Torts/Misc. Equity Flashcards
What is private nuisance?
An action that unreasonably interferes with the use and enjoyment of P’s land in a way unique to P
Lexbar/Feb 2010
What is needed to obtain injunctive relief?
A showing that P’s remedy at law (i.e., money damages) is inadequate
Lexbar/Feb 2010
What is the defense of unclean hands?
A party seeking equitable relief must himself not have been guilty of inequitable or wrongful conduct (e.g., self-help/retaliation)
Lexbar/Feb 2010
What is the defense of laches and when is it available?
Laches is an equitable defense in which D claims that P failed to assert a right within a reasonable amount of time, and the delay in asserting the right prejudiced D’s interests and ability to defend against the claim
* Available in defending against equitable claims
Feb 2015
When is the defense of laches not allowed?
When there is an applicable statute of limitations
Feb 2015
When is specific performance an approrpiate remedy?
Where a party can show that there is an inadequate remedy at law for the damages caused by the other party’s breach of contract
* Doubs as to the adequacy of a remedy existing at law decided in favor of party seeking specific performance
Feb 2015
When do property owners owe a duty of care with respect to their property?
Duty to maintain property in reasonably safe condition when portions of their property expose the public to risk
* When property has elements which threaten public space, a duty is imposed
July 2016
What is Virginia’s Good Samaritan statute?
One who, in good faith, renders emergency care or assistance, is shielded from ordinary negligence, but not gross negligence
* Standard of care is that of a reasonable rescuer under the circumstances
July 2016
What is the effect of a pre-injury release provision in VA?
It is void against public policy–can K around injury to property but not personal injuries caused by negligence
Feb 2017
What is VA’s rule on liability for acts of an independent contractor?
Landowner NOT liable for negligence of indpendent contractor in improvement projects when the contractor has full control over the part of the premises being renovated
* Distinct from non-delegable duty to keep premises safe for customers that usually exists
Feb 2017
If a plaintiff seeks to assert conspiracy to interfere with her employment, what must she show?
A conspiracy to induce breach of contract requires showing that there was a conspiracy and pursuant to that conspiracy the contract was breached
* CONSPIRACY REQUIRES TWO OR MORE PERSONS (e.g., if b/w corporation and president, where president was sole agent of C engaged in “conspiratorial” conduct, there is no conspiracy)
Feb 2018
What type of employment state is VA and what exceptions exist?
AT WILL subject to exceptions for employees discharged in violation of established public policy
Feb 2018
What factors will a court look to in establishing liability through respondeat superior?
Assuming an employment relationship is established, they will look to whether the act was: (1) expressly or impliedly directed by the employer (or naturally incident to the business) and (2) whether it was performed with the intent to further the employer’s interest
July 2019
When may respondeat superior apply to the acts of an independent contractor?
When: (1) the activity is abnormally dangerous and (2) when the IC holds themselves out to be an employee
In general, look to amount of control exercised over IC
July 2019
What is a dramshop act and does VA have one?
Holds establishments serving alcohol strictly liable for accidents caused by those that are visibly overserved
* VA DOES NOT HAVE ONE–no SL for overserving
July 2019
What is required to show negligence per se?
That D violated a statute and P was: (1) in the class of people and (2) within the class of risk the statute was intended to protect
* Effect is that duty and breach are shown
July 2019
What is needed to get a temporary injunction in VA?
(1) No adequate remedy at law; (2) likelihood of success on the merits; (3) balance of hardhsips favors party seeking injunction; and (4) public interest is in favor of an injunction
Feb 2019
If a temporary injunction is granted, what is required and why?
Prevailing party posts a bond to protect other party if, on a trial on the merits, court determines injunction should not have been granted
Feb 2019
How is liability for negligent entrustment of a vehicle shown?
Must show that the owner knew, or had reason to know, that he was entrusting an instrumentality (vehicle) to an unfit driver likely to cause injury to others
* Also must show negligent entrustment to tortfeasor was proximate cause of the accident
July 2020
What is the “family purpose doctrine” and what is its significance in Virginia?
A theory of vicarious liability for a family member’s negligent operation of an automobile solely by virtue of the family relationship, and it is REJECTED in VA
July 2021
When is a plaintiff contributorily negligent?
When a plaintiff’s injury is proximately caused by ANY of her own negligence
* VA is PURE contributory negligence JX
July 2021
What is Virginia’s rule on child negligence?
A child between the ages of 7 and 14 is presumed not to have capacity to understand and appreciate peril and dangers of his acts and is legally incapable of committing acts of negligence
* Rebut by showing child understood and appreciate dangers of his acts/peril
July 2021
What is the standard of care of a child in Virginia?
Held the standard of care of children of like age, knowledge, understanding, and experience
July 2021
What is the defense of assumption of the risk?
A complete bar where D can show P understood and appreciated a risk, yet knowingly and voluntarily accepted the risk presented
* Subjective inquiry–did P knowingly and voluntarily face the risk?
July 2021
Who are the statutory beneficiaries in a wrongful death case?
(1) Surviving spouse, children, grandchildren
(2) No SS–children/grandchildren, then (2.5) to parents and siblings
(3) No children or grandchildren, to SS and parents
Describe the importance of failure to mitigate damages
In VA, a plaintiff has a duty to mitigate damages in a personal injury aciton by submitting to a reasonable medical treatment, and failure to do so may affect recovery (i.e., can’t recover for those damages incurred as a result of failure to mitigate)
