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Lexbar Cards > Torts > Flashcards

Torts Flashcards

1
Q

What is plaintiff’s burden of persuasion in a conversion action?

A

Preponderance

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2
Q

In Virginia, there is an irrebuttable presumption that a child under the age of _______________ is incapable of negligence.

A

7

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3
Q

Standard of care for a child

A

that of a reasonable child of similar age, intelligence, and experience.

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4
Q

What standard are children engaged in adult activities held to?

A

Same as adult

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5
Q

Under the last clear chance doctrine, plaintiff may mitigate the legal consequences of her own contributory negligence if she proves

A

defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.

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6
Q

Under Virginia law, total damages in medical malpractice actions occurring from July 1, 2016 to June 30, 2017 may not exceed

A

2.25 million

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7
Q

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

A

3 million

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8
Q

Conversion elements

A

1) wrongful exercise of authority over its property,

2) inconsistent w P’s ownership right

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9
Q

In general, conversion only applies to

A

tangible property, although Va cts have found that an action may lie for unlawful conversion of certain intangible property rights that have been documented

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10
Q

Respondeant superior

A

Employer is liable for torts committed by employee during scope of employment

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11
Q

In a Negligent entrustment motor vehicle case question is whether

A

Owner knew or had reason to know that he was entrusting vehicle to an unfit driver likely to cause injury to another

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12
Q

Negligent entrustment intoxicated driver

A

Whether owner knew or had reason to know that individual was addicted to intoxicants or has habit of drinking

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13
Q

Premises liability: invitee duty

A

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

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14
Q

Burden for intentional infliction of emotional distress

A

clear and convincing evidence

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15
Q

Virginia cts define false imprisonment as

A

an illegal restraint on another’s freedom

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16
Q

Once P demonstrates prima facie case of false imprisonment, it is up to D to show that restraint was

A

legal or justified

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17
Q

Conversion

A

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

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18
Q

Who can bring an action for conversion?

A

only person having property interest in and entitled to immediate possession of the item alleged to have been wrongfully converted

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19
Q

Does D have to apply property to his own use for P to recover for conversion?

A

No, irrespective of D’s good or bad faith, care or knowledge or ignorance w respect to the property

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20
Q

Can conversion relate to intangible property rights?

A

Yes, such as stocks, certificates, promissory notes, bonds, NIL,

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21
Q

conversion does not apply to claims for

A

interference w undocumented intangible property rights

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22
Q

Damages for conversion are based on

A

value of the property converted at time and place of conversion

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23
Q

Burden for conversion

A

preponderance

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24
Q

Virginia’s good samaritan law

A

protects ppl rendering emergency care, in good faith without compensation

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25
Q

Good samaritan law protects those rendering emergency obstetrical care from all but

A

gross negligence when pregnant woman’s medical records are not readily available

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26
Q

Emergency personnel are protected from liability while operating an emergency vehicle en route to an emergency so long as

A

they comply w warning lights and siren laws

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27
Q

Emergency personnel are not protected if injury results from

A

gross negligence or wanton misconduct

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28
Q

are those who render emergency aid to animals protected

A

yes

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29
Q

No duty on employer to supervise employee

A

Va does not recognize a cause of action based on a duty by an employer to supervise or train an employee

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30
Q

Negligent hiring action is based on whether

A

employer knew or should have known prospective employee to be dangerous or have a propensity to harm others

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31
Q

Children under 7

A

irrebuttable presumption that child under 7 is incapable of negligence

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32
Q

Children between 7 and 14

A

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

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33
Q

7-14 may be rebutted by

A

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

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34
Q

Common carriers and innkeeper duty

A

duty to exercise utmost care to protect customers and guests from personal injury

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35
Q

inkeeper duty re criminal conduct

A

duty to warn and protect guests from reasonably foreseeable injury from criminal conduct of a 3rd party (locks on hotel door)

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36
Q

Trespasser

A

someone who enters or remains upon the land of another without consent or privilege to do so.

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37
Q

Landowner duty to trespasser

A

to refrain from willful, wanton, reckless or intentional conduct

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38
Q

Attractive nuisance in VA

A

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

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39
Q

Duty owed for Recreational land use

A

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

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40
Q

Recreational land owner may be liable if

A

they collect a fee for recreational use or person enters land for other purposes

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41
Q

Recreational Landowner liability for actions of person who enters land and engages in intentional or negligent acts

A

landowner does not assume responsibility or incur liability for any intentional or negligent acts of recreational user

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42
Q

licensee duty

A

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

43
Q

In Va, a possessor of land will be liable to an invitee for injuries caused by the land if

A

possessor should have realized invitee would not have realized or appreciated the danger….

44
Q

Landowner has NO DUTY to protect invitee from

A

open and obvious dangers and dangers outside scope of invitation

45
Q

Host fulfills duty to exercise reasonable care for safery of child social guest if

A

host ensures that child is supervised by the parent and parent gave permission for activity leading to the injury

46
Q

Owner of Land’s Liability for Injury Caused by Third Party’s criminal Conduct

A

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

47
Q

Healthcare provider standard of care

A

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

48
Q

Negligence per se elements

A

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

49
Q

Conduct not covered by negligence per se

A

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

50
Q

Res ipsa loquitor

A

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

51
Q

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

A

D’s tortious conduct was a substantial factor in causing P’s harm

52
Q

Loss chance of recovery happens when

A

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

53
Q

Proximate cause test

A

injury must be the natural and probable consequence of the act and foreseeable

54
Q

To be a superseding cause, intervening cause must

A

produce the injury, w/o the defendant’s contributing negligence

55
Q

for med mal actions of negligence occurring from july 1, 2016-june 20, 2017, total damages limit is

A

$2.25 million… the amount increases annually by $50k until it equals $3 million in 2031

56
Q

Collateral source rule

A

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

57
Q

Punitive damages are available if… What is cap?

A

D acted w malice or under circumstances amounting to willful and wanton

Cap is $350k

58
Q

negligent infliction of emotional distress: injury requirement

A

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

59
Q

Survival actions

A

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

60
Q

Spouse’s right to Loss of Consortium

A

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

61
Q

Wrongful fetal death

A

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

62
Q

presumption when Employer owned a vehicle involved in accident and driver was employer

A

rebuttable presumption that driver was acting within scope of employment

63
Q

family purpose doctrine

A

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.

64
Q

Parent is liable for up to ____ in damage caused by willful or malicious act of his child

A

$2,500

65
Q

Dram Shop Act (liability for seller of alcohol)

A

Va does not recognize cause of action against seller of alcohol when 3rd party is injured due to buyer’s intoxication

66
Q

Virginia Torts Claims Act

A

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

67
Q

Va recognizes public duty doctrine, but primarily finds that public officials are protected by sovereign immunity except when

A

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

68
Q

Parental immunity for intentional torts and motor vehicle accidents

A

Va has eliminated immunity for this

69
Q

Intrafamily immunity defense in wrongful death actions

A

va has abrogated such defense for actions occurring after JUly 1, 2020

70
Q

Charitable immunity

A

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

71
Q

Joint and several liability right to contribution

A

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

72
Q

When must P’s contributory negligence occur to bar recovery?

A

At same time as D’s negligence

73
Q

Last clear chance: p’s contributory negligence does not bar recovery if

A

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

74
Q

Inattentive P: P’s contributory negligence does not bar recovery if

A

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

75
Q

Can person make K provision releasing him from liability for personal injury caused by future negligence?

A

No, however, K provisions releasing d from liability for property damage caused by D’s future negligence are enforceable

76
Q

Premises owner duty to Spectators

A

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

77
Q

Assumption of the risk

A

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

78
Q

Dog Bite Liability

A

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

79
Q

Strict liability for products liability

A

no strict liability for products liability. Instead, P may proceed under negligence or warranty action

80
Q

Products liability standard for products

A

product must be fit for ordinary purposes for which it is to be used.

81
Q

To recover under products liability theory, P must prove

A

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

82
Q

Lack of Privity Defense

A

not a defense if P was person whom manufacturer/seller might reasonably expected to use, consume or be affected by the goods.

83
Q

TV/Radio broadcaster liability for defamation

A

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

84
Q

In an action brought by a private individual to recover actual, compensatory damages for defamatory publication, the plaintiff may recover upon

A

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

85
Q

What kind of statements provide a person with immunity from tort liability

A

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

86
Q

does Va recognize torts of false light and unreasonable intrusion upon seclusion?

A

NO

87
Q

Right to publicity tort survives death of individual for how many years?

A

20

88
Q

if fraud claim is seeking purely equitable relief and there is no applicable sol, ___ will set time period for bringing the action

A

laches

89
Q

Attorneys fees may only be awarded in

A

actions where fraud is proved

90
Q

an employer may discharge at-will employee without cause except when

A

it violates established public policy

91
Q

contributory negligence

A

P failed to exercise reasonable care for their own safety.

92
Q

Invitee Liability: P must introduce evidence of owner’s ___ knowledge of defective condition on premises

A

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

93
Q

Landowner’s duty once trespasser becomes known to landowner

A

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

94
Q

Virginia Statute of Repose re injury arising from defective and unsafe condition of an improvement to real property

A

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

95
Q

Elements of contributory negligence

A

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

96
Q

elements of assault

A

1) voluntary act
2) intended to contact P or cause them to apprehend contact
3) Causing P to apprehend contact

97
Q

Battery elements

A

1) voluntary Act
2) intended to contact P
3) contact that is harmful or offensive

98
Q

Battery: Contact can be

A

Direct or indirect

99
Q

IIED elements

A

P must show that D engaged in extreme and outrageous conduct that either intentionally or recklessly caused the P severe emotional distress

100
Q

Extreme and outrageous conduct is conduct that

A

transcends the bounds of decency and is utterly interolerable in a civilized society

101
Q

3rd party may bring IIED claim if

A

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

102
Q

To show child P’s conduct amounted to contributory negligence, evidence must show

A

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

103
Q

To prove P assumed the risk, D must show

A

P fully understood and appreciated a known danger and voluntarily exposed himself to it

104
Q
A

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