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 knowledge that criminal assaults are occurring or are about to occur, indicating an imminent probability of harm to an invitee.

 

The two prior isolated acts of violence described in the present case would not lead a business invitor to conclude that such a risk existed.

 

Case #23 - Klingbeil Management Group v. Vito, 233 Va. 445 (1987)

 

Plaintiff-tenant was raped in her apartment by an unknown assailant.  She sued the owners and managers of the apartment complex for failing to have a dead-bolt lock on the front door of her apartment.

 

There is no special relationship (such as common carrier-passenger) that exists between a landlord and a tenant which would give rise to a duty on the landlord to protect the tenant from the intentional criminal act committed by an unknown third person.

 

Case #24 - Gulf Reston Inc. V. Rogers, 215 Va. 155 (1974)

 

A tenant was on his apartment patio when an unknown trespasser on the roof of the apartment building threw aluminum paint on him, covering his whole body.

Instances of unauthorized access to the apartment roof had occurred before, including one instance where water bags were dropped.

 

No liability on the part of the landlord was found.  As a general rule, a landlord does not owe a duty to protect his tenant from a criminal act by a third person.

 

In the instant case, the activities of the earlier trespassers were primarily limited to redirecting the lights, diving off the roof into the lake, and in one case putting a hole in the roof.  The only single act by the trespassers threatening harm to third persons was the boyish prank of dropping water-filled bags off the roof.  It could not reasonably be foreseen from these acts that there was a likelihood that acts of criminal violence would be committed on tenants.

 

Case #25 - City of Suffolk v. Hewitt, 226 Va. 20 (1983)

 

A property owner must give a warning of an unsafe condition known to him and unknown to his invitee unless the condition is obvious to a reasonable person exercising due care.

 

 

An invitee who acts reasonably in entering an unmarked office building back door retains her status as an invitee.  The property owner should have either kept the door locked or given indication, by sign or otherwise, of its dangerous condition.

 

C/a/b: the plaintiff entered the wrong door and fell down the steps and broke her leg.

 

Tate v. Rice, 227 Va. 341 (1984) - not assigned

 

Plaintiff was delivering eggs to the defendant=s residence and slipped on ice in the driveway, which had not been cleared away.

 

An owner or occupier of land must use ordinary care to keep his premises reasonably safe for an invitee and to warn of any known dangerous conditions which are neither open nor obvious to the invitee.

 

But the invitee must exercise ordinary care for his own safety.  The danger here was open and obvious.

 

An owner or occupier of a private residence has no affirmative duty to an invitee to remove obvious accumulations of snow and ice from his premises or warn of an open and obvious danger (a business or other public invitor does have such a duty).

 

121. Notice of danger

 

Case #26 - Memco Stores, Inc. V. Yeatman, 232 Va. 50 (1986)

 

The plaintiff entered the defendant=s store and slipped on a slimy leaf from a peperomia plant on display and injured her back.

 

The duty owed to an invitee is to have its premises in reasonably safe condition for the customer=s visit, to remove within a reasonable time foreign objects from its floors, and to warn customers of the unsafe condition if it was unknown to her, but was known or should have been known to the store.

 

Constructive notice of the unsafe condition is all that is needed.  Such notice was established in this case.

 

122. Dangerous instrumentalities doctrine

 

Case #27 - Grim v. Rahe, 246 Va. 239 (1993)

 

A 4-year old boy suffered an electrical burn to his hand when he touched a broken fluorescent light receptacle that was charged with 120 volts of electricity and located on the customer=s side of an order counter at a fast food restaurant.

 

Under the dangerous instrumentalities doctrine, the danger must not only be hidden or latent - the instrumentality must be easily accessible to children and in a location that children frequently gather.

 

Here, there was no evidence that an unbroken light fixture is a dangerous instrumentality.  Thus the doctrine is not applicable.

 

There was also no evidence as to when the fixture was broken.  There was thus no liability established as there was no constructive notice of the danger shown to have existed.

 

Note that if the doctrine had applied, no notice would have been necessary.

 

123. Duty owed by lessors of realty

 

A landlord must keep his premises in reasonable repair -- but only after he is on notice of the need for such repair.  He owes no duty to inspect the premises.

 

When a person leases an entire piece of property, he takes over the responsibilities of the owner as to third persons coming on the land.

 

But when only a portion of the property is leased, the owner continues to be subject to liability for unreasonably dangerous conditions for the common areas (such as hallways).

 

The lessor must warn the lessee of existing defects in the premises of which the lessor is aware, or has reason to be aware, and which he knows the lessee is not likely to discover on reasonably inspection.

 

VICARIOUS LIABILITY

 

124. Respondeat superior

 

An employer will be vicariously liable for torts committed within the scope of their employment.

 

Case #28 - Kensington Associates v. West, 234 Va.430 (1987)

 

A security guard was hired by the defendant contractor during the renovation of a hospital building.  He accidentally shot an employee while drawing his pistol in fun.  This was found to be outside the scope of his employment because he was engaging in >horseplay= (which was in direct violation of the defendants= orders).

 

An act is within the scope of employment if directed by the employer or a natural incident to the business, if performed with the intent to further the employer=s interest, and if it did not arise wholly from some external or personal motive on the part of the employee.

 

NOTE: when an employer-employee relationship has been established, the burden is on the employer to prove that the employee was not acting within the scope of his employment.

 

Intentional torts are generally not considered within the scope of employment.  Some exceptions exist:

 

a)when force is authorized in the employment (ie. a bouncer)

b) when friction is normally generated by the employment (ie. bill collector)

c) when the employee is furthering the business of the employer (ie. removing rowdy customers from a store)

 

125. Independent contractors

 

Persons who are not under the control of the defendant.  They are hired to perform a task or produce a result.  Generally, no liability attaches for torts committed by independent contractors.  Some exceptions exist:

 

a) if the independent contractor is engaged in ultrahazardous activities (such as blasting)

b) if the duty, because of public policy, is non-delegable (such as the duty to use care in building a fence around an excavation site)

c) duties owed by a landowner to a lessee (my famous horse case)

 

NOTE: a person cannot satisfy a legal duty simply by hiring someone else to do it.

Glenmar Cinstate v. Farrell, 223 Va. 728 (1982) - not assigned

 

A police officer was directing traffic out of a drive-in theater, when an accident occurred.  The theater owners were found not to be liable.

 

If a police officer, appointed by public authority, is employed and paid by a private party, but is engaged in the performance of a public duty, his employer incurs no vicarious liability for his acts, even though the employer directs him to perform the duty.

 

An independent contractor is one who undertakes to produce a given result without in any way being controlled as to the method by which he attains that result.  One of the means of ascertaining whether or not the right to control exists is the determination of whether or not, if instructions were given, they would have to be obeyed.

 

J...v. Victory Tabernacle Baptist Church, 236 Va. 206 (1988)

 

The defendant-church hired an employee who was recently convicted of aggravated sexual assault on a young girl, for which he was on probation (with the condition that he not be involved with children).  The employee repeatedly had sexual intercourse with the 10-year old daughter of the plaintiff-parent.

 

There is no requirement that the hired employee injure another through negligence.  Indeed, it was the danger that he would act intentionally to injure a young girl that should have been foreseen.  A criminal or intentional act by the employee does not relieve the employer of liability, as this was not a respondeat superior situation.  It was really a case of negligent hiring.

 

126. Parent=s liability for the acts of children

 

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 known by the parents).  Appellant alleged that the parents= negligence was their failure to institutionalize the child or to severely curtail his activities.

 

In the absence of a principal-agent relationship, the fact of paternity alone does not establish in Virginia liability on parents for the torts of their minor child.

>The 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 (separate liability for both public and private property).

 

A parent may be considered negligent in allowing a child to do something unreasonably dangerous (under the theory of negligent entrustment).

 

127. Automobile owner=s liability for negligence of driver

 

Virginia does not hold the owner liable for the torts of a person driving his car.  Some jurisdictions hold both the owner and the driver liable.

 

And others follow the family purpose doctrine in which the owner is liable for torts by immediate family or household members who are driving with the owner=s permission.

 

The tort of negligent entrustment is not vicarious liability.  It is the tort of allowing an incompetent person to handle a dangerous instrumentality.  Both would then be liable.

 

Hack v. Nester, 241 Va. 499 (1991) - not assigned

 

Defendant-owner lent his car to the defendant-driver, who went into town, consumed a pitcher of beet and collided with the plaintiff on the way back.

 

 

The owner could be liable only if he knew or should have known that the driver was addicted to alcohol, o had the habit or drinking and be likely to drive while intoxicated.

 

This was not shown here.  The fact that she knew that he would occasionally drink enough alcohol to affect him did not establish that she had knowledge that he would likely drink and drive her car.

 

NOTE: the car had a bad headlight.  But the owner is not liable for the negligent entrustment of a defective vehicle unless the defect was the cause of the accident (which was not the case here).

 

128. Dramshop actions

 

A dramshop statute imposes civil liability on tavern keepers when their patrons become intoxicated and injure a third party.

 

Virginia follows the common law in not holding a tavern keeper liable.

 

Virginia does have a statute making it a misdemeanor to sell alcohol to an intoxicated person, but this does not impose civil liability for injuries to third persons by that intoxicated person.

 

A federal case found that the above statute (Alcohol Beverage Control Act) does not create a dramshop negligence action even if the patron is a minor.

 

Case #30 - Williamsburg v. The Old Brogue, 232 Va. 350 (1986)

 

A customer at a public bar consumed prodigious amounts of alcohol to her by the defendant=s employees and then negligently caused an automobile accident in which the plaintiff was severely injured.

 

Individuals, drunk or sober, are responsible for their own torts, and drinking the intoxicant, not furnishing it, is the proximate cause of the injury.

 

The violation of the Alcoholic Beverage Control Act does not create a dramshop action.  The violation of a statute does not constitute negligence per se

unless the person injured is a member of the class for he whom the act was enacted.

The Alcoholic Beverage Control Act is a licensing act and is not a public safety measure.  Thus, a person injured by an intoxicated person is not a member of the class for whose benefit the provision was enacted.

 

CHAPTER 5 - DEFENSES TO NEGLIGENCE

 

129. Contributory negligence

Plaintiff was also at fault in causing his own injury.  It is an affirmative defense and an absolute one in Virginia.

 

Virginia allows the defense only if it is pleaded as an affirmative defense or if the defendant=s own evidence proves it.

 

It will be a defense to simple and gross negligence - but it will only be a defense to wilful and wanton negligence if the contributory negligence was also wilful and wanton.

 

It will not be a defense to intentional torts.

 

130. Imputed contributory negligence

 

In situations in which a person is vicariously liable for the negligence of another (ie. Employer-employee), the defense of contributory negligence will also be imputed to that person.  So if an employee is contributorily negligent, an employer suing a third person for negligence will be barred if his employee was contributorily negligent.

 

131. Rescue (as an exception to the defense of contributory negligence)

 

The doctrine of rescue is in reality a limitation on the plaintiff=s (rescuer=s) contributory negligence.  If a rescuer is contributorily negligent and is injured in the rescue attempt, his contributory negligence will not be a bar to his recover unless he acted rashly or recklessly.

 

Case #31 - Nelson v. Pendleton, 214 Va. 139 (1973)

 

Pendleton was caring for a child who fell on dangerous basement steps.  The child=s grandfather could not recall if he had properly latched the door to the basement before he left that morning.  Pendleton arrived and was there all morning with the children when she heard the child call from the basement steps.  She went to her and the child grabbed Mrs. Pendleton as if to hug her. They lost their balance and fell to the concrete floor below.

 

Mrs. Pendleton testified that she intended to check the latch before the accident but had not done so.  While the grandfather was probably negligent in failing to latch the door, Mrs. Pendleton cannot recover against him because her own prior negligence (in failing to inspect and latch the door) contributed to the peril which necessitated the rescue attempt.

 

132. Doctrine of sudden emergency

 

Conduct in an emergency which was not caused by the defendant will be judged by a reasonable person acting in that emergency.  But if you caused the emergency (or should have anticipated it), you will be judged objectively as if the emergency did not exist.

 

Case #32 - Thibodeau v. Vandermark, 234 Va. 15 (1987) - Plaintiff was a passenger in the defendant=s car.  The plaintiff told the defendant that he always drove 70 m.p.h. on that road even though the posted speed limit was 35.  Defendant increased his speed and was unable to slow down as they approached a curve because his accelerator got stuck due to a broken spring.  They crashed.

 

It was error to give a sudden emergency instruction as the defendant caused or at least contributed to the emergency.  There was no sudden emergency as a matter of law.

 

Howell v. Cahoon, 236 Va. 3 (1988) (not assigned) - The defendant was driving his pick-up on a 50 m.p.h. two-lane road and tried to pass a car in front of him.  The car sped up and slowed down preventing him from passing.  He then felt he could pass but he no longer had a passing lane.  He tried anyway and collided with an oncoming vehicle.

 

This was not a case of sudden emergency.  A party=s negligence need not be the sole cause of the emergency to prohibit such an instruction.  The defendant had more than the length of 3 football fields to complete his passing attempt or to apply his brakes and return to his lane.  This was clearly a cause of the emergency.

 

Bentley v. Felts, 248 Va. 117 (1994) (not assigned) - Under the doctrine of sudden emergency, the defendant=s loss of power-assisted brakes (due to his car stalling) was not such an emergency.  This happens occasionally -- and the defendant should have been able to stop the car in the spite of the lack of power.

 

133. Assumption of risk

 

A natural companion to contributory negligence.

The plaintiff must in fact have been aware of the danger caused by the defendant=s negligence.  And he must then voluntarily assume the risk of that danger.

 

It does not apply to inherent hazards not arising from negligence (ie. Going to a baseball game and getting hit by a batted ball).  There is no negligence there to assume.

 

The two defenses are often plead alternatively.  Most situations are arguably one or the other.  Either you saw the danger and voluntarily assumed it -- or you didn=t see the danger but you should have.

 

Contributory negligence implies carelessness whereas assumption of risk implies venturesomeness.

 

Assumption of risk can be a defense to strict liability crimes.

 

Case #33 - VanCollum v. Johnson, 228 Va. 103 (1984) - The plaintiff was visiting her mother (age 82) at her home.  The defendant mistakenly turned on the wrong burner on the stove and set a pan of grease on fire.  The plaintiff wrapped a towel around the pan and ran outside where the wind blew the flames back toward her and burned her.

 

The plaintiff was not deemed to have assumed the risk because she had no reasonable alternative.

 

Case #34 - Greater Richmond Transit Company v. Wilkerson, 242 Va. 65 (1991)

The plaintiff entered a bus which was waiting at a stop.  The driver was not in the bus but the door was left open to allow passengers to enter and await the driver=s return.  The bus began to roll backwards and the plaintiff jumped off, breaking her leg.

 

The plaintiff was not deemed to have assumed the risk because the choice to jump was not voluntary.  The alternative (remaining on the bus) was not one which she could reasonably be required to accept.

 

Case #35 - Monk v. Hess, 213 Va. 244 (1972) - Hess and Lark (the deceased defendant - Monk is Lark=s estate=s administrator) had been drinking and driving together during the evening.  Others had ceased riding with Lark because of his driving.  After a boastful remark by Lark about driving 160 m.p.h., Hess said he >could stay in a car as long as anybody could at any speed.=

 

They were both killed in a single car accident.  The investigating trooper testified that he marks left by the vehicle began at the center line of the highway and then went toward the left.  There were 60 feet of skid marks on the pavement followed by 170 feet on the shoulder of the highway to the point of impact with a rockfill.  After impact, the car continued for an additional 67 feet before it came to rest.  The vehicle was airborne for at least 20 feet after striking the rockfill.

 

The plaintiff=s remarks clearly evidenced a venturesome spirit and amounts to assumption of risk.

 

Case #36 - Amusement Slides v. Lehmann, 217 Va. 815 (1977) - Plaintiff was injured when he went on a water slide at an amusement park.  The slide required an employee to spray water on the slide when a rider was going too fast in order to slow him down. The employee failed to do this and the plaintiff went airborne and was injured when he landed.

 

While there is some assumption of risk in going on a water slide, the plaintiff did not assume the risk created by the negligent failure of the defendant=s employee to spray water on the slide.  The plaintiff was justified in believing that the slide was safe providing instructions were followed.

 

134. Contributory negligence and assumption of risk compared

 

Case #37 - Budzinksi v. Harris, 213 Va. 107 (1972) - Debra Budzinski, age 14, went on a date with Laurie Harris, with whom she had never before had a date.  Another couple (Debra=s cousins), Calvin and Becky, went with them.  That afternoon, Calvin and Laurie each drank 4 cans of beer out of Debra=s sight.  They also had one or two beers in her presence at Calvin=s house, after which they ate some food.

 

They left for a dance around 6:00 or 7:00 p.m. in Laurie=s car.  On the way, Laurie bought 18 cans of beer.  Finding few people at the dance, the drove around, twice returning briefly to the dance before moving on again.  The two boys drank 5 or 6 beers each, Becky drank one and Debra drank some.  About 11:00 p.m., they went to the Dairy Isle to get something to eat.  The two boys drank some whisky from a friend=s bottle.  There was no evidence that Debra saw them do this.

 

Someone at the Dairy Isle asked Laurie to go to Amherst for beer where it could be purchased until midnight.  There was no indication that Debra was aware of this request. Laurie took off >burning rubber= with Debra in the front seat and Calvin and Becky in the back.  The car reached 80-100 m.p.h. and was wrecked about a mile down the road.

 

There was evidence that earlier in the evening, Laurie had driver fast but had slowed down when Calvin and Becky asked him to do so.  They testified that there was nothing unusual about Laurie=s driving before they stopped at the Dairy Isle.  Calvin testified that he did not believe that anyone in the car had time to say anything to Laurie about his driving between the Dairy Isle and the scene of the accident, and Becky testified that she did not speak out because she was >frozen.=

 

The Court distinguishes contributory negligence from assumption of risk.  One who elects to ride with a driver knowing that he is intoxicated and fully appreciating the danger has assumed the risk.  And one who knows or should have known of the driver=s intoxicated condition and elects to ride with him, and remains in the car after a reasonable opportunity to leave is contributorily negligent.  Thus, knowledge of the risk is unnecessary if one should have known of it existence.

 

In this case, it was a jury question as to contributory negligence.

 

>There was evidence that, after the 4 young people left the Dairy Isle, Debra had neither time nor opportunity to protest Laurie=s driving or leave the automobile before the accident occurred.  Furthermore, there was evidence that Laurie had not operated the vehicle negligently before leaving the Dairy Isle.  The jury could find that there was nothing to put Debra on notice that Laurie=s ability to operate the car had been or was likely to have been impaired by his drinking. Her cousins, Calvin and Becky, who knew Laurie much better than she did and had seen him drink whiskey at the Dairy Isle, showed no reluctance to continue as passengers in his car. Certainly we cannot say that because of his drinking, Laurie=s ability was impaired and that Debra knew or should have known this and yet continued to ride in the car, as we must in order to her contributorily negligent as a matter of law.=

 

>Moreover, even if Debra knew that Laurie=s ability to drive was impaired, she might not have been negligent in continuing to ride with him in light of the alternatives available to her..

 

And as to the issue of assumption of risk, >No evidence was introduced which indicated that Debra expressly assumed the risk of riding with Laurie, but the quantity of beer which he consumed in her presence was sufficient to raise the issue of implied assumption of risk.  However, we cannot say that, as a matter of law, Debra knew that Laurie=s ability was or was likely to be impaired and fully appreciated the risk of riding with him.  As is usually true in cases of implied assumption of risk, a jury question was presented on these issues.=

 

Case #38 - Colonial Natural Gas v. Sayers, 222 Va. 781 (1981) - Plaintiff was a tenant in an apartment complex. He was jogging along a footpath that was commonly used by the tenants when he fell in a ditch which was caused by the ground having settled over a gas line installation.  He had not used the path during the past 6-8 months and was unaware of the existence of the ditch.  He was jogging at night and could see the path from the reflection of the street lights.

 

This was not assumption of risk as a matter of law.  There must be knowledge of the risk before it can be voluntarily assumed, and he was unaware of the existence of the ditch.

 

The issue of contributory negligence was for the jury.  The ditch was not so obvious that he was negligent in failing to see it - nor was he contributorily negligent as a matter of law for trotting rather than walking and for failing to use a flashlight.

 

Other case - Rouse v. A & P, 216 Va. 293 (1975) - Defendant went to watch the fireworks at a nearby amusement park in Norfolk.  He went into an unlighted field from the A & P parking lot using a well-defined path.  On his return, he took a shortcut into an unknown area where, attempting to wade through the brush, he tripped over a chain, which had been overgrown by the brush.  This had been erected by the A & P 12 years before to keep cars off the field adjacent to their parking lot.

 

This was contributory negligence as a matter of law.  This was not the conduct of an ordinarily prudent person exercising reasonable care for his own safety.

 

135. Last clear chance

 

Nullifies the defense of contributory negligence.

 

Virginia - if the plaintiff is in a position of peril (due to his own negligence) from which he can escape (but is inattentive to the danger), the defendant will still be liable in spite of the plaintiff=s contributory negligence if he actually saw the plaintiff=s peril in time to avoid the accident.

 

But if the plaintiff is in a position of peril (due to his own negligence) from which he cannot escape, the defendant will still be liable in spite of the plaintiff=s contributory negligence if he saw or should have seen the plaintiff=s peril in time to avoid the accident.     

 

NOTE: If the defendant cannot avoid the accident because of his original negligence (ie. Going 100 m.p.h.), he in fact does not have the last clear chance.  It is only when, in spite of his original negligence that he could still stop, is he considered to have had the last clear chance.

 

Example - the King Street case

 

136. Comparative negligence

 

This measures and compares the negligence of both parties and allows the jury to reduce the plaintff=s recovery by the amount of his negligence.

 

This is a much fairer approach than that of contributory negligence.

 

Virginia only follows the doctrine of comparative negligence in railroad crossing cases (by statute if the RR fails to blow a whistle or ring a warning bell).

 

137. Statute of limitations

 

The action must be commenced within 2 years of the injury or damage (even if the victim is unaware of it).

 

But concealment of the injury or act by the defendant (or being underage or otherwise under a disability) will toll the running of the statute.

 

138 Parental immunity

 

There is parental immunity for personal injury (except in automobile accident cases) -- no immunity for property damage.

 

Children are not immune from tort liability and can be sued (although often are judgment-proof).

CHAPTER 9  - STRICT OR ABSOLUTE LIABILITY

 

139 - Doctrine of strict liability

 

Liability without fault.  Is limited to animals, dangerous activities and products liability.

 

140. Animals

 

Trespassing animals - the owner is liable for the damage done by the trespass of his animals as long as it was reasonably forseeable.

 

Wild animals - There is strict liability for those who own wild animals. This category would include domestic animals, including livestock, with known dangerous propensities.

 

Domestic animals - There is liability for the damage caused by domestic animals only if these animals have exhibited vicious tendencies (ie. One bite).  But some states have imposed dog bite statutes which impose strict liability even without prior knowledge of the animals vicious tendencies.

 

141. Abnormally dangerous activities

 

(1) the activity must create a high risk of substantial harm, which risk cannot be eliminated through the exercise of reasonable care

 

(2) the activity or substance must not be commonly undertaken or used

 

(3) the activity must have been inappropriately used in the place in the which the injury happened

 

(4) the activity=s hazards must outweigh the activity=s benefits to the community.

 

Proximate cause - The plaintiff=s injuries must have been reasonably forseeable as a consequence of the plaintiff=s conduct.  So even though there is strict liability (so there is no need to prove negligence), the damage must still have been reasonably forseeable.

 

Reason for the doctrine - Society is simply not willing to shoulder the risk for abnormally dangerous activities that qualify -- and the person performing them can carry insurance as protection.

 

Defenses - both contributory negligence and assumption of risk are available to the defendant in strict liability cases.

 

CHAPTER 10 PRODUCTS LIABILITY

 

As a matter of public policy, products liability places the risk of harm created by unreasonably dangerous products upon those who make and sell them.  According to the text, strict liability began in this area in 1962 -- prior to that time, contract and negligence law applied. 

 

142. Products liability - elements

 

(1) The product must contain a defect rendering it unreasonably dangerous to use.  This might be by design, by improper product maintenance or by the manufacturer or seller=s failure to warn the buyer of hazards in using this product.

 

(2) The manufacturer or seller must be engaged in the business of selling products like the defective one.  This includes the manufacturer, retailer, assembler or wholesaler.

 

Ex. - a theater may be held strictly liable for selling rotten candy.  Even though the theater is not in the primary business of selling candy and similar products, it is a retail supplier of those products.

 

Ex. - if a boiler in use on a shoe manufacturer=s land explodes, the shoe manufacturer is not strictly liable to a person injured in the explosion because the shoe manufacturer is not a commercial supplier of boilers.

 

 

(3) The product cannot be substantially changed from the time it left the manufacturer or seller and reached the ultimate user.

 

(4) The defect must proximately cause the ultimate user=s injuries.  This means that the danger must have been reasonably forseeable. And the negligent failure of an intermediary to detect the problem will not void the supplier=s strict liability (will not amount to an intervening cause).

 

(5) The ultimate user must use the product in a way in which it was designed or intended.

 

NOTE: this applies to products, not services -- so if an airplane crashes due to pilot error, negligence must be established --- but if the plane is defective, strict liability will apply.

 

142.A - Defenses

 

Contributory negligence is not a defense to products liability.  This might include failing to notice a defect.

 

Assumption of risk is a defense to products liability.  Once a defect is in fact seen and ignored, assumption of risk occurs.  This would include failure to follow directions.

 

Thus, it is not a defense to fail to notice a defect -- but once noticed and ignored, there would be a defense.

 

No privity of contract required - The injured person need not be the original purchaser .  This would include any forseeable plaintiff - the user, consumer or bystander (such as a pedestrian struck by an automobile with faulty brakes).

 

143. Factors in determining if product is defective

 

(1) usefulness and desirability of the product

(2) availability of safer alternatives

(3) the dangers of the product

(4) liklihood of injury and its probably seriousness

(5) obviousness of the danger

(6) normal public expectation of danger (especially for established products)

(7) avoidability of injury by care in the use of the product (including the role of instructions and warnings)

(8) feasibility of eliminating the danger without seriously impairing the product=s function or making it unduly expensive.

 

Ex.: Although people always cut themselves on sharp knives, they are of great utility.  Since there is no way to avoid the harm without destroying the utility of the product, and the danger is apparent to users, the product is not considered unreasonably dangerous.

 

But a power lawnmower that has no guard over the opening from which the cut grass is blown may be considered unreasonably dangerous even if has appropriate warnings to keep hands and feet away and that rocks may be ejected from the opening.  While the danger is within the expectations of the user, a court will compare the harm caused by the product with what it would cost to put a guard on the opening and consider whether the guard would impair the machine=s operation.

 

144. Misuse

 

Some products may be safe if used as intended, but may involve serious dangers if used in other ways. Manufacturers must anticipate reasonably forseeable uses even if they are a misuse of the product.

 

Ex.: Although a screwdriver is intended only for turning screws, a manufacturer must anticipate that they are commonly used to pry up lids on paint cans and make them reasonably safe for that use as well as their intended use.

 

Ex.: Liquid furniture polish provided for home use may be fit for its intended use, but the manufacturer must anticipate that it will be used around small children who may play with the bottle and spill or drink its contents.  Thus, the manufacturer may have to design a product that is either safe when drunk or that has a child-proof top.  A simple warning would not suffice.

 

145. Implied warranty of merchantability

 

This means that the goods are generally fit for the ordinary purpose for which the goods are used.  Failure to reach this standard makes the defendant liable without the need to prove negligence.

 

146. Implied warranty of fitness for a particular purpose

 

This arises when the seller knows or has reason to know the particular purpose for which the goods are required -- and that the buyer is relying on the seller=s skill or judgment to select or furnish suitable goods.

Ex.: Using an snow plow on a garden tractor to grade a field.

 

 

Privity in implied warranty cases - may be limited to the buyer, his family, household and guests, who are injured by the product.  Courts differ here.

 

Defenses in implied warranty cases - same as in strict liability cases  - no contributory negligence for failing to discover the breach of warranty  - but assumption of risk will apply after learning of the breach.

 

CHAPTER 11 SPECIAL TORT ACTIONS

 

147. Nuisance

 

Private nuisance - an unreasonable and substantial interference with another=s use and enjoyment of his or her land.  

 

It will not be considered substantial if based on the plaintiff=s hypersensitivity

or the specialized use of his property.

 

It will not be considered unreasonable unless the severity of the inflicted injury outweighs the utility of the defendant=s conduct.  Every person is entitled to use his land in a reasonable way, considering the neighborhood, land values and the existence of any alternative courses of conduct open to the defendant.

 

The reasonable man test is applied. It is based on the community standard for persons living in the vicinity of the nuisance activity.

 

An interference with the plaintiff personally is not a nuisance.

 

They often involve physical effects on the land, such as vibrations, pollution and flooding.

 

They may produce health hazards, such as poison gas, hazardous waste, smoke, dust and odors.

 

They may also include unwanted associations with neighboring uses, such as houses of prostitution or gambling casinos.

 

148. Distinguished from trespass to land

 

In trespass to land, there is interference with the landowner=s exclusive possession by a physical invasion of the land.  In nuisance, there is an interference with the use or enjoyment of the land.  Nuisance does not require physical entry upon the land.

 

Public nuisances - they are nuisances which affect the public in general rather than a private individual.  They unreasonably and substantially interfere with the public use and enjoyment of legal rights common to the public.

 

They often involve immoral activities, such as gambling, prostitution, pornography and alcohol.  They could also involve noise pollution (as in airport noise).

 

149. Remedies

 

Abatement - the defendant is ordered to stop the activity.

 

Injunction - the procedure by which abatement is enforced (can be permanent or temporary - TRO, normally pending litigation).

 

Contempt - for failure to abide by an injunction

 

Abatement by self-help - one has the right to enter upon the defendant=s land and personally abate the nuisance after notice to the defendant and his refusal to act.  Only a reasonable amount of force may be used to accomplish the abatement.

 

A public nuisance may also be abated by a private person but only if he has suffered some unique damage -- otherwise it must be dealt with by public authority.

 

Damages

 

For a private nuisance or for a public nuisance where the plaintiff has suffered some unique damage.

 

Defenses

 

Legislative authority - if the conduct is consistent with a zoning ordinance or other legislative authority, this is strong evidence (although not conclusive) that the activity is not a nuisance.

 

Conduct of others - no one actor is liable for all the damage caused by the concurrence of his acts and others -- so that if 10 steel mills are polluting a stream, each mill will be liable only for the pollution it causes.

 

Coming to the nuisance - can be a close call.  But the defendant cannot condemn the surrounding premises to endure the nuisance.  A purchaser is entitled to the reasonable use or enjoyment of his land to the same extent as any other owner provided he buys in good faith and not for the sole purpose of a harassing lawsuit.

 

WRONGFUL DEATH

 

150. Elements

 

Any tort theory which would have supported a personal injury action will support a wrongful death action.

 

151. Groups covered in Virginia

 

Virginia follows the majority of states in limiting the cause of action to near relatives to cover their loss:

 

1) spouse, children and grandchildren of deceased children

 

2) if there be none such, then to parents, brothers and sisters

 

3) but if the deceased has left both a surviving spouse and a parent or parents, but no child or grandchild, then the award shall be split between such surviving spouse and parent or parents.

 

152. Damages in Virginia

 

1) sorrow, mental anguish and solace, which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent

 

2) compensation for reasonably expected loss of income of the decedent, and services, protection, care and assistance provided by the decedent

3) expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death

 

 

4) reasonable funeral expenses

 

5) punitive damages may be recovered for reckless conduct

 

Creditors of the decedent have no claim against a recovery in a wrongful death action.

 

153. Defenses

 

The defendant may invoke any defense which he would have been able to invoke had the decedent survived and this had been a personal injury action (such as assumption of risk or contributory negligence).

 

PRENATAL HARM

 

154. Elements

 

If one causes injury to the fetus which is then born alive, he is liable in damages to the child.  If the child then dies, a wrongful death action will lie.

 

But if the child is stillborn, Virginia does not allow recovery relative to the child.  That would be considered an injury to the mother.

 

In the case of a stillbirth, the mother may not recover for the anticipated loss of the child=s society, companionship, comfort or guidance, nor may she be compensated for an expected loss of income of the child, or for services, protection, care or assistance to be provided by the child had he lived.

 

Wrongful life

 

Lawsuits for the wrongful birth of a child.  This is usually a medical malpractice case for a negligent sterilization operation.

 

Damages - include the medical costs associated with the pregnancy and birth, the pain and suffering due to the unwanted labor and delivery as well as the extra expenses associated with the fact of a deformity (if one exists).

 

Virginia rejects the idea that damages should include the costs of raising the child.

 

TORT IMMUNITIES

 

Absolute defenses

 

Sovereign immunity

Young children

Statutes of limitations

 

INTERSPOUSAL TORT IMMUNITIES

 

155. Abolished in Virginia

 

In Virginia, either spouse may now sue the other in tort.

 

Parent-child immunity has been retained, except for intentional misconduct and when there is insurance coverage (such as auto accidents).

 

It applies only to parent-unemancipated child relationships.  Immunity does not apply to property actions, only to personal injury actions.