CONSENT

70. As a defense

Consent can be a defense to virtually any tort.

It is subjective -- the person must in fact have given consent -- not whether a reasonable person would have.

Silence or inaction may indicate consent, depending on the circumstances.

Consent may be inferred from custom, prior dealings between the parties, or from the existence of some relationship between the parties.

71. Capacity to give consent

A child, or intoxicated or otherwise incapacitated person cannot give consent.

Sometimes the law precludes a particular class of persons from being able to give consent (for their own protection) -- such as minors in statutory rape cases.

72. Consent implied by law

Consent may be implied when an emergency requires quick action and there is no opportunity to obtain consent.

72 (again). Consent induced by fraud

If the fraud goes to an essential matter, consent will not be a defense -- ie. If you allow a trick-short artist to shoot an apple off your head -- but the person is not a trick-shot artist.

But if it goes to a collateral matter, consent will still be a defense -- so if you allow a trick-short artist to shoot an apple off your head, and he pays you with counterfeit money.

Other point

If the results prove more serious than expected, the plaintiff cannot recover as long as the act itself was within the range of what was consented to.

Consent must be voluntary. But consent given under duress in the form of threatened future economic deprivation or future violence is not sufficient.

73. Given under a misapprehension

If consent was given under a misapprehension as to the nature of the act, it will still be valid as long as the defendant did not know of the apprehension and did not induce it.

Other points

One cannot consent to what is likely to cause death or serious bodily harm.

Consent can be exceeded and can also be limited specifically by the plaintiff.

MISTAKE

74. When based upon incorrect information

Mistake is a good faith belief, based upon incorrect information, that a person is justified in committing the action.

The belief must be reasonable and such that, if the facts as believed were true, the action would have been justified.

NECESSITY

75. Elements

Allows a person to commit an intentional tort in order to prevent more serious injury from an external force. It is a choice between the lesser of two evils.

The defendant cannot have caused the harm sought to be avoided.

The danger must come from physical circumstances (not from the threat of harm from another person, as in duress).

When the danger affects an entire community, the privilege is complete and the defendant is excused from liability entirely.

But when the danger affects only a private interest, the defendant is required to compensate the plaintiff for actual damage.

76. Cannot take a human life

One cannot take a human life and use necessity as a defense.

PARTICIPATION IN AN ILLEGAL ACT

77. Consequences

Trotter v. Okawa, 248 Va. 12 (1994)

Citing a rule from an earlier case (Zysk v. Zysk, 239 Va. 32), a party who consents to and participates in an illegal act cannot recover damages from other participants for the consequences of that act. So the plaintiff could not sue her estranged husband for damages for knowingly infecting her with herpes prior to their marriage.

C/a/b - an exception to this rule exists when the consent is obtained by duress -- plaintiff had sexual intercourse with his therapist under duress and coercion caused by her exploitive treatment of him.

AUTHORITY OF LAW

78. Sovereign immunity

When an act is discretionary, it is privileged as long as it is done in good faith. But when it is ministerial, it is not privileged.

An arrest is considered a ministerial act so the officer (and the department) can be liable in false arrest (although they are protected by the probable cause requirement).

DISCIPLINE

79. When privileged

Discipline is privileged as long as it is reasonable under the circumstances and administered by someone who has the legal authority to exercise it.

An objective, reasonable man test, is applied. Thus, it is not just a question of good faith -- it must be objectively reasonable.

CHAPTER 8

SELF-DEFENSE

80. When it may be used

It may be used when the defendant is in reasonable fear of an unlawful touching as long as he uses only a reasonable amount of force to stop it.

81. When deadly and non-deadly force allowed

Deadly force (force which is likely to cause death or serious bodily harm) can be used when the defendant is in reasonable fear of death or serious bodily harm and uses only a reasonable amount of force (which he believes necessary) to stop it.

Non-deadly can be used to when the defendant is in reasonable fear of an illegal touching.

Thus, there are two requirements: that his apprehension be reasonable and that he actually has such apprehension.

82. Duty to retreat

There is no duty to retreat in Virginia before using deadly force in self-defense.

In other jurisdictions where there is such a duty, it is not required if the defendant is in his own home or if retreat would be dangerous or futile.

83. Defense of others

A person who comes to the defense of another will not be liable if the circumstances as they appear to be at the time indicate that the person being aided could have used self defense.

84. Defense of property

One can never use deadly force strictly in defense of property.

One may also not use indirect deadly force, such as a spring gun or a trap or a vicious dog.

85. Not available to an aggressor

An aggressor cannot claim self-defense.

The modern view adds the idea that if an aggressor originally used non-deadly force and is then countered with deadly force as a result, he may defend himself using deadly force.

STATUTE OF LIMITATIONS

86. In Virginia

A technical defense which allows the defendant to block an action by the plaintiff because it was not brought within a certain time period following the action which caused the damage.

In Virginia, it is 2 years from the act (not from when the act is discovered, unless there was an intentional coverup by the defendant).

There is also what is known as the continuing treatment rule, which prevents the statute of limitations from beginning to run until after the treatment is over.

The statute of limitations does not run against a minor (until he turns 18).

CHAPTER 3 - NEGLIGENCE

87. Negligence - definition and elements

Negligence is the doing of something which reasonable and prudent person would not do -- or the failure to do something which a reasonable person ordinarily would do.

88. Duty owed

General duty -- what everyone owes each other in their daily activities -- to conduct one=s self in such a way so as to not unreasonably endanger the lives or property of others.

Statutory duty -- imposed by safety statutes as long as the victim is within the class or persons or things designed by the statute to protect.

The state sets the standard of reasonableness in certain activities by these statutes.

89. Mental disabilities

A person who is mentally disabled is expected to act according to the same reasonableness standard as that of a person of ordinary mental ability.

This is in fact impossible. But if such a person cannot reach that standard, he needs to be cared for by a responsible person when acting within society.

Negligence 239 -- A Virginia case says that an intoxicated person will be held to the same standard of care as that of a sober person.

And Burch v. American Family Mutual Ins. Co., 543 N.W. 2d 277 (1996) held that a severely developmentally disabled 15-year old, who was not institutionalized, should be held to the standard of care of a reasonable person.

90. Presumptions as to the capacity of children

Children are required to conform to the standard of care of a child of like age, education , intelligence and experience.

But when they are engaged in adult activities (as flying a plane), they will be judged by the reasonableness standard of an adult.

0-7: absolute presumption of incapacity

7-14: rebuttable presumption of incapacity

14-18: rebuttable presumption of capacity

91. Presumptions - absolute and rebuttable

An absolute presumption is a conclusion that the jury must reach in a given factual scenario.

A rebuttable presumption is a conclusion that the jury must reach in a given factual scenario until overcome by sufficient evidence to the contrary.

92. Inferences

Inferences are conclusions that a jury is free to reach or not from other evidence. They differ from presumptions in that presumptions have to be followed where inferences can be ignored by the jury.

93. How professionals are judged

A person with special skills is judged according to the standards of others in that profession (or within that specialty within that profession).

Common carriers and innkeepers are held to a higher standard toward their passengers and guests -- so that they will be liable for slight negligence.

94. When there is a duty to act

Generally, there is no duty to act unless:

a) you caused the problem that requires some action to solve

b) you begin to help a person in need (even if you were not required to)

c) the relationship between you and the other party requires it (parent)

d) you are obligated by contract (lifeguard)

95. Good Samaritan statutes

Hold people who try to help others in distress only for gross negligence.

Virginia has such a statute but it does not apply to the negligent operation of an automobile.

96. Duty to control the conduct of third persons

In Virginia, there is no duty on the part of a parent to control the actions of his children, even if her is aware of his or her dangerous propensities.

A parent, to be liable, must be acting in concert with such child.

Case #29 - Bell v. Hudgins, 232 Va. 491 (1987)

The appellant was the victim of an attempted rape at knife point at her work by a 16-year old boy who resided with his parents. The parents were aware of the boy=s history of serious emotional problems and violent behavior. Immediately prior to the attack, the boy had been involved in certain illegal activities on the appellant=s employer=s premises (which was also known by the parents). Appellant alleged that the parents= negligence was their failure to institutionalize the child or to severely curtail his activities.

The Court held that, in the absence of a principal-agent relationship, the fact of paternity alone does not impose liability on parents for the torts of their minor children. AThe Court will not establish in Virginia by judicial decree a blanket rule which would impose civil liability upon parents who fail to control their minor child=s criminal behavior.@

Statutory liability of parents -- Virginia has statutory liability for a limited amount for vandalism (both for public and private property).

A parent may be liable for negligence in allowing a child to do something unreasonably dangerous under the theory of negligent entrustment.

97. Foreseeability

Generally, one is not liable for damage when it is not reasonably foreseeable.

But under the eggshell rule, a plaintiff will be liable for the unforeseeable damage that exceeds in degree the damage that should have been foreseen (when the plaintiff is acting improperly in the first place).

Case #7 - Endicott v. Rich, 232 Va. 150 (1986)

A woman approached two persons on bicycles from behind. She let off the gas and attempted to pass. They swerved in front of her car to reach the other side of the road and she struck one of them.

The trial court found that the driver was not negligent as a matter of law and that the victim was contributorily negligent as a matter of law. Both rulings were overturned on appeal and should have gone to the jury.

So the issues of the defendant=s negligence and the victim=s contributory negligence (as well as the presumption that he could not be negligent due to his age ( 7-14 ) all were jury questions.

S & C Company v. Horne, 218 Va. 124 (1977) - not assigned -

The failure of a lifeguard to observe a drowning swimmer was properly found to be negligence by the jury. The standard of care is the care ordinarily exercised in similar circumstances by a qualified lifeguard to detect signs of distress.

Case #8 - Reliable Stores v. Marsh, 218 Va. 1005 (1978)

Plaintiff walked into a colorless glass door of a small store. The door had a gold eagle decal which should have been readily apparent to a reasonably prudent person exercising reasonable care for her own safety.

The jury awarded the plaintiff $9,000.00 but the Virginia Supreme Court found the plaintiff to have been contributorily negligent as a matter of law and reversed the judgment.

Crawford v. Johnson, 219 Va. 9 (1978) - not assigned -

The decedent, after dark, walked across a lane of traffic in front of oncoming traffic, attempting to inspect a vehicle stopped in the median strip. This was properly found to have been contributory negligence as a matter of law.

N & W v. Greenfield, 219 Va. 122 (1978) - not assigned -

The decedent was killed when his car was struck by a train at a RR crossing.

His failure to properly look and listen as he approached the crossing was contributory negligence as a matter of law.

NOTE: If a train fails to sound a whistle pursuant to 54-414, the doctrine of comparative negligence applies (with contributory negligence considered only in mitigation of damages).

Basilotta v. Baker, 222 Va. 683 (1981) - not assigned -

Whether a pedestrian, struck by an automobile at or near a street crossing, was guilty of contributory negligence is almost invariably a jury question.

A pedestrian, crossing with the light, has the right of way. And this right of way continues if the light changes while he is still crossing. But one may not act in complete disregard for his or her own safety, blindly relying on the fact that he or she has the right of way.

Weems v. Blalock, 226 Va. 304 (1983) - not assigned -

Where a plaintiff shows that the vehicle she occupied was struck from the rear while stopped in a line of traffic backed up from an interchange, she establishes a prima facie case of negligence and the defendant then has the burden of going forward with the evidence.

Case #9 - Va. and Maryland R. Co. v. White, 228 Va. 140 (1984)

The plaintiff=s contributory negligence was considered a jury question when he passed three cars on the right and struck a train at a RR crossing which was negligently left unlit.

Defendant had a BAC of .11 but witnesses described him as normal. It was a 4-lane road and he had traversed the intersection many times and knew of and therefore could rely on the RR safety devices at the crossing (which in fact were not working). The judgment for the plaintiff=s estate in this wrongful death action of $600,000 was upheld.

Graddy v. Hatchett, 233 Va. 65 (1987) - not assigned

Negligence as a matter of law when a defendant made a left turn in front of a plainly visible, fast moving truck on the erroneous assumption that the truck would stop.

Case #10 - Nolde Bros. v. Wray, 221 Va. 25 (1980)

A driver gave what could have been interpreted as a hand signal to another driver to cross the street. But the driver giving the signal was not in a position to see if it was safe for the other to proceed (he was in fact behind the other driver waiting to cross). This was a case of first impression in Virginia.

This was found not to have been a case of negligence in that it was clear that the driver giving the signal was not in a position to see the oncoming traffic.

The court did reaffirm the notion that even a gratuitous action must be done properly, or it will be considered negligence.

Case #11 - Sneed v. Sneed, 219 Va. 15 (1978)

Negligence cannot be presumed from the mere happening of an accident. The defendant allowed the right wheels of her car to run off the pavement. She overcompensated and swerved to the right and ran over an embankment.

A plaintiff must show that an accident resulted from one of two causes, for one of which the defendant is responsible (ie. inattention), and for the other of which she is not (ie. sudden illness). If the cause of the accident is left to conjecture or guess, the plaintiff cannot recover.

Case #12 - Jordan v. Jordan, 220 Va. 160 (1979)

The duty to inspect behind or under a vehicle arises only when a person knows or should have known of the potential danger.

Case #13 - Norfolk and Portsmouth Railroad v. Barker, 221 Va. 924 (1981)

A 10-year old boy tried to jump on a slow-moving train and his foot was crushed beneath the wheels. The jury=s finding that he was not contributorily negligent was against all the evidence.

It was not negligence on the part of the railroad to fail to anticipate that a child will intentionally expose himself to a known danger. There is a duty to anticipate that a child will do something carelessly or foolishly, but not that he might intentionally expose himself to such a danger.

A railroad owes no duty to anticipate that a child will try to jump on a moving train and therefore is under no duty to assign a guard to prevent it.

98. Degrees of negligence

Simple negligence - the failure to exercise ordinary care

Gross negligence - the failure to exercise slight care -- that would >shock fair-minded persons=

In both of the above degrees of negligence, the defendant failed to appreciate the risk that he was taking. But in wilful and wanton negligence, he does appreciate the risk, but just does not care. It is very close to intentional behavior.

Conduct is considered reckless (criminal negligence) when the defendant knows or has reason to know that it creates an unreasonable risk of harm and that risk is relatively high either in degree or probability.

And although there is no intent to cause harm, there is an appreciation of the risks involved.

Case #14 - Community Bus Company v. Windley, 224 Va. 687 (1983)

Plaintiff was on a bus when a bottle shattered on the street in front of the bus. It slowed down and then a rock broke a bus window, splattering glass on the plaintiff. He stood up, grabbed the rail and braced himself. The bus accelerated and after about 250-300 feet stopped suddenly near a telephone booth, throwing Windley to the floor.

This was found by the Virginia Supreme Court to not be negligence as a matter of law.

Case #15 - Wolfe v. Baube, 241 Va. 462 (1991)

Defendant was driving in the wrong lane of a limited access highway without headlights. The plaintiff (decedent) was speeding (80-85 m.p.h.), took evasive action but collided with the defendant.

The plaintiff=s actions were found not to have been wilful and wanton conduct as a matter of law -- thus the defense of contributory negligence was not available to the plaintiff.

Contributory negligence is a defense to wilful and wanton negligence only if it also rises to the level of wilful and wanton negligence. Here it did not as a matter of law.

Wilful and wanton negligence is acting consciously in disregard of another person=s rights or acting with reckless indifference to the consequences, knowing that, under the circumstances, the conduct probably would cause injury to another.

Case #16 - Griffin v. Shively, 227 Va. 317 (1984)

Defendant was deathly afraid of snakes. The decedent teased him about it and told him that he was going to get a snake where some had been seen outside. Defendant begged him not to and told him that someone could get shot. The decedent knew that the defendant owned a gun. He threw a belt inside the diner where the defendant was located. The defendant shot at the belt and killed the decedent.

Both the defendant=s acts and the decedent=s acts were found to be jury issues as to whether they amounted to wilful and wanton behavior.

Case #17 - Infant C. V. Boy Scouts of America, 239 Va. 572 (1990)

The plaintiff was a boy scout who was molested more than 60 times over a one-year period. He alleged negligence in the hiring and retention of the scoutmaster.

At trial, the evidence indicated that the scoutmaster had intentionally molested the child and the trial court therefore dismissed the case since it was based on negligence (wilful and wanton). This was improper.

The hallmark of wilful and wanton negligence is the defendant=s consciousness of his act, his awareness of the dangers or probably consequences, and his reckless decision to proceed notwithstanding that awareness. Thus, the use of the term negligence in defining the tort is a misnomer to the extent that negligence is equated with inadvertent neglect of duty.

An actor guilty of intentional misconduct must intend to cause harm to another, while an actor guilty of wilful and wanton misconduct intends his act, but not the resulting harm.

The evidence here does not show that the scoutmaster intended to harm the plaintiff, but his motivation might be characterized as deliberate self-gratification with a total disregard for the consequences to his victim. Thus, the allegation of wilful and wanton negligence should have gone to the jury.

CAUSATION

99. Cause in fact - sine qua non

But for the defendant=s conduct, the incident would not have happened. If you take away a person=s actions, and the result would have occurred anyway, then that person is not considered a cause.

If one negligent act combines with other negligent acts to cause damage, but none of the acts standing alone would have caused the injury, all are considered liable (but for each negligent act, the injury would not have occurred).

100. Proximate cause

The legal cause -- it limits liability to reasonably forseeable consequences.

Otherwise we would all be insurers of each other=s safety.

Example in the text - if the defendant=s negligence causes a pole supporting electric wires to fall, and the electricity goes out at a nearby hospital causing the plaintiff (on life support) to die -- this is a cause-in-fact, but not a legal cause due to the lack of forseeability.

Forseeability requires that the result have some relationship to the act -- although the actual damage need not in fact have been forseen.

Rescuers are considered forseeable and the defendant will therefore be liable to a person who is injured coming to the aid of the victim.

101. Eggshell rule

You take your victim as you find him. This rule extends liability to unforseeable results if they are of the same kind of result that should have been forseen (the only thing unforseeable was the extent of the damage).

The defendant=s conduct must have been improper in the first place. He therefore must have forseen some unacceptable damage -- he just didn=t foresee the more serious extent of the damage which occurred.

102. Multiple causes

If two defendants are acting independently, they both will be liable for all the damage caused if the damage is indivisible, unless one can prove that he was not in fact responsible. This is true even if it can be shown that only one of them caused the damage (such as 2 people firing at the plaintiff and only one bullet hits).

If the damage is in fact divisible, each will be liable for what each actually caused.

103. Exposure to further injury

If the defendant=s actions expose the plaintiff to the risk of further injury, he will be liable for that as well.

Thus, a doctor=s negligence in the emergency room should have been forseen as a reasonable possibility and the defendant (as well as the doctor) would be liable for the damage caused by the doctor=s negligence.

But a doctor=s gross negligence has been found to not have been forseeable.

104. Intervening cause

Something that happens that was unforseeable that causes further damage.

The defendant would not be liable for that further damage. So the doctor=s gross negligence in the emergency room would be considered an intervening cause.

If truly intervening, it takes the defendant off the hook for that damage.

Some common intervening causes include a criminal act or intentional tort by a third person, gross negligence by a third person or an act of God.

105. Duty to neutralize risks

This occurs when someone takes steps to remove the effects of the defendant=s negligence.

If the defendant negligent permitted firecrackers to get into the hands of a child -- but the child=s parents find them and take them away and then negligently allow the child to get hold of them again and is injured -- the defendant would no longer be liable.

This requires that the person have a duty to the victim to remove the danger.

Case #18 - Banks v. City of Richmond, 232 Va. 130 (1986)

The defendant city=s employee, responding to the calls of a tenant, discovered a small gas leak in an apartment oven. The city negligently failed to turn off the gas but did notify the apartment rental office of some sort of problem with the oven. The maintenance man was sent by the apartment office to check on it. He turned on the gas, smelled it, and then turned it off again. Not smelling gas anymore, he opened the doors of the oven, lit a cigarette lighter to detect the leak, and was promptly blown through the kitchen cabinets by the resulting explosion.

The proximate cause of an event is the act or omission which, without an intervening cause, produces an event which would not have occurred without such act or omission.

In the present case, the maintenance man=s use of a cigarette lighter near a gas leak was the proximate cause of the explosion. The city=s failure to turn off the gas was, at most, a remote cause. It was a mere circumstance of the resulting explosion. The actions of the maintenance man was an intervening cause as a matter of law.

Case #19 - Norfolk Shipbuilsing and Drydock v. Scovel (1990)

The plaintiff was working on a ship while the defendant=s employees were loading cases of food onto the main deck above the room in which he was working.

One of the employees on the deck threw a balled-up candy wrapper through an open hatch down to where the plaintiff was working. The wrapper hit him on the leg and startled him. He jumped up and twisted his body to see what was going on. He continued to work for a few minutes but had to stop because of the pain in his back.

The failure to deposit the candy wrapper in a proper receptacle as required by published safety regulations was negligence. But it was not the proximate cause of the injury because the actor could not have reasonably forseen the probability of injury.

DAMAGES

106. Compensatory - general and special

General damages - those which normally flow from the type of tort committed (and need not be specially pleaded)

Special damages - those which are peculiar to the plaintiff (ie. loss of wages). These must be specially pleaded and proven.

107. Nominal damages - awarded when the plaintiff has proven his case but failed to show any real damage ---- $1.00

Personal injury - economic loss (medical bills, loss of wages, custodial care), pain and suffering, mental anguish (fright and shock, anxiety about the future, loss of peace of mind, humiliation, loss of ability to lead a normal life), physical impairment, disfigurement.

Pre-existing conditions - the eggshell rule applies, making the defendant liable.

108. Collateral source rule

Payments made to the plaintiff from another source (ie. Blue Cross) due to the injury, are not used to offset the defendant=s liability (and in fact cannot be introduced into evidence).

109. Damage caps

Virginia has a damage cap on medical malpractice cases ($1,000,000.00) but not other tort actions. 8.01-581.15 - includes punitive damages and applies if indivisible injury is caused by the concurring negligence of two or more defendants.

110. Duty to mitigate damages

The plaintiff must act reasonably to mitigate his damages or cannot recover for that amount.

Seat belts - Some jurisdictions (not Virginia) limit recovery for the amount of the damage attributable to the plaintiff=s failure to wear a seat belt.

111. Punitive damages

Used to punish the wrongdoer - a windfall for the plaintiff.

In Virginia, they can be awarded for intentional torts and for reckless (wilful and wanton behavior) -- not for gross negligence.

As a general rule, some actual damages must also be shown to exist before punitive damages can be awarded.

The defendant=s financial condition is relevant when punitive damages are claimed.

112. Items which are not recoverable as damages

Interest from the date of the damage (but from the date of judgment)

Attorney=s fees

Other point - Allocation among tortfeasors

All are equally liable for the entire amount - but only one recovery is permitted

113. Contribution

In Virginia, a joint tortfeasor who has paid more than his share of a judgment, may then sue the others in contribution (as long as the wrongdoing involved negligence with no moral turpitude).

Traditional contribution rules require all defendants to pay equal shares regardless of their respective degrees of fault.

But some states have a comparative contribution system, which allocates the amount in proportion to the relative fault of the various defendants.

114. Indemnity

Basically, this is an insurance agreement whereby a company agrees to cover it=s insured=s liability. And they >buy= a claim against the wrongdoer for the amount it had to pay the victim (the insured) because of the wrongdoer=s actions).

115. Res ipsa loquitur

The thing speaks for itself - a rule of evidence which allows a plaintiff to carry his burden of proof without actually showing the specifics of the defendant=s neligence.

1) the damage or injury must be such that it would not normally have occurred without negligence on the part of someone

2) the instrumentality or condition which caused the damage or injury had to have been under the exclusive control of the defendant

3) the plaintiff must be free from contributory negligence

4) the defendant had to be in a position where only he (and not the plaintiff) could know exactly what happened

Virginia jury instructions - The jury are not obligated to draw such an inference (that the defendant was negligent) but they may do so. In such a situation, a prima facie presumption is raised that the defendant was negligent, and in the absence of evidence showing the defendant to be free of negligence, the jury may find a verdict in favor of the plaintiff, but this does not shift the burden to prove by a preponderance of the evidence that the defendant was negligent. OUTRAGEOUSLY CONFUSING

Cooper v. Horn, 248 Va. 417 (1994) - not assigned

A dam upstream washed out during a heavy rainstorm. The plaintiff alleged that it had been faultily constructed and relied on the doctrine of res ipsa loquitur.

This was properly denied because the plaintiffs were not powerless to ascertain the cause of the accident - such evidence was equally available to both parties.

Case #20 - Stein v. Powell, 203 Va. 423 (1962)

Plaintiff, 2 and 2 years old, accompanied his mother and grandmother into the defendant=s store. While the adults were looking at dresses, he ran into a small dressing room at the rear and slammed the door, whereupon a full-length mirror fell and injured him.

It was error to grant the res ipsa loquitur instruction. The mirror was not under the exclusive control of the defendant since customers used the room, and the evidence was conflicting as to whether it was negligently propped against a side wall or safely stored in the rear of the room. Hence the plaintiff was not injured under circumstances that would compel an inference that the injury would not have occurred unless the defendant was negligent.

Case #21 - Logan v. Montgomery Ward, 216 Va. 425 (1975)

The mere fact of the explosion of a gas stove does not establish the negligence of either the manufacturer or seller of the stove and does not establish that the stove was defective. The evidence fails to eliminate the possibility that the blame attaches to some party other than the defendant.

The doctrine of res ipsa loquitur does not apply in the case of an unexplained accident which may be attributable to one of several causes.

CHAPTER 4 - SPECIAL NEGLIGENCE ACTIONS

DUTIES OF LANDOWNERS

116. To those off the premises

Generally, there is no duty owed to those off the premises from natural conditions on the land (so one is not liable for bees which have a nest on his land but go next door).

There is also no duty as to artificial conditions on the land. But there is liability for damage caused by unreasonably dangerous artificial conditions or structures which abut adjacent land.

And a landowner has a duty to protect passersby from dangerous conditions on the land which are located near the edge of the property. Such as erecting a barricade to keep people from falling into an excavation at the edge of the property.

117. To trespassers

A trespasser is one who comes onto the land without permission or privilege.

A landowner has no duty to an undiscovered trespasser. And he has no duty to check to see if any trespassers are coming onto the land.

Once he discovers the presence of a trespasser, he is under a duty to warn the trespasser about or make safe any artificial conditions that involve the risk of death or serious bodily harm and that the trespasser is unlikely to discover.

There is no duty owed for natural conditions, for less dangerous artificial conditions, and for dangerous artificial conditions which are open and obvious.

118. Attractive nuisance doctrine

Landowners have a duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property.

For this doctrine to apply, the landowner must have known or should have known of the dangerous condition, that children frequent the property, that the condition is likely to be dangerous due to a child=s inability to appreciate the risk, and the expense of remedying the situation is slight compared to the magnitude of the risk.

This doctrine has been applied to abandoned automobiles, lumber piles, elevators and abandoned refrigerators.

It is not necessary for the plaintiff to establish that the artificial condition have lured the child on to the property. All that is necessary is that there is a foreseeability of farm to known infant trespassers.

119. Licensees

A licensee is one who enters the land with the permission of the landowner, express or implied, for his own purpose or business rather than for the landowner=s benefit.

A social guest is considered a licensee.

The duty owed to a licensee is to warn him of dangerous conditions known to the landowner, where he knows it creates an unreasonable risk of harm and where he also knows that the licensee is unaware of the condition and unlikely to discover it.

There is no duty to inspect for dangers.

120. Invitees

An invitee is a person who enters on to the premises in response to an express or implied invitation of the landowner. These include museums, churches, airports as well as customers and employees of commercial stores.

Those who enter the premises in the exercise of a privilege can be categorized as follows:

a) when the person serves some purpose of the landowner (ie. trash collector, mail man), he will be treated as an invitee.

b) when one who comes under normal circumstances during working hours (ie. census takers, health inspectors), he will be treated as an invitee.

c) police officers and firefighters are generally considered licensees.

The duty owed to an invitee is to use ordinary care in keeping the property reasonably safe for the benefit of the invitee. This includes a duty to inspect the property for dangerous conditions and to make them safe, or warn the invitee about them.

The duty to warn does not apply if the danger is open and obvious.

In Virginia, a landowner has no duty to protect business invitees from the criminal acts of third persons.

Case #22 - Wright v. Webb, 234 Va. 527 (1987)

The plaintiff was assaulted in the parking lot of a motel owned by the defendant. The parking lot was also used by patrons of a dinner theater next door. The plaintiff asked at the motel for directions to the dinner theater, returned to the parking lot and was attacked. She was injured before 3 motel guests came to her rescue. Evidence at trial indicated that in the past there had been frequent criminal thefts and two assaults in or near the parking lot. There was also expert testimony that additional security precautions might have deterred criminal activity there.

Assuming that the plaintiff was a business invitee, the defendant owed her a duty of ordinary care to maintain the parking lot in a reasonably safe condition.

A business invitor owes the same duty of reasonable care to an invitee that a landlord owes to his tenant -- and a landlord has no obligation to protect his tenants from the criminal acts of third persons.

There is a difference between the duty to anticipate crimes against property and the duty to anticipate acts of criminal assault, which ordinarily cannot be reasonable foreseen.

The likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing the burden on a property owner must be considered in determining whether a duty of care exists, and experience demonstrates that the cost of the most effective deterrent to acts of criminal assault would be prohibitive.

Where an invitor and an invitee are both innocent victims of assaultive criminals, it is unfair to place the burden of protection on the invitor.

A business invitor whose business does not attract or provide a climate for assaultive crimes has no duty to take measures to protect an invitee from criminal assault unless he has knowle