Torts Essay Rules

Question 1

An employer is liable for torts committed by an employee if

Answer 1

The torts are committed within the scope of employment

Question 2

There generally is no liability for the torts of an IC unless

Answer 2

1) The activity is inherently dangerous; or

2) The duty is nondelegable on public policy grounds

Question 3

Whether an individual is an employee or independent contractor depends on how much

Answer 3

Control is exerted over their work

Question 4

While public policy imposes a nondelegable duty on a business to keep its premises safe for customers, this typically involves

Answer 4

Routine cleaning, maintenance, and repair activities in areas open to the customers, where the premises owner will more likely have an input over operation of these activities

Question 5

Generally, the kind of duty owed by a landowner to those on the premises depends on whether the individual of the premises is

Answer 5

A trespasser, licensee, or invitee

Question 6

An invitee is a person who enters the premises in response to ________, such as someone who enters for a purpose connected with the business of ________

Answer 6

An express or implied invitation of the landowner; the landowner

Question 7

T/F An invitee is a person who enters the premises in response to an express or implied invitation of the landowner, such as someone who enters for a purpose connected with the business of the landowner

Answer 7

True

Question 8

An invitee is a person who enters the premises in response to ________ or ________, such as someone who

Answer 8

An express or implied invitation of the landowner; enters for a purpose connected with the business of the landowner

Question 9

Innkeepers are required to exercise

Answer 9

A very high degree of care toward their guests

Question 10

A landowner owes an invitee

Answer 10

A general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee

This includes a duty to warn of or make safe nonobvious, dangerous conditions known to the landowner and a duty to make reasonable inspections to discover dangerous conditions

There is generally not a duty to warn if a dangerous condition is so obvious that an invitee should reasonably have been aware of it

Question 11

An employer generally will be vicariously liable for a tort committed by an employee

Answer 11

Within the scope of an employment

Question 12

An ________ is generally not considered to be within the scope of the employment. Exceptions to this rule exist when the employee is ________, ________, or ________

Answer 12

Intentional tort; furthering the business of the employer; force is authorized in the employment; friction is generated by the employment

Question 13

Assault

Answer 13

1) Act by D creating reasonable apprehension in P of immediate or offensive contact

2) Intent by D to bring about that apprehension in P; and

3) Causation

Question 14

A D intends the consequences of their conduct if

Answer 14

Their purpose is to bring about the consequences, or if they know with substantial certainty that the consequences will result

Question 15

A D intends the consequences of their conduct if their purpose is to ________ or if they know with ________ that the consequences will result

Answer 15

Bring about the consequences; substantial certainty

Question 16

A D may be liable even for an unintended injury if

Answer 16

They intended to bring about the consequences that form the basis of the tort

Question 17

A D may be liable even for an unintended injury if they intended to bring about ________ that form the basis of the tort

Answer 17

The consequences

Question 18

Doctrine of transferred intent

Answer 18

If a D intends to commit one tort against one person, but instead commits that tort or a different tort against another person, their intent transfers from one to the other, and tort to tort

Question 19

Doctrine of transferred intent (assault)

Answer 19

In the case of an assault, there is liability when a D acts with the intent to bring about either contact or the apprehension of contact in one person, but instead, causes the apprehension of contact in another

Question 20

Mitigation of damages

Answer 20

A P has a duty to take reasonable steps to mitigate damages

Question 21

In the case of PI, mitigation of damages means

Answer 21

Seeking appropriate treatment to effect a cure or healing and to prevent aggravation of injury

Question 22

A P’s failure to mitigate

Answer 22

Precludes recovery of additional damages caused by any aggravation of the injury

Question 23

Battery

Answer 23

1) An act by D which brings about harmful or offensive contact to P

2) Intent by D to bring about harmful or offensive contact; and

3) Causation

Question 24

A D is liable not only for direct contact, but also for

Answer 24

Indirect contact, meaning that it is sufficient if they “set in motion a force” that brings about a contact to the P

Question 25

A D is liable not only for ________ contact, but also for ________ contact, meaning that it is sufficient if they ________ that brings about a contact to the P

Answer 25

Direct contact; indirect contact; set in motion a force

Question 26

Negligence

Answer 26

1) Existence of a duty 2) Breach of that duty 3) That breach was an actual and proximate cause of the P's injury; and 4) Damages

Question 27

Negligence duty of care owed to

Answer 27

Foreseeable Ps

Question 28

Someone who is not within "________" from the D's conduct cannot recover

Answer 28

Zone of danger

Question 29

Does doctrine of transferred intent apply in cases of IIED?

Answer 29

No

Question 30

IIED

Answer 30

****1) An act by D amounting to **extreme and outrageous conduct** 2) *Intent* by D to cause the P to suffer **severe emotional distress, or recklessness** as to the D's conduct 3) *Causation* 4) Damages

Question 31

Outrageous conduct

Answer 31

Conduct that transcends all bounds of decency tolerated in a civilized society

Question 32

In addition to intentional conduct, the **intent element is satisfied where** the D acted in (IIED)

Answer 32

Reckless disregard of a high probability

Question 33

When the D's conduct is **directed at a third person and another claims distress**, the elements of intent and causation generally require the additional showing that (IIED)

Answer 33

1) **P was present** at the time of the conduct 2) The distress resulted in **bodily harm**, or the P was a **close relative** of the party; and 3) D knew these facts

Question 34

When D's conduct is directed at a third person and another claims distress (IIED) the elements of **intent and causation** generally require the additional showing that

Answer 34

1) P was present at the time of the conduct 2) The distress resulted in bodily harm, or the P was a close relative of the party; and 3) D knew these facts

Question 35

VA rejects the family car doctrine, so in VA, the owner of an automobile is not

Answer 35

Vicariously liable for the tortious conduct of family members who are driving with the owner's express or implied permission However, an owner may be liable for their own negligence in entrusting their vehicle to another driver

Question 36

VA rejects the family car doctrine, so in VA, the owner of an automobile is not ________ for the tortious conduct of family members who are driving with the owner's ________ or ________ However, an owner may be liable for their ________ in entrusting their vehicle to another driver

Answer 36

Vicariously liable; express; implied permission Own negligence

Question 37

Minors between the ages of 7 and 14 are presumed to be incapable of

Answer 37

Negligence

Question 38

Minors between what ages are presumed to be incapable of negligence?

Answer 38

Minors between the ages of 7 and 14

Question 39

The presumption that minors between the ages of 7 and 14 are presumed to be incapable of negligence can be

Answer 39

Rebutted, and the minor found negligent, when it can be established that the minor has the experience, intelligence, maturity, training, or capacity to conform their conduct to a standard of care

Question 40

Children are generally held to the standard of

Answer 40

A child of like age, intelligence, and experience

Question 41

A P may be denied recovery if they ________ caused by the D's acts

Answer 41

Assumed the risk

Question 42

To have assumed the risk, either **expressly or impliedly**, the P must have

Answer 42

Fully understood the nature and extent of a known risk and voluntarily assumed it [It is irrelevant that the P's choice is unreasonable]

Question 43

An employer is vicariously liable for tortious acts committed by their employees if the tortious act occurs

Answer 43

Within the scope of the employment relationship

Question 44

Although an employer typically is not liable for intentional torts committed by their employees, in certain circumstances liability may be found This includes:

Answer 44

Force authorized in the employment and intentional torts committed in the furtherance of the employer's business

Question 45

An employer is vicariously liable for tortious acts committed by their employees if the tortious act occurs within the scope of the employment relationship Generally, a worker who performs services is an employee if the employer can control both

Answer 45

What will be done and how it will be done The key factor is that the employer has the right to control the details of how the services are performed, even if the employee has substantial freedom of actions

Question 46

Generally, a worker who performs services is an employee if the employer can control both ________ and ________. The key factor is that ________

Answer 46

The employer can control both **what will be done and how it will be done** The employer has the **right to control the details of how the services are performed**, even if the employee has substantial freedom of actions

Question 47

Generally, a worker who performs services is an employee if ________

Answer 47

The employer can control both **what will be done and how it will be done**

Question 48

An employer is vicariously liable for tortious acts committed by their employees if the tortious act occurs within the scope of the employment relationship Generally, a worker who performs services is an employee if the employer can control both what will be done and how it will be done The key factor is that ________

Answer 48

The employer has the right to control the details of how services are performed, even if the employee has substantial freedom of actions [Although Larry remained on Zane's payroll when borrowed by SafeCorp, nothing in the facts suggest that Zane's had any control over what services Larry performed at Roscoe's or how he performed those services, including where he was stationed while he was there, what responsibilities he was assigned, and even what he wore to the job

Question 49

An independent contractor is one who

Answer 49

Performs services required by an employer but is not subject to the employer's control about how the services are performed

Question 50

In general, a principal will not be vicariously liable for torts committed by

Answer 50

ICs

Question 51

T/F Although, generally speaking, a principal will not be liable for the torts of independent contractors, there are exceptions, including when the IC is engaged in an inherently dangerous activity

Answer 51

True

Question 52

Courts generally find that an activity is inherently dangerous if it involves

Answer 52

A substantial risk of harm even when reasonable care is exercised, and it is not a matter of common usage in the community [Unlikely that the mere presence of armed guards in a retail store would be considered inherently dangerous]

Question 53

T/F A D may be liable to a P for compensatory damages

Answer 53

True

Question 54

T/F In addition to compensatory damages, punitive damages are available with intentional torts

Answer 54

True

Question 55

Is compensatory and punitive damages available with intentional torts?

Answer 55

Yes

Question 56

Negligence requires the showing of

Answer 56

1) A duty on the part of the D **to conform to a specific standard of conduct** for the protection of the P against unreasonable risk of injury 2) Breach of that duty 3) That the breach was an actual and proximate cause of the P's injuries, and 4) Actual damages

Question 57

When a person engages in an activity, they are under a legal duty to act as

Answer 57

A reasonably prudent person under the same or similar circumstances

Question 58

In the case of an actor who is a professional or has special skills, such as a professional bus driver, that individual is required to act with

Answer 58

The **judgment and skill of other members** of their occupation in good standing [A reasonable bus driver would follow traffic rules, including stopping at traffic lights when they are red]

Question 59

Negligence per se is

Answer 59

An **unexcused statutory violation**; in other words, it establishes the first two elements in the p/f case - a conclusive presumption of duty and breach of duty

Question 60

An employer is vicariously liable for the tortious acts committed by their employee if the tortious act occurs within the scope of the employment relationship This includes torts committed on a delivery or business trip while deviating from the employer's business to run a personal errand, where the deviation is

Answer 60

Minor in time and geographical area [An employer is not liable where the deviation is a "frolic" of the employee's own]

Question 61

An employer is not liable where the deviation is

Answer 61

A "frolic" of the employee's own

Question 62

A landowner has a duty to exercise ________ with respect to their ________ so as to avoid ________ to those ________

Answer 62

Reasonable care; activities on the land; unreasonable risk of harm; outside the property

Question 63

Generally, a D's actions are a proximate cause of an injury when they result in

Answer 63

A foreseeable harm [Reasonably foreseeable that a tree left in such a state could fall and injure someone traveling on the road, particularly because she was aware of a severe storm approaching]

Question 64

Actions of a rescuer are almost always viewed as

Answer 64

A foreseeable intervening force that does not cut off the D's liability

Question 65

The Good Samaritan statute protects individuals who provide aid to others in emergency situations from liability for

Answer 65

ORDINARY negligence

Question 66

T/F Even if acts could be characterized as negligent, the Good Samaritan statute provides a defense

Answer 66

True

Question 67

Contributory negligence applies when

Answer 67

A P 's failure to act in a reasonable and prudent manner contributes to the P's injury; in VA, it is a complete bar to recovery [However, a P engaged in rescue may take extraordinary risks without being considered contributorily negligent]

Question 68

A P engaged in a rescue may take extraordinary risks without being considered

Answer 68

Contributorily negligent

Question 69

A landowner owes an invitee a duty to use

Answer 69

Ordinary care to maintain the property in a reasonably safe condition [This duty is generally satisfied by providing a warning of dangerous conditions] [Additionally, the landowner generally does not have a duty to warn of open and obvious dangers

Question 70

Negligence per se is essentially what kind of claim?

Answer 70

A strict liability claim

Question 71

To establish a claim based on negligence per se, a P must

Answer 71

1) Prove that the D violated a statute that was enacted for public safety, (type of harm) 2) Establish that he belongs to the class of persons for whose benefit the statute was enacted (class of people), and 3) Prove that the statutory violation was a proximate cause of his injury

Question 72

T/F The Supreme Court of VA has held that the sale of alcoholic beverages is not the proximate cause of later acts committed by purchase, and thus, VA does not recognize a claim against the seller of alcohol in such circumstances

Answer 72

True

Question 73

The Supreme Court of VA has held that a common law negligence action does not lie against a vendor who provided alcoholic beverages to a person who later drove an automobile and injures a third party

Answer 73

True

Question 74

VA courts have held that if the employee steps aside from his employer's business and is engaged in an independent venture of his own,

Answer 74

The employee is no longer acting within the scope of his employment [significant departure]

Question 75

To prevail on an negligent entrustment claim in a motor vehicle case, the test of liability in VA is

Answer 75

Whether the owner of the vehicle knew, or had reason to know, that he was entrusting his vehicle to an unfit driver, likely to cause injury to others

Question 76

In motor vehicle cases involving the intoxication of the D driver, the P must prove that

Answer 76

The owner knew or had reason to know that the person to whom the vehicle was entrusted is addicted to intoxicants, or has the habit of drinking In short, the owner must know, or should have known, that the driver's habits are such that he is likely to drive while intoxicated

Question 77

T/F In a negligent entrustment case, testimony of interest parties is given lesser weight than testimony from independent witnesses

Answer 77

True

Question 78

Under the last clear chance doctrine, the P may mitigate the legal consequences of her own contributory negligence if she proves that

Answer 78

The D had the last clear chance to avoid injuring the P but failed to do so

Question 79

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

Question 80

Children engaged in adult activities are held to the same standard as an adult. In Virginia, there is an irrebuttable presumption that a child under the age of seven is incapable of negligence