W & M Rule Statements

Question 1

Assault

Answer 1

The intentional tort of assault consists of:
(1) a voluntary act;
(2) intended to cause either an attempted battery (harmful or offensive contact) OR apprehension of such contact with another person;
(3) which causes reasonable apprehension of imminent contact in the other person

Question 2

Battery

Answer 2

The tort of battery consists of the following elements:
(1) a voluntary act;
(2) intended to cause either harmful or offensive contact;
(3) resulting in harmful or offensive contact to the P’s person.

Question 3

For battery, the contact may be caused….

Answer 3

directly or indirectly

Question 4

Transferred Intent Doctrine

Answer 4

The intent to commit an intentional tort against one person can be transferred to the person actually injured OR the tort actually committed.

Question 5

Transferred intent applies to….

Answer 5

assault and battery

Question 6

Transferred intent does not apply to…

Answer 6

IIED

Question 7

Intentional Infliction of Emotional Distress

Answer 7

The tort of intentional infliction of emotional distress (“IIED”) consists of the following elements:
(1) a voluntary act amounting to extreme and outrageous conduct;
(2) committed intentionally or recklessly by the D; and
(3) causing emotional distress that was severe.

Question 8

Conduct by D for IIED must be

Answer 8

outrageous and beyond human decency in a civilized society.

Question 9

For IIED, the distress must be

Answer 9

such that no reasonable person could endure it.

Question 10

Negligence - elements

Answer 10

(1) Duty of care on part of the D to conform to a specific standard of conduct to protect P against an unreasonable risk of injury

(2) A breach of that duty owed by D;

(3) The breach is the actual and proximate cause of the P’s injuries; and

(4) The P suffered damages as a result

Question 11

Standard of care

Answer 11

The standard of care usually revolves around the concept of the reasonable person standard: whether someone acted with care as the average person would have in those circumstances.

Question 12

Children - standard of care

Answer 12

standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience

Question 13

Exception to the general rule for the standard of care for children

Answer 13

when the child engages in adult-like activities, they will be held to the reasonably prudent standard

Question 14

Irrebuttable presumption for the standard of care for a child

Answer 14

Irreputable presumption that a child under 7 years old is incapable of being negligent .

Question 15

Rebuttable presumption for the standard of care for a child

Answer 15

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

Question 16

Reasoning for the presumptions for a child’s standard of care

Answer 16

child lacks capacity to understand dangers of his acts.

Question 17

Premises Liability Claim

Answer 17

Landowner’s duty owed to people on its property as to dangerous conditions on the land depends on the legal status of the P with regard to the property (trespasser, licensee, invitee)

Question 18

Who is an invitee?

Answer 18

a person who is invited to enter or remain on the land for the proposes which the land is held open for public or a business visitor

Question 19

Duty of care - invitee

Answer 19

Duty of reasonable care to keep the property reasonably safe, which includes an obligation to warn of or make safe non obvious dangerous conditions known to the landowner and a duty to make reasonable inspections to discover dangerous conditions and make them safe.

Question 20

Does a landowner owe an invitee a duty to warn of open and obvious conditions that the invitee should reasonably be aware of?

Answer 20

No

Question 21

The duty owed to invitees does not extend to…

Answer 21

Places beyond the invitation and to which the invitee is not reasonably expected to go.

Question 22

Does a landowner a duty of care to invitees who enter the land for specific recreational purposes (hunting or fishing)?

Answer 22

No

Question 23

If a business owner has constructive notice of an unsafe condition…

Answer 23

it is a breach of the duty to exercise ordinary care in maintaining the proeprty

Question 24

What is constructive notice?

Answer 24

established where the unsafe condition was present for a period of time such that the owner should have seen or noticed it and fixed it

Question 25

Who is a licensee?

Answer 25

A social guest

Question 26

Landowner duty to licensees

Answer 26

Land possessor has duty to either correct or warn a licensee of concealed dangers that are either:

Known or should be obvious

Question 27

Does a landowner have a duty to licensees to inspect for danger?

Answer 27

No

Question 28

When conducting activities on the land, the landowner owes a duty to licensees to…..

Answer 28

Exercise reasonable care in conducting activities on the land.

Question 29

Landowner duty to trespassers

Answer 29

landowner obligated to refrain from willful, wanton, or reckless, or intentional misconduct towards trespassers.

Question 30

Landowners duty to those outside the land with respect to natural conditions on the land, regardless of dangerous condition

Answer 30

No duty

Question 31

Does a landowner have a duty to inspect and cut down trees that may fall on the public road?

Answer 31

No - A duty is owed to refrain from engaging in any act that makes the highway more dangerous than in a state of nature or in the state in which it had been left

Question 32

If a landowner begins to engage in an affirmative act that cause the natural state to be different

Answer 32

they will be liable to any injuries that arise from their affirmative acts

Question 33

VA’s Good Samaritan Statute

Answer 33

If a person acts in good faith and renders emergency care or assistance, without compensation, to any ill or injured person, they will not be liable for civil damages for acts or omissions resulting from said rescue or assistance

Question 34

Exception tot he VA Good Samaritan Statute

Answer 34

rescuer failed to exercise the care that an ordinary prudent person would in the circumstances (must be extreme)

Question 35

Standard of Care of an Innkeeper

Answer 35

duty to exercise the utmost care to protect their customers.

Question 36

Standard of care for doctors

Answer 36

local standard (i.e., Commonwealth) - not the custom standard for the practice in general.

Question 37

Proximate Causation

Answer 37

an action is the proximate cause of an injury if the injury is the natural and probable cause of the act, and was foreseeable.

Question 38

Proving proximate cause….

Answer 38

A P must prove a connection sufficiently close or reasonably foreseeable that it is fair and just to require D to pay for the wrong done.

Question 39

Superseding causes to break the chain of causation

Answer 39

Under VA law → the intervening cause must completely supersede the D’s actions, so that the intervening cause alone produced the P’s injury, without the D’s contributing negligence.

Question 40

Whether P can establish proximate cause will likely constitute an issue…

Answer 40

for the fact finder

Question 41

Actual Causation

Answer 41

“but for” D’s action, P would not have suffered an injury

Question 42

When the “but-for” test fails…..

Answer 42

each cause of act that alone would have been a factual cause to the plaintiff’s harm is regarded as a factual cause of the harm – think “multiple sufficient causes”

Question 43

Negligence Per Se

Answer 43

Plaintiff must prove that:
(1) the D violated a statute that was enacted for public safety;

(2) establish that P 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 the injury

Question 44

Be careful with a statute in the fact pattern for a seller of intoxicants who dispenses alcoholic beverages to an intoxicated person….

Answer 44

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

Question 45

Negligent Entrustment of a Vehicle

Answer 45

VA permits claims for direct liability based on negligent entrustment of a vehicle to a child.

Question 46

What must P prove for negligent entrustment of a vehicle

Answer 46

P must prove that parent is the owner of a vehicle and that they knew or should have known that entrusting her vehicle to an unfit driver is likely to cause injury to others.

Question 47

When can the parent owner of a vehicle be found liable to have entrusted her vehicle to the child….

Answer 47

By giving the child express or implied permission

Question 48

In motor vehicle cases for negligent entrustment involving an intoxicated driver

Answer 48

P must prove owner:
(1) knew or had reason to know that D is addicted to intoxicants OR

(2) has the habit of drinking
**AKA Owner must known or should know that the drivers habits are such that he is likely to drive while intoxication.

Question 49

Respondeat Superior Doctrine

Answer 49

An employer is vicariously liable for the torts of his employee committed within the scope of employment.

Question 50

What is the “scope of employment”

Answer 50

employee is acting within scope of employment if:

(1) the act was expressly or impliedly directed by the employer, or is naturally incident to the business;

(2) and performed, although mistakenly or ill-advisedly, with the intent to further the employer’s interest, or some impulse or emotion that was the natural consequence of an attempt to do the employer’s business

Question 51

If the employee commits an intentional tort….

Answer 51

the employer is not liable unless the employee acted in furtherance of the employer’s business (i.e., bouncers and security guards and clubs and bars)

Question 52

Is there liability for the tort of an independent contractor?

Answer 52

No, unless an exception applies.

Question 53

An employer will be liable for the tort of an independent contractor when:

Answer 53

(1) Where such activity is an inherently dangerous activity

(2) Negligent hiring

Question 54

The most important factor in determining if an individual is an employee v. independent contractor is…

Answer 54

The power to control the means and method of performing the work

Question 55

Contributory Negligence

Answer 55

An affirmative defense and is a complete bar to recovery.

General rule = No P is entitled to recover from another for an injury approximately caused by any negligence committed by P.

Question 56

To determine whether a child P is contributorily negligent

Answer 56

need to determine child standard of care; the issue is whether the child was capable of committing negligence and whether his actions constituted a failure to exercise reasonable care for his own safety.

Evidence must show that P’s conduct did not conform to the standard of what a reasonable person of the like age, intelligence, and experience would do under the circumstances for his own safety and protection.

When a child is between 7 and 14 - D can rebut the presumption that a child cannot be held negligent.

Question 57

To argue that a child P was contributorily negligent

Answer 57

D would need to argue that the child had the capacity to understand and appreciate the peril and dangers of his acts

Question 58

Assumption of Risk

Answer 58

An affirmative defense that operates to bar the recovery by P based on the subjective inquiry into what the particular P knows, understands, and appreciates.

Question 59

To succeed on an assumption of the risk defense, the D must prove that the P:

Answer 59

fully understood and appreciated a known danger and voluntarily exposed himself to it.

Question 60

Mitigation of Damages - as a defense

Answer 60

Even if there do not appear to be any applicable defenses to negate tort liability, a defendant may raise “mitigation of damages” as a defense.

Question 61

Mitigation of damages for intentional torts

Answer 61

applicable when the defense can decrease the damages recovered by the P.

Question 62

When does VA law recognize P’s duty to mitigate damages?

Answer 62

VA law recognizes a P’s duty to mitigate damages in a personal injury action by submitting to a reasonable medical treatment

Question 63

Defense to proximate cause

Answer 63

A D can argue that the action causing P’s injuries were not reasonably foreseeable and could not anticipate a third party coming to P’s rescue

Question 64

Is release of liability a defense for future acts enforceable?

Answer 64

No

Question 65

Why aren’t general release of liabilities for future acts enforceable?

Answer 65

They are against public policy.

Question 66

Does VA rely on the family purpose doctrine?

Answer 66

NO - VA rejects it

Question 67

Because VA rejects the Family Purpose Doctrine, the owner of an automobile is/is not vicariously liable for a family member’s negligent operation of an automobile simply by virtue of the family relationship?

Answer 67

IS NOT LIABLE simply based on virtue of the relationship.

Question 68

VA permits claims for direct liability against family members based on negligent entrustment of a vehicle. The result:

Answer 68

A family member may still be liable for negligent entrustment of a vehicle