VA Torts Flashcards
Duty to Warn
When does VA law require a passenger to warn the driver?
when it is clear that the driver is taking no precaution for the passengers’ safety and/or that there is a dangerous condition.
When will someone be liable in VA for negligent entrustment of their vehicle?
If they knew or had reason to know that they were entrusting their vehicle to unfit drive who is likley to cause injury to another person.
express or implied permission
What is the family purpose doctrine and does VA employ it?
- it is the doctrine that hold’s the owner of a vehicle liable for the negligence of a family member who they let drive the car (vicarious liability)
- Virginia rejects the doctrine, but permits direct liability for negligent entrustment
Does Virginia permit the defense of contributory negligence?
Yes, it is a total bar to recovery if the plaintiff if the D shows two things:
(1) the plainff’s negligence is a substantial cuase of the plaintiff’s injury; and
(2) the plaintiff’s negligence occurs at the same time as the defendant’s negligence.
Can children be liable in negligence?
It depends.
There is an irrebutable presumption that children under the age of 7 are incapable of negligence
Children between the age of 7 and 14 have a rebuttable presumption that they are legally incapable of negligence because they lack the capacity to understand the dangers of whatever he or she is doing.
Standard of care for a child? for contributory negligence?
- a reasonable person of like age, intelligence, and experience would do under the circumstances
- for his own safety and protection.
rebut the presumption, then prove negligence. Breach of standard of care that proximately caused the injury.
What is assumption of risk and what must the D prove?
- A total bar to recovery
- the defendant must prove that the plaintiff fully understood and appreciated a known danger (subjective) and voluntarily exposed himself to it.
Doctrine of respondeat superior?
Under the doctrine of respondeat superior, an employer is liable for the torts of his employee that are committed within the scope of employment. An employee is an agent whose principal controls, or has the right to control, the manner and means of how the job is performed. Additionally, an act is within the scope of the employment if “(1) it was expressly or impliedly directed by the employer, or is naturally incident to the business, and (2) it was performed, although mistakenly or ill-advisedly, with the intent to further the employer’s interest, or from some impulse or emotion that was the natural consequence of an attempt to do the employer’s business, ‘and did not arise wholly from some external, independent, and personal motive on the part of the [employee] to do the act upon his own account.’”
Typically courts are reluctant to find that an intentional tort is within scope of employement, but it can be (e.g., bouncer)
Landowner/land possessor duty to invitees?
Invitees are owed a duty of reasonable care while within the scope of the invitation. The duty is generally satisfied by warning of dangerous conditions (should have known), but there is no duty warn of open and obvious dangers.
How does someone establish negligence per se, which is essentially strict liability, in VA?
To establish a claim based on negligence per se, which is essentially a strict liability claim, a plaintiff must (1) prove that the defendant violated a statute that was enacted for public safety, (2) establish that he belongs to the class of persons for whose benefit the statute was enacted, and (3) prove that the statutory violation was a proximate cause of his injury.
It is a misdemeanor in VA for a seller of intoxicant to dispense alcoholic beverages to an intoxicated person. Does this mean that a violation is negligence per se if the intoxicated person injures someone?
The Supreme Court of Virginia has held that the sale of alcoholic beverages is not the proximate cause of later acts committed by purchaser, and thus, Virginia does not recognize a claim against the seller of alcohol in circumstances such as these
Can the supplier of alcohol be liable under a regular negligence theory?
The Supreme Court of Virginia 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 injured a third party. Williamson v. The Old Brogue, Inc. 232 Va. 350 [1986]. The Court reasoned that individuals are responsible for their own torts and that supplying the alcohol was not the proximate cause of the injury. Id. (reaffirmed in Robinson 259 Va. 412.)
What is a private nuisance action?
Private nuisance requires an action that unreasonably interferes with the use and enjoyment of plaintiff’s land in a way unique to the plaintiff rather than to the citizens at large.
What is the remedy for a private nuisance?
A permanent injunction
see VA Civ Pro for what you need to prove to get one
When faced with a franchise question that asks whether a franchise agreement has created an agency relationship (master-servant), what should you consider?
Consider all of the provisions listed in the franchise agreement and determine whether there is sufficient control to establish agency. Was there control over day-to-day?
