suffered physical injury
To show child P’s conduct amounted to contributory negligence, evidence must show
P’s conduct did not conform to standard of what a reasonable person of like age, intelligence, and experience would do under circumstances for his own safety and protection
To prove P assumed the risk, D must show
P fully understood and appreciated a known danger and voluntarily exposed himself to it
IIED elements
1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress;
2) the plaintiff’s suffering of severe or extreme emotional distress; and
3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.
