February 2017 Third Example Ten-point Answers to Virginia Essay Questions

February 2017 - QUESTION 6 – VIRGINIA BAR EXAMINATION

      Larry was the long-time general manager of an upscale hotel in Blacksburg, Virginia, called The Palace. On behalf of The Palace, Larry hired Conway, a general contractor, to completely remodel the hotel's library. Conway prohibited all Palace personnel and guests from entering the library while it was being renovated. Larry left it in Conway's hands to complete the job, did not check on the progress of the work, and only wanted to go into the library for the final inspection.

      One evening, Stone Concepts (SC), a subcontractor hired by Conway to create a massive stone fireplace, was working in the library. One of the SC employees had blocked the main entrance leading from the lobby into the library. There was a side entrance to the library from the adjoining cocktail lounge, which offered a shortcut to the restroom on the other side of the library. SC had failed to block that entrance. Gerry, a guest who needed to use the restroom, walked into the library through that side entrance, not realizing that the room was under construction. However, when he entered the library, he saw that there were materials and equipment on the floor. One SC worker, who did not speak English, rushed toward Gerry to prevent him from entering the construction area any further. Gerry, alarmed by the worker's approach, began to back-peddle and tripped over some larger pieces of stone to be used in the fireplace. Gerry injured his right shoulder when he fell.

      Gerry then stumbled out of the library and saw Junior, Larry's son, who worked part time as a gardener at the hotel. Gerry and Junior had attended high school together and had always vehemently disliked each other. Gerry began to verbally abuse Junior about the "dirty" and "dangerous" hotel and swore he would sue. These comments enraged Junior, and he punched Gerry in the face, fracturing his jaw.

      Gerry has retained an attorney to file suit against The Palace for his personal injuries. Gerry says Junior has no money of his own, and he does not want to sue SC because the owner is a friend of the family. The Complaint alleges that The Palace is (i) indirectly liable for the negligence of SC for leaving the stone where Gerry could trip over it, (ii) directly liable for negligence because of the unsafe condition in the library, and (iii) indirectly liable for battery committed by its employee, Junior.

       (a) Is The Palace vicariously liable for injuries to Gerry resulting from the alleged negligence of SC in leaving the stone where Gerry could trip on it? Explain fully. (b) Is The Palace directly liable to Gerry for the alleged unsafe conditions in the library? Explain fully. (c) Is The Palace vicariously liable for the battery committed on Gerry by Junior? Explain fully.

  (a) Is The Palace vicariously liable for injuries to Gerry resulting from the alleged negligence of SC in leaving the stone where Gerry could trip on it? Explain fully.
     
  (b) Is The Palace directly liable to Gerry for the alleged unsafe conditions in the library? Explain fully.
     
  (c) Is The Palace vicariously liable for the battery committed on Gerry by Junior? Explain fully.

February 2017 - QUESTION 6 – EXAMPLE ANSWER #1

(a) The Palace is not liable for injuries to Gerry resulting from the alleged negligence of SC in leaving the stone where Gerry could trip on it. SC was a subcontractor working for Conway, who himself was an independent contractor as related to the Palace. Whether he can trace his injury back to the palace is a matter of whether Gerry can argue convincingly that Conway was in an employer-employee relationship with The Palace instead of an independent contractor relationship, as he would then be able to hold The Palace vicariously liable for his injury as a result of SC's alleged negligence. The facts indicate that Larry, the general manager of the Palace, left Conway to complete the library renovation by his own means, did not oversee the work he was doing (until a final inspection to check if the quality of the work was up to standards), and overall let Conway handle the duties and responsibilities of the remodeling job with little interference on the part of The Palace. Furthermore, Conway prohibited all Palace personnel from entering the library during the course of the renovations. As such, it is likely that an independent contractor relationship was established instead of an employer-employee relationship, and therefore it is unlikely that Gerry will be able to trace back his injury from the independent contractor's subcontractor SC to The Palace in an attempt to hold it vicariously liable for the injury sustained.

(b) The Palace may be directly liable to Gerry for the alleged unsafe conditions in the library if it is found that the Palace did not sufficiently block off the library from general guests or provide adequate warning that it was a construction zone with potentially hazardous conditions. The facts state that main entrance to the library had been blocked off, but the side entrance was left open so that unaware guests could accidentally walk into the construction zone, as Gerry has done here. Because Gerry immediately saw that the room was under construction after entering, it would seem that it was readily apparent that the area was under construction to even a casual observer. The only reason that Gerry fell was due to his back-peddling after being startled by the employee working for SC, the subcontractor. But for this act of the employee of SC rushing toward Gerry the facts do not demonstrate that he would have tripped and injured himself. Gerry would need to show that The Palace owed him a duty and breached that duty. Because Gerry was an invitee, the Palace would have a duty to inspect and make safe and known conditions or conditions that it should have known to be dangerous and that were inconspicuous to the hotel's guests. Because it seems that it would have been obvious to the average guest and because it is not shown that he would have tripped had he not been startled by the employee of SC, it seems unconvincing that the hotel breached its duty to keep the hotel in safe condition. At any rate, the hotel should probably have ensured that it played an active role in blocking off each of the entrances to the library to prevent any questions as to whether it was properly sectioning off the construction zone from its patrons in order to avoid potential lawsuits such as this one. Putting in place some signage or physical barriers would suffice to expressly alert the hotel guests of the potentially danagerous conditions and would be advisable for the hotel in the future.

(c) The palace would likely not be vicariously liable for the battery commited on Gerry by Junior on account of the tort being committed outside the scope of Junior's employment with the hotel. Unlike Conway, who was an independent contract and not an employee of the hotel, Junior is almost certainly an employee at the hotel even though he only works part time. He is a gardener, which indicates a job that is not likely to be completed in a short timeframe more indicative of an independent contractor and also is related to Larry, the long-time general manager of the hotel, so probably has worked out the hotel for some substantial duration of time. Because Junior is an employee of the hotel and not an independent contractor, this means that Gerry can hold the Palace vicariously liable for the tort of Junior if he can demonstrate that Junior was working in his official capacities and furthering the goals of his employer when he committed the battery. An intentional tort such as this has been held in Virginia to be committed pursuant to an employee's official duties in cases such as a bouncer at a nightclub committing a battery, but it is hard to fathom a reason why the hotel's gardener would need to interact with a hotel patron in such a manner pursuant to his responsibilities as an employee of the hotel. Consequently, because Junior will likely be found to have ated outside the scope of his employment duties with the Palace and not in furtherance of its aims and goals, it will be unlikely that the Palace would be held vicariously liable for the tort committed by Junior.


February 2017 - QUESTION 6 – EXAMPLE ANSWER #2

(a) The Palace is not vicariously liable for the injuries to Jerry

A Principal is vicariously liable for the authorized actions of his Agent. In order to have an agency relationship there must be (i) assent of the parties to be in the relationship; (ii) a benefit to the principal; and (iii) control excercised by the principal over the agent.

A Principal is generally not vicariously liable for the actions of Independent Contractors. There is an exception to this general rule for activities that are abnormally dangerous. Furthermore, a principal may be estopped from denying vicarious liability for an independent contractor where the independent contractor reasonably appeared to be an agent.

A Principal is not vicariously liable for the actions of the subcontractors of their Independent Contractors. The contractors are liable for the actions of their subcontractors where the Principal does not contract with the subcontractor.

Under the facts of this case, Conway was an independent contractor for The Palace. There was no agency relationship because the facts state Conway "prohibited all Palace personnel" from entering the library. Accordingly, the Palace would not be able to excercise control over the manner in which the Contractors did their job. Without control, Conway is not an agent.

Furthermore, Conway contracted with Stone Concepts and may be held liable for injury caused by their negligence. Therefore, the palace will not likly be vicariously liable for the injury resulting from the actions of the subcontractor.

If the Palace is estopped from asserting Stone Concepts was not their agent because they appeared to be in an agency relationship. Any judgment against the Palace under vicarious liability will be recovered from Conway. Stone Concepts was acting as Conways agent and Conway is liable for injuries caused by their conduct.

(b) The Palace is directly liable for the alleged unsafe conditions in the library.

A common carrier, like a hotel, owes it's guests elevated duty of care. Hotels have a duty to conduct inspections and warn of artificial and natural conditions they know about or should know about.

Under the facts of this case, the Palace employees were not supposed to enter the library due to the construction. However, the Palace still had a duty to inspect and warn of dangerous conditions. The duty to warn includes placing warnings in front of all entries to the construction area to ensure their guests are aware of the danger. Furthermore, the facts state that Gerry did not realize the room was under construction when he walked into it. This is further evidence of a warning being necessary to prevent injury to guests.

Therefore, the Palace will be held directly liable for the unsafe conditions in the library as a result of their failure to warn of the danger.

(c) The palace is not vicariously liable for the intentional tort committed by their employee.

An employer is vicariously liable for the actions of their employees that are within the scope of employment and result in injury. An employer is generally not liable for the intentional torts of their employees that are outside the scope of employment. The exception to this rule is where the tortious activity falls within the scope of employment, like with a bouncer or security guard. Battery is an intentional tort. An additional exception where liability for the torst of an employee may arise would be a companies negligent hiring of an employee.

Under the facts of this case, Junior is a gardener who works part time at the hotel. Junior was not acting in the scope of his employment when he punched Gerry in the face and fractured his jaw. There is nothing in the facts which show Junior was a violent person or the hotel acted negligently in hiring them. Therefore, because Junior was not acting within the scope of his employment and the suit is being brought due to an intentional tort, the Palace will not be vicariously liable.