Virginia Torts

Question 1

Burden of Persuasion: Conversion

Answer 1

The Plaintiff’s burden of persuasion in this type of action is a preponderance of the evidence

Question 2

This negligence liability standard in Virginia generally bars recovery in this scenario

Answer 2

Plaintiffs that are contributorily negligent are barred from recovery generally

Question 3

“Last Clear Chance” doctrine provides for this exception to contributory negligence liability

Answer 3

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

Question 4

When must an action for personal injuries be brought, generally?

Answer 4

An action for this must generally be brought within two years after the cause of action accrues

Question 5

When does the statute of limitations begin to run for a personal injury action?

Answer 5

The statute of limitations begins for this action when the cause of action accrues, regardless of when it is discovered

Question 6

When does a cause of action for a medical malpractice claim with continuous treatment accrue?

Answer 6

The cause of action for this type of claim accrues when the improper course of examination (monitoring condition) terminates, following a failure in diagnosis

Question 7

How long does a minor under 8 years of age have to bring a medical malpractice action against a healthcare provider?

Answer 7

This type of person has until age 10 to bring a medical malpractice action

Question 8

How long does a minor at least 8 years of age have to bring a medical malpractice action against a healthcare provider?

Answer 8

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

Question 9

Generally, a wrongful death action must be brought:

Answer 9

Generally, this must be brought 1) by the personal representative of the decedent’s estate 2) within 2 years of decedent’s death

Question 10

A wrongful death action cannot be brought if:

Answer 10

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

Question 11

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:

Answer 11

$2.25 for this type of action occurring in this time frame; or $3 after increasing $50k per year until 2031

Question 12

A medical malpractice review panel may be requested and is what at trial?

Answer 12

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

Question 13

A child below age seven, but not between seven and fourteen, has what kind of presumption for negligence?

Answer 13

There is an irrebuttable presumption of being incapable of negligence below this age, but a rebuttable presumption between these ages for a child

Question 14

Intentional torts generally require what?

Answer 14

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

Question 15

Battery

Answer 15

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

Question 16

Battery: Single vs. Double Intent

Answer 16

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

Question 17

Battery: Conduct

Answer 17

This for battery must be voluntary and affirmative, and even indirect this counts

Question 18

Battery: Contact

Answer 18

Harmful - Physical injury, illness, disease, impairment, death

Question 19

Offensive - Reasonable-person standard/D knows that this is highly offensive to P’s sense of dignity

Question 20

Assault

Answer 20

This occurs when D intends to cause P to anticipate imminent, harmful & offensive contact, and D’s affirmative conduct causes the anticipation

Question 21

Assault: Anticipated contact

Answer 21

No actual contact is required for this, but it must be harmful or offensive; P must be aware of D’s actions

Question 22

Assault: Imminence

Answer 22

If a P is too far away from D’s threat of future harm or threats, this may not be met

Question 23

Assault and Battery: Intent Transferal

Answer 23

These are subject to transferred intent

Question 24

Intentional Infliction of Emotional Distress (IIED)

Answer 24

This requires that D, by 1) extreme and outrageous conduct 2) intentionally/recklessly causes 3) P severe emotional distress

Question 25

IIED: Transferred Intent

Answer 25

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

Question 26

IIED: Extreme and Outrageous Conduct

Answer 26

This is considered beyond human decency, outrageous

Question 27

IIED: Public figures/concerns

Answer 27

These people must show falsity and actual malice; Private P cannot recover if issue was of public concern

Question 28

IIED: Burden

Answer 28

Must be by Clear and Convincing Evidence

Question 29

False Imprisonment

Answer 29

Illegal restraint on another's freedom; P demonstrates prima facie case, D must show restraint was legal/justified

Question 30

Defenses to Intentional Torts for PI: Consent

Answer 30

D is not liable if P gave legally effective consent (actual, apparent, implied, emergency)

Question 31

Defenses to Intentional Torts for PI: Self Defense

Answer 31

Must reasonably believe that the force is necessary and proportionate to what is infliicted

Question 32

Defenses to Intentional Torts for PI: Self Defense (Nondeadly)

Answer 32

D reasonably believes P's force is intentional and unpriveleged, D's force is proportional, and D can only prevent P through immediate force

Question 33

Defenses to Intentional Torts for PI: Self Defense (Deadly)

Answer 33

D can only prevail by immediate deadly force

Question 34

Standard of Care owed to invitees is this:

Answer 34

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

Question 35

Standard of Care owed to Trespassers is this:

Answer 35

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

Question 36

Standard of Care owed to Licensees is this:

Answer 36

Landowner/land possessor has duty to carry on activities w/reasonable care for safety of the licenses.

Question 37

L will be liable for harm caused by failure to use reasonable care unless licensee should have known the risk

Question 38

Negligence Standard of Care for Children is this:

Answer 38

Irrebutable presumption (just a rule) that a child under the age of 7 is incapable of negligence

Question 39

Rebuttable presumption that a child between the ages of 7-14 is legally incapable of negligence

Question 40

Negligence Standard of Care for Children (Rebuttable) looks to these:

Answer 40

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

Question 41

Statute of Repose

Answer 41

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

Question 42

Direct Liability for Negligent Entrustment of Vehicle

Answer 42

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.

Question 43

Assumption of risk defense requires:

Answer 43

Defendant must prove plaintiff fully understood and appreciate a known danger and voluntarily expose themself to it

Question 44

Trespass to Chattels:

Answer 44

Intentional interference w/ P's right of possession by either dispossessing or using/intermeddling with chattel

Question 45

Trespass the Chattels: Whats required?

Answer 45

This tort only requires intent to do the act necessary, transferred intent applies

Question 46

Trespass to Chattels Damages:

Answer 46

Actual/loss of use (only if dispossessed)/nominal damages/compensation for diminished value or cost to repair

Question 47

Conversion:

Answer 47

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

Question 48

Trespass to Land:

Answer 48

1) Intent to 2) physical invasion of property

Question 49

Trespass to Land: Proper Plaintiff

Answer 49

This is any actual or constructive owner; transferred intent applies

Question 50

Trespass to Land: Private Necessity

Answer 50

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

Question 51

Trespass to Land: Public Nuisance

Answer 51

This defense is an unqualified/absolute privilege to avert imminent public disaster; not liable for damages if acted reasonably or believed necessary

Question 52

Private Nuisance

Answer 52

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

Question 53

Nuisance: Unreasonable Element

Answer 53

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

Question 54

Private Nuisance: Defenses

Answer 54

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

Question 55

Public Nuisance

Answer 55

1) Unreasonable; 2) interference; 3) with right common; 4) to general public;

Question 56

Same defenses as private

Question 57

Private Nuisance: Abatement

Answer 57

Reasonable force permitted to do this; must give Defendant notice of nuisance and they refuse to act

Question 58

Public Nuisance: Proper Plaintiff

Answer 58

This is a private citizen suffering harm different in kind from the general public

Question 59

Public Nuisance: Abatement

Answer 59

Absent unique injury, public nuisance may only be this by public authority

Question 60

Negligence

Answer 60

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)

Question 61

Negligence: Duty

Answer 61

Owed to all foreseeable persons if P fails to meet standard of care; foreseeability of harm to another sufficient to create this

Question 62

Negligence: Failure to act

Answer 62

Generally, no duty to act for this

Question 63

Negligence: Special foreseeable plaintiffs (rescuer/rescued party)

Answer 63

Defendant is liable for negligently putting these in danger

Question 64

Negligence: Foreseeable harm

Answer 64

Defendant only liable to Plaintiff w/in zone of foreseeable harm

Question 65

Negligence Duty to Fetuses

Answer 65

Duty of care is owed to these that are viable at time of injury

Question 66

Negligence: Affirmative Duties to Act

Answer 66

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

Question 67

Good Samaritan Law (Generally)

Answer 67

1) Emergency care; 2) in good faith; 3) without compensation

Question 68

Good Samaritan Law: Includes

Answer 68

Emergency obstetrical care when women's records unavailable (unless grossly negligent)

Question 69

Emergency assistance to injured animals at scene

Question 70

Good Samaritan Law: Emergency Personnel

Answer 70

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

Question 71

Standard of Care: Common Carriers and Innkeepers

Answer 71

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

Question 72

Standard of Care: Generally

Answer 72

This is: a reasonably prudent person

Question 73

Standard of Care: Voluntarily Intoxicated

Answer 73

This is: the same standard as a sober person

Question 74

Standard of Care: Automobile drivers

Answer 74

This is: ordinary care to guests as well as passengers

Question 75

Standard of Care: Gratuitous Bailor

Answer 75

This is: Duty to warn baillee of known dangerous defects

Question 76

Standard of Care: Compensated Bailor

Answer 76

Duty to warn bailee of defects known/should have known by this person if reasonable diligence had been used

Question 77

Standard of Care: Gratuitous Bailee

Answer 77

Liable only for gross negligence

Question 78

Standard of Care: Compensated Bailee

Answer 78

Must exercise extraordinary care

Question 79

Standard of Care: Mutual benefit Bailee

Answer 79

Must take reasonable care

Question 80

Standard of Care: Sellers of Real Prop

Answer 80

Duty to dislose known/concealed/unreasonably dangerous conditions; liability to 3rd party continues until buyer has reasonable opportunity to discover & remedy defect

Question 81

Standard for Possessors of Land: Discovered Trespasser

Answer 81

Duty to warn or protect against concealed/dangerous/artificial conditions for this:

Question 82

Standard for Possessors of Land: Undiscovered Trespasser

Answer 82

Generally no duty; Only if owner should reasonably know trespasser entering land (treated like licensee)

Question 83

Standard for Possessors of Land: Invitee

Answer 83

Duty of reasonable care to inspect/discover dangerous condition, protect invitee from them (non-delegable); does not extend beyond scope of invitation

Question 84

Standard for Possessors of Land: Landlords

Answer 84

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

Question 85

Standard for Possessors of Land: Tenants

Answer 85

Liable for injuries to 3rd parties due to conditions w/in their control

Question 86

Standard for Possessors of Land: Off-premises victims

Answer 86

No duty for harm by natural condition; duty to prevent unreasonable risk of harm by artificial condition

Question 87

Standard for Possessors of Land: Sellers of real property

Answer 87

These people have a duty to disclose any concealed and unreasonably dangerous conditions

Question 88

Standard of care traditional approach is:

Answer 88

This compares D's conduct to what a reasonably prudent person would do under the circumstances

Question 89

Standard of care modern/restatement approach (cost benefit) is:

Answer 89

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

Question 90

Evidence of custom may be admitted as this:

Answer 90

This may be admissible generally but is not conclusive in establishing proper standard of care

Question 91

Professional standard of care is:

Answer 91

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

Question 92

Virginia's physician standard of care is:

Answer 92

These are held to the same standard as others in Virginia, a locality standard can be applied if shown to be more appropriate

Question 93

Failure to comply with informed consent results in this unless:

Answer 93

Failure to comply with this is medical negligence unless risk is known, patient unconscious, patient waives/is incompetent, or disclosure is too harmful

Question 94

For negligence per se (statutorily defined/specific) in Virginia:

Answer 94

For this, P must prove D violated public safety statute and that violation was proximate cause of injury

Question 95

Defenses to negligence per se include:

Answer 95

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

Question 96

To prove res ipsa loquitur in Virginia:

Answer 96

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

Question 97

For causation, Virginia follows the 3rd Restatement which means:

Answer 97

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

Question 98

Tortfeasors face joint and several liability but:

Answer 98

These have a right to contribution if liability arises from 1) negligence and 2) does not involve act of moral turpitude

Question 99

Loss of chance recovery arises in wrongful death suits if:

Answer 99

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

Question 100

An action is the proximate cause of an injury in Virginia if:

Answer 100

An action is this if the injury is the natural and probable consequence of the act, and foreseeable

Question 101

To be a superseding cause in Virginia:

Answer 101

For this to occur, the intervening cause must completely supersede the Defendant's actions so that the intervening cause alone produced injury

Question 102

Superseding cause does this:

Answer 102

This breaks the chain of proximate causation so that D is not liable

Question 103

Intervening cause does this:

Answer 103

This is just a cause of P's harm that occurs after D's tortious acts, with D still liable

Question 104

Egg-shell plaintiff rule:

Answer 104

Think of a thin skinned person - the extent of damages need not be forseeable

Question 105

Virginia follows the traditional collateral source:

Answer 105

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

Question 106

Compensatory damages

Answer 106

These damages make the victim whole

Question 107

Actual physical harm

Answer 107

This requires proving actual injury (bodily harm/property damage), not just economic loss; nominal damages/attorney's fees not permitted for negligence

Question 108

Duty to mitigate:

Answer 108

This is not a duty to D, but may reduce P's recovery as they must attempt to do this to their damages

Question 109

July 1, 2017 onward, increasing $50k each year till 2031 from $2.25 is:

Answer 109

This is the total negligence damages limit

Question 110

Punitive damages available if D acted:

Answer 110

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

Question 111

Traditional contributory negligence in Virginia completely bars P's recovery if:

Answer 111

This bars P's recovery if P's negligence was substantial cause of injury & must happen at same time as D's negligence

Question 112

P's contributory negligence does not bar recovery if:

Answer 112

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

Question 113

This is a complete bar to recovery for D's alleged negligence in causing injury

Answer 113

The voluntary assumption of risk of injury from a known danger is this:

Question 114

Contract provisions that purport to release D from liability for personal injury caused by D's future negligence are this:

Answer 114

These contract provisions for D's liability are prohibited

Question 115

Release from liability for property damage caused by D's future negligence are this:

Answer 115

These contract provisions for D's liability are enforceable

Question 116

Land possessors have duty to exercise reasonable care and take reasonable precautions to protect whom?

Answer 116

Land possessors hold these duties to invitee spectators from foreseeable dangers created by events held on property

Question 117

Elements of Strict Liability (and include types DAD):

Answer 117

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

Question 118

NO S/L for dog owners but for these, violation constitutes negligence per se:

Answer 118

For dangerous dogs (dangerous after hearing) Virginia recognizes this; must be securely enclosed and be muzzled&leashed when our or violation

Question 119

Defenses to S/L (mainly only one)

Answer 119

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