VA Torts Flashcards
Does VA follow attractive nuisance doctrine? If not, what do they have if anything?
The attractive nuisance doctrine has been repudiated in Virginia, but
a landowner may be held liable for:
- (i) leaving an instrument with a (ii) hidden (iii) danger
- (iv) on an area of his property
- (v) that is easily accessible to children and
- (vi) known to be frequented by children.
Washabaugh v. N. Va. Const. Co., 48 S.E.2d 276 (Va. 1948) (citing cases in which landowners were found to be negligent for leaving a live uninsulated electrical wire, explosives, and gasoline).
Duties owed to invitees
In Virginia, a possessor of land will be liable to an invitee for injuries caused by the land if:
(i) he should have realized (ii) the invitee would not realize or appreciate the danger.
A land possessor has no duty to protect an invitee from open and obvious dangers. Tate v. Rice, 315 S.E.2d 385 (Va. 1984).
The possessor’s duty to the invitee extends only through the scope of the invitation. Suffolk v. Hewitt, 307 S.E.2d 444 (Va. 1983).
Negligence per se
To establish negligence per se, the plaintiff must prove that:
(i) the defendant violated a statute that was enacted for public safety,
(ii) the plaintiff belongs to the class of persons for whose benefit the statute was enacted, and
(iii) the statutory violation was a proximate cause of her injury.
* Robinson v. Matt Mary Moran, Inc.*, 525 S.E.2d 559 (Va. 2000).
A violation of statutory provisions that prohibit the sale of alcoholic beverages to individuals under age 21 and to intoxicated individuals does not trigger negligence per se because the violation is not the proximate cause of an injury inflicted by the underage or intoxicated individual. Id.
Res Ipsa Loquitor
(i) instrumentality causing the damage was in the exclusive possession/management of D
(ii) accident was of a kind that doesn’t ordinarily occur if due care is used
(iii) the evidence regarding cause accessible to D and unaccessible to P
* Lewis v. Carpenter*
When does loss of chance of recovery apply in VA?
In Virginia, loss of chance of recovery arises in wrongful death suits.
If a physician destroyed any substantial chance the patient could survive, his conduct is a proximate cause of the patient’s death.
Blondel v. Hays, 403 S.E.2d 340 (Va. 1991).
Virginia Distinction: Proximate Cause
In Virginia, an action will be the proximate cause of an injury if the injury is the natural and probable consequence of the act, and was foreseeable. Scott v. Simms, 51 S.E.2d 250 (Va. 1949).
Virginia Point of Law: Superseding Causes
To be superseding, an intervening cause must completely supersede the defendant’s actions, so that the intervening cause alone produced the injury, without the defendant’s contributing negligence. Scott v. Simms, 51 S.E.2d 250 (Va. 1949).
Virginia Point of Law: Punitive Damages
available if the defendant acted with either:
- (i) actual malice or
- (ii) under circumstances amounting to a willful and wanton disregard of a plaintiff’s rights.
Virginia limits punitive damages to $350,000. Va. Code Ann. § 8.01-38.1.
When an employer is vicariously liable for the conduct of an employee, the employer may be liable for punitive damages if the employer participated in, or authorized, or ratified the employee’s conduct. Hogg v. Plant, 133 S.E. 759 (Va. 1926).
Virginia Tort Claims Act
limits the liability of a Commonwealth employee acting within the scope of employment that caused damage to or loss of (i) property or (ii) personal injury or (iii) death of a plaintiff.
The plaintiff’s recovery of damages is limited to the greater of (i) $100,000 or (ii) the maximum limits of any applicable insurance policy. Va. Code Ann. § 8.01-195.3.
Virginia Distinction: Public Duty Rule applied to officials
Virginia recognizes the public duty doctrine, but primarily finds that public officials are sufficiently protected by the Virginia sovereign immunity doctrine.
Only when (i) a public official owes a special duty to control the behavior of a third party, and the (ii) third party commits acts of assaultive criminal behavior upon another, can the public official be liable to the victim. Commonwealth v. Burns, 639 S.E.2d 276, 278 (Va. 2007).
- For example, a deputy sheriff witnessed a violent attack by a frequent law violator on a law-abiding resident—both of whom the deputy sheriff knew—that threatened serious bodily injury to the law-abiding resident. The sheriff’s failure to come to the aid of law-abiding resident despite being requested by the resident to do so gave rise to a cause of action against the deputy sheriff because of the special relationship between the victim and the deputy sheriff that arose from the situation. Burdette v. Marks, 421 S.E.2d 419 (Va.1992)
VA has removed parental immunity for:
(i) intentional torts and (ii) motor vehicle accidents
Virginia Distinction: Spectators
When spectators attend events on the implied or express invitation of a possessor of land, the possessor has a duty to exercise reasonable care to protect the invitees’ safety.
- The possessor must take reasonable precautions to protect the invitees from the foreseeable dangers that arise from the enterprise that is undertaken on the land. Atl. Rural Exposition, Inc. v. Fagan, 77 S.E.2d 368 (Va. 1953).
Statute of limitations for fraud
If money damages are sought: 2 yrs
otherwise (equitable relief): none, laches governs
Burden of proof for fraud
Clear and convincing evidence
When is the award of attorney’s fees allowed?
Virginia permits, at the discretion of the court, the award of attorney’s fee to a successful litigant in a fraud action. Prospect Dev. Co. v. Bershader, 515 S.E.2d 291 (Va. 1999).
