Torts Essay Rules Flashcards
An employer is liable for torts committed by an employee if
The torts are committed within the scope of employment
There generally is no liability for the torts of an IC unless
1) The activity is inherently dangerous; or
2) The duty is nondelegable on public policy grounds
Whether an individual is an employee or independent contractor depends on how much
Control is exerted over their work
While public policy imposes a nondelegable duty on a business to keep its premises safe for customers, this typically involves
Routine cleaning, maintenance, and repair activities in areas open to the customers, where the premises owner will more likely have an input over operation of these activities
Generally, the kind of duty owed by a landowner to those on the premises depends on whether the individual of the premises is
A trespasser, licensee, or invitee
An invitee is a person who enters the premises in response to ________, such as someone who enters for a purpose connected with the business of ________
An express or implied invitation of the landowner; the landowner
T/F An invitee is a person who enters the premises in response to an express or implied invitation of the landowner, such as someone who enters for a purpose connected with the business of the landowner
True
An invitee is a person who enters the premises in response to ________ or ________, such as someone who
An express or implied invitation of the landowner; enters for a purpose connected with the business of the landowner
Innkeepers are required to exercise
A very high degree of care toward their guests
A landowner owes an invitee
A general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee
This includes a duty to warn of or make safe nonobvious, dangerous conditions known to the landowner and a duty to make reasonable inspections to discover dangerous conditions
There is generally not a duty to warn if a dangerous condition is so obvious that an invitee should reasonably have been aware of it
An employer generally will be vicariously liable for a tort committed by an employee
Within the scope of an employment
An ________ is generally not considered to be within the scope of the employment. Exceptions to this rule exist when the employee is ________, ________, or ________
Intentional tort; furthering the business of the employer; force is authorized in the employment; friction is generated by the employment
Assault
1) Act by D creating reasonable apprehension in P of immediate or offensive contact
2) Intent by D to bring about that apprehension in P; and
3) Causation
A D intends the consequences of their conduct if
Their purpose is to bring about the consequences, or if they know with substantial certainty that the consequences will result
A D intends the consequences of their conduct if their purpose is to ________ or if they know with ________ that the consequences will result
Bring about the consequences; substantial certainty
A D may be liable even for an unintended injury if
They intended to bring about the consequences that form the basis of the tort
A D may be liable even for an unintended injury if they intended to bring about ________ that form the basis of the tort
The consequences
Doctrine of transferred intent
If a D intends to commit one tort against one person, but instead commits that tort or a different tort against another person, their intent transfers from one to the other, and tort to tort
Doctrine of transferred intent (assault)
In the case of an assault, there is liability when a D acts with the intent to bring about either contact or the apprehension of contact in one person, but instead, causes the apprehension of contact in another
Mitigation of damages
A P has a duty to take reasonable steps to mitigate damages
In the case of PI, mitigation of damages means
Seeking appropriate treatment to effect a cure or healing and to prevent aggravation of injury
A P’s failure to mitigate
Precludes recovery of additional damages caused by any aggravation of the injury
Battery
1) An act by D which brings about harmful or offensive contact to P
2) Intent by D to bring about harmful or offensive contact; and
3) Causation
A D is liable not only for direct contact, but also for
Indirect contact, meaning that it is sufficient if they “set in motion a force” that brings about a contact to the P
A D is liable not only for ________ contact, but also for ________ contact, meaning that it is sufficient if they ________ that brings about a contact to the P
Direct contact; indirect contact; set in motion a force
Negligence
1) Existence of a duty
2) Breach of that duty
3) That breach was an actual and proximate cause of the P’s injury; and
4) Damages
Negligence duty of care owed to
Foreseeable Ps
Someone who is not within “________” from the D’s conduct cannot recover
Zone of danger
Does doctrine of transferred intent apply in cases of IIED?
No
IIED
**1) An act by D amounting to extreme and outrageous conduct
2) Intent by D to cause the P to suffer severe emotional distress, or recklessness as to the D’s conduct
3) Causation
4) Damages
Outrageous conduct
Conduct that transcends all bounds of decency tolerated in a civilized society
In addition to intentional conduct, the intent element is satisfied where the D acted in (IIED)
Reckless disregard of a high probability
When the D’s conduct is directed at a third person and another claims distress, the elements of intent and causation generally require the additional showing that (IIED)
1) P was present at the time of the conduct
2) The distress resulted in bodily harm, or the P was a close relative of the party; and
3) D knew these facts
When D’s conduct is directed at a third person and another claims distress (IIED) the elements of intent and causation generally require the additional showing that
1) P was present at the time of the conduct
2) The distress resulted in bodily harm, or the P was a close relative of the party; and
3) D knew these facts
VA rejects the family car doctrine, so in VA, the owner of an automobile is not
Vicariously liable for the tortious conduct of family members who are driving with the owner’s express or implied permission
However, an owner may be liable for their own negligence in entrusting their vehicle to another driver
VA rejects the family car doctrine, so in VA, the owner of an automobile is not ________ for the tortious conduct of family members who are driving with the owner’s ________ or ________
However, an owner may be liable for their ________ in entrusting their vehicle to another driver
Vicariously liable; express; implied permission
Own negligence
Minors between the ages of 7 and 14 are presumed to be incapable of
Negligence
Minors between what ages are presumed to be incapable of negligence?
Minors between the ages of 7 and 14
The presumption that minors between the ages of 7 and 14 are presumed to be incapable of negligence can be
Rebutted, and the minor found negligent, when it can be established that the minor has the experience, intelligence, maturity, training, or capacity to conform their conduct to a standard of care
Children are generally held to the standard of
A child of like age, intelligence, and experience
A P may be denied recovery if they ________ caused by the D’s acts
Assumed the risk
To have assumed the risk, either expressly or impliedly, the P must have
Fully understood the nature and extent of a known risk and voluntarily assumed it
[It is irrelevant that the P’s choice is unreasonable]
An employer is vicariously liable for tortious acts committed by their employees if the tortious act occurs
Within the scope of the employment relationship
Although an employer typically is not liable for intentional torts committed by their employees, in certain circumstances liability may be found
This includes:
Force authorized in the employment and intentional torts committed in the furtherance of the employer’s business
An employer is vicariously liable for tortious acts committed by their employees if the tortious act occurs within the scope of the employment relationship
Generally, a worker who performs services is an employee if the employer can control both
What will be done and how it will be done
The key factor is that the employer has the right to control the details of how the services are performed, even if the employee has substantial freedom of actions
Generally, a worker who performs services is an employee if the employer can control both ________ and ________. The key factor is that ________
The employer can control both what will be done and how it will be done
The employer has the right to control the details of how the services are performed, even if the employee has substantial freedom of actions
Generally, a worker who performs services is an employee if ________
The employer can control both what will be done and how it will be done
An employer is vicariously liable for tortious acts committed by their employees if the tortious act occurs within the scope of the employment relationship
Generally, a worker who performs services is an employee if the employer can control both what will be done and how it will be done
The key factor is that ________
The employer has the right to control the details of how services are performed, even if the employee has substantial freedom of actions
[Although Larry remained on Zane’s payroll when borrowed by SafeCorp, nothing in the facts suggest that Zane’s had any control over what services Larry performed at Roscoe’s or how he performed those services, including where he was stationed while he was there, what responsibilities he was assigned, and even what he wore to the job
An independent contractor is one who
Performs services required by an employer but is not subject to the employer’s control about how the services are performed
In general, a principal will not be vicariously liable for torts committed by
ICs
T/F Although, generally speaking, a principal will not be liable for the torts of independent contractors, there are exceptions, including when the IC is engaged in an inherently dangerous activity
True
Courts generally find that an activity is inherently dangerous if it involves
A substantial risk of harm even when reasonable care is exercised, and it is not a matter of common usage in the community
[Unlikely that the mere presence of armed guards in a retail store would be considered inherently dangerous]
T/F A D may be liable to a P for compensatory damages
True
T/F In addition to compensatory damages, punitive damages are available with intentional torts
True
Is compensatory and punitive damages available with intentional torts?
Yes
Negligence requires the showing of
1) A duty on the part of the D to conform to a specific standard of conduct for the protection of the P against unreasonable risk of injury
2) Breach of that duty
3) That the breach was an actual and proximate cause of the P’s injuries, and
4) Actual damages
When a person engages in an activity, they are under a legal duty to act as
A reasonably prudent person under the same or similar circumstances
In the case of an actor who is a professional or has special skills, such as a professional bus driver, that individual is required to act with
The judgment and skill of other members of their occupation in good standing
[A reasonable bus driver would follow traffic rules, including stopping at traffic lights when they are red]
Negligence per se is
An unexcused statutory violation; in other words, it establishes the first two elements in the p/f case - a conclusive presumption of duty and breach of duty
An employer is vicariously liable for the tortious acts committed by their employee if the tortious act occurs within the scope of the employment relationship
This includes torts committed on a delivery or business trip while deviating from the employer’s business to run a personal errand, where the deviation is
Minor in time and geographical area
[An employer is not liable where the deviation is a “frolic” of the employee’s own]
An employer is not liable where the deviation is
A “frolic” of the employee’s own
A landowner has a duty to exercise ________ with respect to their ________ so as to avoid ________ to those ________
Reasonable care; activities on the land; unreasonable risk of harm; outside the property
Generally, a D’s actions are a proximate cause of an injury when they result in
A foreseeable harm
[Reasonably foreseeable that a tree left in such a state could fall and injure someone traveling on the road, particularly because she was aware of a severe storm approaching]
Actions of a rescuer are almost always viewed as
A foreseeable intervening force that does not cut off the D’s liability
The Good Samaritan statute protects individuals who provide aid to others in emergency situations from liability for
ORDINARY negligence
T/F Even if acts could be characterized as negligent, the Good Samaritan statute provides a defense
True
Contributory negligence applies when
A P ‘s failure to act in a reasonable and prudent manner contributes to the P’s injury; in VA, it is a complete bar to recovery
[However, a P engaged in rescue may take extraordinary risks without being considered contributorily negligent]
A P engaged in a rescue may take extraordinary risks without being considered
Contributorily negligent
A landowner owes an invitee a duty to use
Ordinary care to maintain the property in a reasonably safe condition
[This duty is generally satisfied by providing a warning of dangerous conditions]
[Additionally, the landowner generally does not have a duty to warn of open and obvious dangers
Negligence per se is essentially what kind of claim?
A strict liability claim
To establish a claim based on negligence per se, a P must
1) Prove that the D violated a statute that was enacted for public safety, (type of harm)
2) Establish that he belongs to the class of persons for whose benefit the statute was enacted (class of people), and
3) Prove that the statutory violation was a proximate cause of his injury
T/F The Supreme Court of VA has held that the sale of alcoholic beverages is not the proximate cause of later acts committed by purchase, and thus, VA does not recognize a claim against the seller of alcohol in such circumstances
True
The Supreme Court of VA has held that a common law negligence action does not lie against a vendor who provided alcoholic beverages to a person who later drove an automobile and injures a third party
True
VA courts have held that if the employee steps aside from his employer’s business and is engaged in an independent venture of his own,
The employee is no longer acting within the scope of his employment [significant departure]
To prevail on an negligent entrustment claim in a motor vehicle case, the test of liability in VA is
Whether the owner of the vehicle knew, or had reason to know, that he was entrusting his vehicle to an unfit driver, likely to cause injury to others
In motor vehicle cases involving the intoxication of the D driver, the P must prove that
The owner knew or had reason to know that the person to whom the vehicle was entrusted is addicted to intoxicants, or has the habit of drinking
In short, the owner must know, or should have known, that the driver’s habits are such that he is likely to drive while intoxicated
T/F In a negligent entrustment case, testimony of interest parties is given lesser weight than testimony from independent witnesses
True
Under the last clear chance doctrine, the P may mitigate the legal consequences of her own contributory negligence if she proves that
The D had the last clear chance to avoid injuring the P but failed to do so
The standard of care imposed on a child is that of a reasonable child of similar age, intelligence, and experience
Children engaged in adult activities are held to the same standard as an adult. In Virginia, there is an irrebuttable presumption that a child under the age of seven is incapable of negligence
