July 2016 Example Ten-point Answers to Virginia Essay Questions
July 2016 - QUESTION 1 – VIRGINIA BAR EXAMINATION
Adelle's home was located on a five-acre parcel near Carterton, Virginia. Adelle's parcel fronted on a narrow country road. Just inside the property line on Adelle's parcel, there was a very large old oak tree that appeared to be dying and was leaning precariously in the direction of the road. Prompted by a weather service warning of an approaching severe storm accompanied by high winds, Adelle decided she would take the tree down. Using a chainsaw, Adelle began to cut through the 24-inch diameter base of the trunk. With wedges and anchoring ropes, she plotted the cut so as to ensure that the tree would fall back onto her land. When she had cut about halfway through the trunk, the predicted storm hit, accompanied by torrential rain and strong winds. Adelle stopped working and went back to her home to wait out the storm.
Driver, driving his car along the road and blinded by the intensity of the storm, swerved to avoid what appeared to be a flooded spot and crashed headlong into the tree. Driver was rendered unconscious. The force of the collision snapped the anchoring ropes and dislodged the wedges that Adelle had placed in the cut, but the tree remained standing.
Samara, who had been driving in the opposite direction, saw what had happened, pulled over on the shoulder, and rushed to Driver's aid. She pulled the still unconscious, bleeding Driver out of the wreckage, across the road, and into the backseat of her car, intending to take him to the closest hospital. At that moment, a strong gust of wind came up and the tree toppled across the road. It fell onto Samara's car. One of the branches struck Samara and broke her leg and several ribs. The trunk crushed Samara's car, severely injuring Driver. If Samara, instead of moving Driver, had simply ministered to him in his own car, Driver would not have been injured by the falling tree.
The following litigation ensued:
Suit # 1. Driver sued Adelle in negligence for the injuries he sustained when the tree crushed Samara's car. Adelle defends on two grounds: (i) that she breached no duty to Driver and (ii) that her acts were not the proximate cause of Driver's injuries.
Suit # 2. Driver sued Samara in negligence for the injuries he sustained when the tree crushed Samara's car.
Suit # 3. Samara sued Adelle in negligence for the injuries she suffered when the tree branch struck her. Adelle asserts the defense of contributory negligence.
|(a)||In Suit # 1, is Adelle likely to succeed on each of her defenses? Explain fully.|
|(b)||In Suit # 2, what is Samara's best defense? Explain fully.|
|(c)||In Suit # 3, is Adelle likely to succeed on her defense? Explain fully.|
July 2016 - QUESTION 1 – EXAMPLE ANSWER #1
(A) Adelle Will Not Likely Succeed on Defenses in suit by Driver
(A)(i) No breach of Duty Defense will Likely Fail
In Virginia, property owners have a duty of care to maintain their property in such a way to reasonably provide safety when portions of their property expose the public to risks. Generally, property owners would not have a duty to the public at large, but when the property have elements which threaten public space a duty of care is required. The property owner has a duty to inspect the land and rememdy defects that they know or should know are likely to present hazards to the public.
Here, Adelle's property fronts a publicly used road that is narrow. She had a "very large" and "old" tree that appeared to be "dying" and was leaning toward the road. As a property owner, she has a duty to maintain her property to be free from public hazards that would affect the public outside her property. She knew that the tree was a risk because of its size, age, and dying condition. She took steps to remedy the condition, but stopped prior to remedying the condition. Because Adelle was the property owner she had a duty of care regarding the maintainence of the tree. Furthermore, she had actual knowledge of the tree's dangerous condition suggesting that she knew that she had a duty of care. Therefore, Adelle's defense that she owed no duty of care to Driver will likely fail.
(A)(ii) Adelle's Acts Are Proximate Cause
Proximate cause for an injury is an action or inaction that may be deemed a "but for" cause of the injury, but may be attenuated from the most direct cause. However, the harm and the injuried party must have been foreseeable incidents of the negligence asserted.
Here, Adelle owned the property and knew of this large, dying tree close to the road. She did not take steps to remedy the dangerous tree prior to the approach of the storm. She then attempted to cut down the large 24-inch in diameter tree with a chainsaw and wedges. She did not finishing cutting down the tree, but had significantly weakened its steadiness prior to the storm. Driver sustained injuries that are disputed in this suit (#1) from the tree crushes Samara's car. Although Samara intervened by pulling Driver out of the original car, this intervening is not enough to support a break in the causal chain. Here, Adelle's negligence in failing to maintain the tree and then actively undermining the tree's strength prior to the storm, led to the tree being weak and toppling across the road causing Driver's injuries. The tree toppling is the exact foreseeable risk that Adelle's actions would lead to and a driver on the road is the foreseeable plaintiff. Such that, this type of harm and person was within the risk which should have been prevented by Adelle's proper duty of car. Therefore, Adelle's lack of proper maintenance is likely a proximate cause for Driver's injuries despite the car hitting the tree and Samara's intervention.
(B)Samara's Best Defense is that She Had Only a Reasonable Duty of Care under the Virginia Statute
Generally, rescuers once they attempt a rescue are liable for any negligence in their attempts. Virginia has a "good samaritan" statute that protects persons who, while attempting to assist injuried or at-risk persons, may be deemed to have caused them further injury.
Here, Samara took Driver from the car and Driver's car was not damaged when the tree fell, but Samara's car was damaged and caused injury to Driver. Although Samara's action may have been the proximate cause of Driver's injuries, she can make a strong defense on the "good samaritan" statute that her actions were reasonable under the circumstances for a unprofessional rescuer.
(C)Adelle's Defense of Contributory Negligence against Samara will Likely Fail
In Virginia, contributory negligence, if found, is a complete bar to recovery. It requires the defendant to prove the duty and breach of the plaintiff.
Here, Adelle will claim that Samara was contributorily negligent by removing Driver from his own car, dragging him across the road and into her own backseat. Although her actions may have been less than the most experienced rescuers would have been, Samara acted in good faith and with reasonableness to attempt to remove an injured person out of the way of a dangerous tree during a violent storm. Furthermore, Samara can rely on the "good samaritan" statute above to provide her with a defense for her actions. Holding good samaritan's contributorily negligent on a broad scale may also offend public policy considertions and lean toward a decision in Samara's favor. Therefore, Adelle's defense of contributory negligence will likely fail.
July 2016 - QUESTION 1 – EXAMPLE ANSWER #2
A. Adelle's Defenses
A.1. Duty to Driver
An owner of property abutting a road or sidewalk that is open to the public has a strict duty to maintain that property as to not cause harm to people who pass by. The property owner is strictly liable for and harms that result from the property harming someone in the public areas. However, a landowner has no duty to unforseeable tresspassers.
Adelle was aware that the tree was a potential danger to the public. She was aware a storm was coming that may enhance the danger of the leaning tree. Adelle weakended the tree, and increased the risk it would pose to the public, when she only partially cut through the tree. When driver initially enteres Adelle's property, he was a privileged trespasser, entering Adelle's property for private necessity. Adelle did not initially owe Driver and duty as a unknown tresspasser.
However, when the tree ultimately fell, it fell onto Samara's car, which was on the shoulder of the road. The shoulder of the road is public property. Therefore, at the time the tree injured Samara and Driver, the injury was on public land. Because the injury occured while on public land, Adelle is liable because she owes a duty to the generaly public.
A.2. Proximate Cause of Driver's injuries
In order for liability due to negligence to exist, the harm must be the actual and proximate (legal) cause of the injury. Something is a proximate cause of an injury if the resulting injury occured to a forseeable victim, and the harm was not caused by an intervening cause. Something is an intervening cause if it disrupts the causaul chain in a unforseeable way not related to the initial cause.
The falling tree caused injuries to the driver. However, the driver crashed into the tree, perhaps causing the tree to fall. Adelle's liability here depends on whether the car crash was an intervening cause of the injuries. Most likely the crash was not an intervening cause because Adelle had already seriously weakended the tree by partially cutting it. Also, Adelle has a duty to protect the public from this manner of harm. Adelle knew the risk the tree posed, and even increased its risk, and therefore the tree falling on someone was a forseeable occurence.
Adelle may also claim that Driver's accident and the suddeness and the severity of the storm was an intervening and proximate cause of the injuries to driver. Driver's accident may well ahve been the proximate cause of his initial injuries, but when the tree crashed on him on public space, Adelle became proximately liable for the additional injuries. Additionally, the storm was not so unforeseeable as to be a sufficiently intervening cause. Adelle heard about it ahead of time and had notice to take action. Being forseeable, the storm will not disrupt the causal chain.
Adelle is therefore not likely to succeed on either of her defenses, because she did owe a duty to people on publicly accessible roads and sidewalks, and no event was disruptive enough to be an intervening force that negated her liability for the proximate cause of the injuries.
B. Samara's Best Defense
Samara's best defense is that she was a rescuer shielded under Virginia's good samaritan laws.
In Virginia, one who stops to gratuitously assist another person in need cannot be held liable for any injuries that occur due to regular negligence. However, such a rescuer is not shieleded from gross or reckless negligence. A rescuer who acts as a reasonable rescuer would under the circumstances is likely not liable for any injuries that occur as a result of the rescue.
Samara was acting gratuitously as a rescuer when she stopped to assist driver. She acted reasonably when she removed Driver from his car and placed him in her own car. It was likely reasonable to attempt to get him to a hospital. Certainly, doing so was not grossly negligent unless the extent of Driver's injuries made it clear he should not be moved. Because Samara acted with regular prudence, as a reasonable rescuer would, she is certainly not acting grossly or recklessly negligent. Because she acted niether grossly nor recklessly negligent, Samara is immune from injuries that occured during a rescue, under Virginia's Good Samaritan laws. Therefore, Samara's best defense is that she was a rescuer shielded under Virginia's Good Samaritan laws.
C. Samara's Contributory negligence
Adelle is not likely to succeed on her defense of contributory negligence against Samara.
Contributory negligence is a defense when the victim was acting negligently. In Virginia, any contributory negligence can cause an otherwise liable defendant to not be liable. If Samara's actions rose to the level of negligence, she may be bared from recovering against the otherwise liable Adelle. Emergency situations usually allow a lay person a greater level of leniency in performing emergency-aid. Under such conditions it is more difficult to show that an emergency rescuer was acting negligenlty, unless a showing of clear negligence can be established.
Samara likely was not negligent. As discussed above, Samara was acting as a rescuer. Furthermore, she likely acted reasonably. Given that she was a rescuer in an emergency situation, likely a court would not find that Samara acted negligently. Because Samara was not acting negligently, Adelle's defense of contributory negligence will likely fail.