Torts

Question 1

Special Negligence- Age Based Exceptions for Children

Answer 1

In Virginia, a child below the age of 7 is deemed incapable of being negligent. For children ages 7-14, there is a rebuttable presumption that a child cannot be negligent.

Question 2

Special Negligence- Professionals Standard

Answer 2

Virginia generally has a statewide standard of care rule for physicians. However, a locality standard of care will be followed if a party shows that the availability of health care services and facilities and the customary practices in the locality make that standard of care more appropriate than a statewide standard.

Question 3

Attractive Nuisance Doctrine

Answer 3

Virginia rejects the attractive nuisance doctrine. Virginia does, however, recognize the fact that, where children are concerned, the degree of care to be exercised is greater than where adults alone are involved.

Question 4

VA Good Samaritan Statute

Answer 4

Virginia’s Good Samaritan statute applies to all persons who provide aid in an emergency situation, not just medical personnel. Statute exempts all from liability for ordinary, but not gross, negligence.

Question 5

Negligent Infliction of Emotional Distress - standard for distress caused

Answer 5

Virginia requires the plaintiff to show by clear and convincing evidence that the distress caused symptoms or manifestations of physical injury, rather than just the typical symptoms of an underlying emotional disturbance

Question 6

NEID Bystander Rule for Recovery

Answer 6

Virginia retains the traditional rule that a bystander outside the “zone of danger” cannot recover damages for distress from seeing the defendant negligently injure another.

Question 7

Effect of Contributory Negligence

Answer 7

While Virginia retains traditional contributory negligence, whereby the plaintiff’s contributory negligence is a complete bar to recovery, Virginia also recognizes the last clear chance doctrine to alleviate the harshness of this rule. In “helpless peril” cases, last clear chance applies when the defendant should have known of the plaintiff’s peril. In “inattentive peril” cases, last clear chance applies when the defendant saw the plaintiff and realized, or should have realized, the plaintiff’s peril.

Question 8

strict liability in products liability actions

Answer 8

Virginia courts have not applied strict liability in products liability actions. However, Virginia allows a broad range of plaintiffs to sue under a breach of warranty theory.

Question 9

Horizontal Privity Requirement

Answer 9

Virginia has adopted the broadest version of the horizontal privity requirement. Lack of privity between the plaintiff and defendant is no defense in any action brought against the manufacturer or seller of goods to recover damages for breach of warranty, express or implied, or for negligence.

Question 10

Independent Contractor - Vicarious Liability Exception

Answer 10

In Virginia, regular and routine maintenance, repair, and janitorial services are nondelegable as a landowner has a duty to maintain the premises in a reasonably safe condition. Thus a landowner could be held vicariously liable for an independent contractor’s negligence in such situations. However, a landowner will not be held vicariously liable for the negligence of the independent contractor in improvement projects when the contractor has full control over the part of the premises being renovated.

Question 11

NO Family Car Doctrine

Answer 11

In VA the owner of an automobile is not liable for the tortious conduct of immediate family or household members who are driving with the owner’s permission.

Question 12

Parental Liability for Child Torts

Answer 12

In Virginia, by statute, a parent is liable for willful or malicious damage done by their child to public or private property up to $2,500.

Question 13

VA State Tort Immunity

Answer 13

Virginia permits tort suits against the Commonwealth and transportation districts, with a cap on recovery of either $100,000 or the limit of liability insurance, whichever is greater. Virginia retains municipal immunity; hence, municipalities are immune when engaged in governmental functions but may be liable when carrying out proprietary functions.

Question 14

Immunity of Public Officials

Answer 14

Generally, government employees will not be cloaked in sovereign immunity in cases of gross negligence, intentionally tortious conduct, or when they act outside the scope of their employment. Claims of gross negligence will not defeat sovereign immunity if it can be shown that the defendant exhibited some level of care.

Question 15

Charitable Immunity

Answer 15

Charitable institutions are immune from liability for negligence arising from acts of their servants and agents if due care has been exercised in their selection or retention.

Question 16

Libel v. Slander

Answer 16

In Virginia, no distinction is made between libel and slander. No special damages must be proven- damages are presumed if in one of the slander per se categories: These are defamatory statements that:
* Adversely reflect on the plaintiff’s business or profession
* State that the plaintiff has committed a serious crime (this includes most common law crimes and is sometimes referred to as crimes involving “moral turpitude”)
* Impute that the plaintiff has engaged in serious sexual misconduct
* State that the plaintiff has a loathsome disease

Question 17

Invasion of Privacy Causes of Action

Answer 17

Virginia has codified just one branch of invasion of privacy: Appropriation of the plaintiff’s name or likeness for the defendant’s commercial gain.
The other three branches of the common law tort of invasion of privacy were not included in the statute. Hence, the legislature has implicitly rejected them as viable causes of action in Virginia.

Question 18

Retaliatory Discharge

Answer 18

Retaliatory Discharge
Even though “at-will” employees generally may be terminated for no reason, Virginia recognizes a common law action for retaliatory discharge in three narrow categories:
(1) When an employer violates a public policy enabling the employee’s exercise of a right created by statute;
(2) When an employer violates a public policy explicitly expressed in a statute, and the employee is a member of the class of persons entitled to the protection intended by the public policy; and
(3) When the discharge is based on the employee’s refusal to engage in a criminal act.