Virginia Torts Flashcards
Burden of Persuasion: Conversion
The Plaintiff’s burden of persuasion in this type of action is a preponderance of the evidence
This negligence liability standard in Virginia generally bars recovery in this scenario
Plaintiffs that are contributorily negligent are barred from recovery generally
“Last Clear Chance” doctrine provides for this exception to contributory negligence liability
A Plaintiff may mitigate legal consequence for contributory negligence under this doctrine if the Defendant had 1) the last opportunity to avoid injuring the Plaintiff; and 2) failed to do so
When must an action for personal injuries be brought, generally?
An action for this must generally be brought within two years after the cause of action accrues
When does the statute of limitations begin to run for a personal injury action?
The statute of limitations begins for this action when the cause of action accrues, regardless of when it is discovered
When does a cause of action for a medical malpractice claim with continuous treatment accrue?
The cause of action for this type of claim accrues when the improper course of examination (monitoring condition) terminates, following a failure in diagnosis
How long does a minor under 8 years of age have to bring a medical malpractice action against a healthcare provider?
This type of person has until age 10 to bring a medical malpractice action
How long does a minor at least 8 years of age have to bring a medical malpractice action against a healthcare provider?
This type of person must bring the claim within two years of the last act or omission giving rise to the cause of the medical malpractice action
Generally, a wrongful death action must be brought:
Generally, this must be brought 1) by the personal representative of the decedent’s estate 2) within 2 years of decedent’s death
A wrongful death action cannot be brought if:
This cannot be brought if 1)the decedent did not die within two years from the date of injury and 2) no personal injury action was filed
Medical malpractice actions occurring from July 1 2016 to June 30 2017 may not exceed, or increment $50k per year to this amount for actions occurring afterward:
$2.25 for this type of action occurring in this time frame; or $3 after increasing $50k per year until 2031
A medical malpractice review panel may be requested and is what at trial?
This is an extra procedural step requested within 30 days of responsive pleadings for medical malpractice actions, and may be admissible but not conclusive as evidence
A child below age seven, but not between seven and fourteen, has what kind of presumption for negligence?
There is an irrebuttable presumption of being incapable of negligence below this age, but a rebuttable presumption between these ages for a child
Intentional torts generally require what?
This generally requires 1)voluntary act/failure to act; 2) purposeful requisite mental state/consequence is substantially certain to D; and 3) causation, or resulting in harm legally from D’s conduct
Battery
This occurs where Defendant intends to cause contact with Plaintiff’s person/anything connected, conduct causes contact, and contact causes bodily harm or is offensive
Battery: Single vs. Double Intent
Majority - D is liable if intending to bring about contact; Minority - D is liable if intending to bring contact AND intend the contact to by harmful/offensive
Battery: Conduct
This for battery must be voluntary and affirmative, and even indirect this counts
Battery: Contact
Harmful - Physical injury, illness, disease, impairment, death
Offensive - Reasonable-person standard/D knows that this is highly offensive to P’s sense of dignity
Assault
This occurs when D intends to cause P to anticipate imminent, harmful & offensive contact, and D’s affirmative conduct causes the anticipation
Assault: Anticipated contact
No actual contact is required for this, but it must be harmful or offensive; P must be aware of D’s actions
Assault: Imminence
If a P is too far away from D’s threat of future harm or threats, this may not be met
Assault and Battery: Intent Transferal
These are subject to transferred intent
Intentional Infliction of Emotional Distress (IIED)
This requires that D, by 1) extreme and outrageous conduct 2) intentionally/recklessly causes 3) P severe emotional distress
IIED: Transferred Intent
This typically does not apply to IIED where D intended to commit a different tort; may apply if D’s conduct harms another rather than the intended
IIED: Extreme and Outrageous Conduct
This is considered beyond human decency, outrageous
IIED: Public figures/concerns
These people must show falsity and actual malice; Private P cannot recover if issue was of public concern
IIED: Burden
Must be by Clear and Convincing Evidence
False Imprisonment
Illegal restraint on another’s freedom; P demonstrates prima facie case, D must show restraint was legal/justified
Defenses to Intentional Torts for PI: Consent
D is not liable if P gave legally effective consent (actual, apparent, implied, emergency)
Defenses to Intentional Torts for PI: Self Defense
Must reasonably believe that the force is necessary and proportionate to what is infliicted
Defenses to Intentional Torts for PI: Self Defense (Nondeadly)
D reasonably believes P’s force is intentional and unpriveleged, D’s force is proportional, and D can only prevent P through immediate force
Defenses to Intentional Torts for PI: Self Defense (Deadly)
D can only prevail by immediate deadly force
Standard of Care owed to invitees is this:
Landowner or land possessor is liable for injuries if landowner or land possessor should have known that invitee would not realize/appreciate the danger; No duty or protect invitee from open and obvious dangers; Duty extends only so far as the scope of the invitation
Standard of Care owed to Trespassers is this:
No duty to unknown trespasser, no attractive nusiance doctrine in VA. Liable for leaving an instrument with a hidden danger on the part of her land that is easily accessible to children and that is known to be frequented by children (eg; live wires)/ intentional/affirmative harm
Standard of Care owed to Licensees is this:
Landowner/land possessor has duty to carry on activities w/reasonable care for safety of the licenses.
L will be liable for harm caused by failure to use reasonable care unless licensee should have known the risk
Negligence Standard of Care for Children is this:
Irrebutable presumption (just a rule) that a child under the age of 7 is incapable of negligence
Rebuttable presumption that a child between the ages of 7-14 is legally incapable of negligence
Negligence Standard of Care for Children (Rebuttable) looks to these:
For child between 7-14, evidence must show what reasonable person of same age, experience, and intelligence as the child would do under circumstances for safety
Statute of Repose
No action to recover for injury from defective/unsafe condition of improvement to real property, nor contribution action for damages sustained, may be brought more than 5 years after furnishing such services
Direct Liability for Negligent Entrustment of Vehicle
Parent is directly liable if proven to know, or had reason to know, that she was entrusting vehicle to unfit driver likely to cause injury to others; may be done through express or implied permission.
Assumption of risk defense requires:
Defendant must prove plaintiff fully understood and appreciate a known danger and voluntarily expose themself to it
Trespass to Chattels:
Intentional interference w/ P’s right of possession by either dispossessing or using/intermeddling with chattel
Trespass the Chattels: Whats required?
This tort only requires intent to do the act necessary, transferred intent applies
Trespass to Chattels Damages:
Actual/loss of use (only if dispossessed)/nominal damages/compensation for diminished value or cost to repair
Conversion:
1) Intentional Act 2) to interfere with P’s right of possession 3) that’s so serious that it deprives P of the use of chattel; 4) damages
Trespass to Land:
1) Intent to 2) physical invasion of property
Trespass to Land: Proper Plaintiff
This is any actual or constructive owner; transferred intent applies
Trespass to Land: Private Necessity
This defense is a qualified privilege for limited # of people to enter/remain on land to protect from serious harm; not liable for this, but responsible for actual damages
Trespass to Land: Public Nuisance
This defense is an unqualified/absolute privilege to avert imminent public disaster; not liable for damages if acted reasonably or believed necessary
Private Nuisance
This is 1) substantial (offensive to regular person in community); 2)unreasonable; 3) interference (intentional/negligent reckless/abnormally dangerous); 4) with another’s use or enjoyment of their land
Nuisance: Unreasonable Element
This element of nuisance may: 1) effectively render land unavailable for ordinary use; 2) is per se nuisance; 3) does not comport w/ customs/expectations; 4) results from failure to use reasonable care; 5) causes physical damage to land/fixtures; or 6) motivated by malice
Private Nuisance: Defenses
1) Regulatory compliance: incomplete defense; admissible but not determinative; 2) Coming to the nuisance: does not entitle Defendant to judgment as a matter of law but jury may consider
Public Nuisance
1) Unreasonable; 2) interference; 3) with right common; 4) to general public;
Same defenses as private
Private Nuisance: Abatement
Reasonable force permitted to do this; must give Defendant notice of nuisance and they refuse to act
Public Nuisance: Proper Plaintiff
This is a private citizen suffering harm different in kind from the general public
Public Nuisance: Abatement
Absent unique injury, public nuisance may only be this by public authority
Negligence
1) Duty (obligation to protect against unreasonable risk of injury); 2) Breach (failure to meet obligation); 3) Causation (close causal nexus); 4) Injury (harm suffered)
Negligence: Duty
Owed to all foreseeable persons if P fails to meet standard of care; foreseeability of harm to another sufficient to create this
Negligence: Failure to act
Generally, no duty to act for this
Negligence: Special foreseeable plaintiffs (rescuer/rescued party)
Defendant is liable for negligently putting these in danger
Negligence: Foreseeable harm
Defendant only liable to Plaintiff w/in zone of foreseeable harm
Negligence Duty to Fetuses
Duty of care is owed to these that are viable at time of injury
Negligence: Affirmative Duties to Act
These are exceptions to this: 1) Assumption of Duty; 2) Placing another in peril; 3) by contract; 4) by authority (negligent hiring & retention, not supervision); 5) by relationship (employer/employee, parent-child); 6) by statute imposing obligation to act
Good Samaritan Law (Generally)
1) Emergency care; 2) in good faith; 3) without compensation
Good Samaritan Law: Includes
Emergency obstetrical care when women’s records unavailable (unless grossly negligent)
Emergency assistance to injured animals at scene
Good Samaritan Law: Emergency Personnel
This law protects EMTS operating emergency vehicle en route to emergency when 1) comply w/ warning lights/siren laws; and 2) act w/out gross negligence/willful/wanton misconduct
Standard of Care: Common Carriers and Innkeepers
Common carriers/innkeepers have duty to exercise utmost care to protect customers/guests from personal injury; Have duty to warn and protect customers/guests from foreseeable injury from criminal conduct of 3rd party
Standard of Care: Generally
This is: a reasonably prudent person
Standard of Care: Voluntarily Intoxicated
This is: the same standard as a sober person
Standard of Care: Automobile drivers
This is: ordinary care to guests as well as passengers
Standard of Care: Gratuitous Bailor
This is: Duty to warn baillee of known dangerous defects
Standard of Care: Compensated Bailor
Duty to warn bailee of defects known/should have known by this person if reasonable diligence used
Standard of Care: Gratuitous Bailee
Liable only for gross negligence
Standard of Care: Compensated Bailee
Must exercise extraordinary care
Standard of Care: Mutual benefit Bailee
Must take reasonable care
Standard of Care: Sellers of Real Prop
Duty to dislose known/concealed/unreasonably dangerous conditions; liability to 3rd party continues until buyer has reasonable opportunity to discover & remedy defect
Standard for Possessors of Land: Discovered Trespasser
Duty to warn or protect against concealed/dangerous/artificial conditions for this:
Standard for Possessors of Land: Undiscovered Trespasser
Generally no duty; Only if owner should reasonably know trespasser entering land (treated like licensee)
Standard for Possessors of Land: Invitee
Duty of reasonable care to inspect/discover dangerous condition, protect invitee from them (non-delegable); does not extend beyond scope of invitation
Standard for Possessors of Land: Landlords
Liable for injuries in common areas from hidden dangers L failed to warn; on premises leased for public use; as result of hazard caused by negligent repair/landlord agreed to repair
Standard for Possessors of Land: Tenants
Liable for injuries to 3rd parties due to conditions w/in their control
Standard for Possessors of Land: Off-premises victims
No duty for harm by natural condition; duty to prevent unreasonable risk of harm by artificial condition
Standard for Possessors of Land: Sellers of real property
These people have a duty to disclose any concealed and unreasonably dangerous conditions
Standard of care traditional approach is:
This compares D’s conduct to what a reasonably prudent person would do under the circumstances
Standard of care modern/restatement approach (cost benefit) is:
This considers 1) foreseeable likelihood that D’s conduct would cause harm, 2) foreseeable severity resulting from harm, and 3) D’s burden in avoiding harm
Evidence of custom may be admitted as this:
This may be admissible generally but is not conclusive in establishing proper standard of care
Professional standard of care is:
This requires individual to show same skill/knowledge/care as ordinary practitioner in same community; specialists held to higher standard; must be established by them unless negligence obvious to lay person
Virginia’s physician standard of care is:
These are held to the same standard as others in Virginia, a locality standard can be applied if shown to be more appropriate
Failure to comply with informed consent results in this unless:
Failure to comply with this is medical negligence unless risk is known, patient unconscious, patient waives/is incompetent, or disclosure is too harmful
For negligence per se (statutorily defined/specific) in Virginia:
For this, P must prove D violated public safety statute and that violation was proximate cause of injury
Defenses to negligence per se include:
These include compliance impossible/more dangerous than noncompliance, violation was reasonable under circumstances, statutory vagueness/ambiguity, or compliance w/ federal regulation preempts common-law tort
To prove res ipsa loquitur in Virginia:
To do this, P must prove 1) exclusive possession/management of instrumentality by D, 2) accident ordinarily does not occur if due care used, and 3) evidence regarding cause of accident is available to defendant and not injured party
For causation, Virginia follows the 3rd Restatement which means:
This means there is no substantial factor test; where there are several causes contributing to P’s injury, each alone would be factual cause of {‘s injury
Tortfeasors face joint and several liability but:
These have a right to contribution if liability arises from 1) negligence and 2) does not involve act of moral turpitude
Loss of chance recovery arises in wrongful death suits if:
This type of recovery is a percentage between recovery before and after negligence; if physician destroyed substantial chance patient would survive, conduct is a proximate cause of patient’s death
An action is the proximate cause of an injury in Virginia if:
An action is this if the injury is the natural and probable consequence of the act, and foreseeable
To be a superseding cause in Virginia:
For this to occur, the intervening cause must completely supersede the Defendant’s actions so that the intervening cause alone produced injury
Superseding cause does this:
This breaks the chain of proximate causation so that D is not liable
Intervening cause does this:
This is just a cause of P’s harm that occurs after D’s tortious acts, with D still liable
Egg-shell plaintiff rule:
Think of a thin skinned person - the extent of damages need not be forseeable
Virginia follows the traditional collateral source:
For this in Virginia, benefits from outside sources like P’s insurance are not credited against’ D’s liability, but D’s insurance is considered this and ARE credited against D’s liability
Compensatory damages
These damages make the victim whole
Actual physical harm
This requires proving actual injury (bodily harm/property damage), not just economic loss; nominal damages/attorney’s fees not permitted for negligence
Duty to mitigate:
This is not a duty to D, but may reduce P’s recovery as they must attempt to do this to their damages
July 1, 2017 onward, increasing $50k each year till 2031 from $2.25 is:
This is the total negligence damages limit
Punitive damages available if D acted:
These are available if acted with actual malice/under circumstances amounting to willful/wanton disregard of P’s rights; employer may be liable for these if participated in/authorized/ratified employee conduct
Traditional contributory negligence in Virginia completely bars P’s recovery if:
This bars P’s recovery if P’s negligence was substantial cause of injury & must happen at same time as D’s negligence
P’s contributory negligence does not bar recovery if:
This DOES NOT bar recovery if 1) P placed himself in peril and cannot escape, 2) D saw and realized/should have seen & realized peril, and 3) D could have avoided the accident using ordinary care
This is a complete bar to recovery for D’s alleged negligence in causing injury
The voluntary assumption of risk of injury from a known danger is this:
Contract provisions that purport to release D from liability for personal injury caused by D’s future negligence are this:
These contract provisions for D’s liability are prohibited
Release from liability for property damage caused by D’s future negligence are this:
These contract provisions for D’s liability are enforceable
Land possessors have duty to exercise reasonable care and take reasonable precautions to protect whom?
Land possessors hold these duties to invitee spectators from foreseeable dangers created by events held on property
Elements of Strict Liability (and include types DAD):
This action is 1) absolute duty to make P’s person/property safe, 2) actual & proximate causation, and 3) damages; Dangerous activities, animals, defective/dangerous products
NO S/L for dog owners but for these, violation constitutes negligence per se:
For dangerous dogs (dangerous after hearing) Virginia recognizes this; must be securely enclosed and be muzzled&leashed when our or violation
Defenses to S/L (mainly only one)
For this, contributory negligence is not available but assumption of risk does bar recovery; no S/L for D performing essential public services, nor for injuries caused by D’s animals to trespasser on his property
