July 2019 Third Example Ten-point Answers to Virginia Essay Questions
July 2019 - QUESTION 8 – VIRGINIA BAR EXAMINATION
Lucy Loud consumed a large number of alcoholic beverages served to her by the owner and wait staff at Dunker’s Bar & Grille, owned by Dave Dunker and located in Leesburg, Virginia. Everyone at Dunker’s that night knew Lucy was intoxicated for most of the evening, as well as when she left and drove her automobile out of the parking lot.
Not more than ten minutes later, Lucy’s automobile crossed the center line of the highway and collided head-on with a sports car driven by Junah Jones, who suffered severe personal injuries as a result. Junah’s medical expenses exceeded $1,000,000. Thereafter, Junah settled his claim against Lucy and released both her and her insurance company. Junah then learned that Virginia statutory law provides that the seller of intoxicants who dispenses alcoholic beverages to an intoxicated person is guilty of a Class 1 misdemeanor.
The next month, Dunker’s bouncer, Bobby Bowers, escorted out of the building two inebriated customers, the Furr brothers, Fred and Fuzzy, after they started a loud argument and began cursing and throwing food at other customers. As the three of them reached the parking lot, Fred threw a punch, Bobby ducked, and the punch knocked out Fuzzy. His patience exhausted, Bobby told the Furr brothers to stay away from Dunker’s, and then he slugged Fred, knocking him to the ground, breaking his eyeglasses, and causing a partial loss of sight in Fred’s right eye.
Bobby, who started as a dishwasher at Dunker’s, had earned an online training certification as a bouncer and as a security guard. Bobby had no criminal record and had never been sued. Dave considered Bobby to be a model employee.
Several weeks later, Sam stopped at Dunker’s about 5:00 p.m. for a beer and a sandwich. While the kitchen prepared his sandwich, Sam announced that he was going to wash his hands in the restroom. Dave warned Sam to be careful as the flooring “in back” was being replaced, but Sam was looking at his smartphone and not paying attention. Moments later, Sam tripped over a knee-high stack of floor tiles, suffered a broken ankle as a result of his fall, and was not able to work for four months.
The floor tiles were being installed by Chubby Chesson. Chubby had a contract with Dunker’s to furnish and install commercial floor tiles in the designated area for the sum of $1,500. There were no specifications, drawings, or advance submittals. Dave was busy and left Chubby to do the job, because Chubby had successfully completed previous projects for Dunker’s. In performing this job, Chubby worked on one section of the floor at a time before moving to the next area; as a result, Chubby made numerous trips to his truck to retrieve only those new tiles he would need to install in the area in which he was then working.
Each injured individual below has filed a separate lawsuit against Dave, doing business as Dunker’s Bar & Grille, in the Circuit Court of Loudoun County, Virginia.
|(a)||Is the Circuit Court likely to hold Dave liable for damages for the personal injuries suffered by Fred as a result of his being struck by Bobby at Dunker’s Bar & Grille? Explain fully.|
|(b)||Provide two reasons the Circuit Court is unlikely to hold Dave liable for the personal injuries sustained by Sam when he tripped over Chubby’s stack of tiles at Dunker’s Bar & Grille. Explain Fully..|
|(c)||How is the Circuit Court likely to rule on the claims by Junah that Dave is liable for damages for his injuries based upon strict liability? Explain fully.|
|(d)||How is the Circuit Court likely to rule on the claim by Junah that Dave is liable for damages for his injuries based upon negligence? Explain fully.|
July 2019 - QUESTION 8 – EXAMPLE ANSWER #1
8.a. Yes, Dave will most likely be held liable for the personal injuries suffered by Fred as a result of his being struck by Bobby at Dunker’s Bar & Grille. For vicarious liability for torts to attach there must be a principal agent relationship and the tort must occur within the scope of employment. In cases, where there is an employee of an establishment, the agency relationship is established under the doctrine of respondeat superior. The question of whether the act was within the scope of employment is determined based on an analysis of the totality of the circumstances. The court will weigh if the actor had the intent to benefit the employer, if it arose in the course of woerk that was of the kind expected of the employee, and signficantly if it was on the job. Generally principals (employers in this case) are not liable for the intentional torts of their employees. However, they may be held liable if the employee’s responsibilites include acts where torts are incident and inherent in the nature of the work. When the torts arise in these incidents, the court will also assess wether it was motivated by an intent to serve. Thus it is common for employers of bouncers to be held liable for intentional torts incident to bouncing.
In this case, Bobby is an employee of Dave without question. He is the bouncer of the establishment. Bobby’s efforts to eject the Furr brothers from the resident was intended to benefit Dave, his employer. Bobby was doing the work that is of the kind expect of him as a bouncer. Bobby was also clearly on the job. Furthermore, while Bobby was throwing out the brothers, one attempted to punch him and hit his brother instead because Bobby ducked. (Bobby can have a case against Fred for assault, but that is beside the point). Bobby then slugged Fred. This behavior was incident to the work that Bobby was conducting. The fact that Bobby threw out two men from a bar and then got into a fistfight with them on the way out will likely be seen as incident to his work as a bouncer. Bobby even told the Furr brothers to stay away from the bar. This shows that Bobby was motivated by an intent to serve and that his punch was part of that job. Bobby clearly felt he needed to make a statement to the Furr brothers to stay away for good. This shows he was likely actig incident to his bouncing duties and can be imputed to his employer. There is a chance that the court could find Bobby was acting on his own free will at this point because he had exhaused his patience and took the extra time to slug Fred, but that is remote possibility. In all likelihood Dave will be held for Bobby’s slugging of Fred.
8.b. Two reasons that the court will not likely hold Dave liable for Sam’s personal injuries from tripping over Chubby’s stack of tiles is that Sam was negligent himself and that Chubby was an independent contractor.
Based on the law in Virginia, Sam will not likely prevail because he was contributorily negligent. In the Commonwealth, contributory negligence is a complete bar to recovery for tort claims. When a party is specifically warned of an action and then does not exercise reasonable care, the party is contributorily negligent. Negligence is based off a reasonable person standard. The court will ask what a reasonable person would do in that situation. In this case, Sam informed Dave he was going in the back to wash his hands. This is reasonable. However, Dave told Sam to be careful as the flooring “in back” was being replaced. A reasonable person would have listed to and heeded this warning. This is especially true since Sam initated the conversation. Additionally, Sam was looking at his smartphone and not paying attention. He was thus, not exercising reasonable care of person walking. Given that the tiles were knee-high, they would have been obvious had Sam been exercising reasonable care. Therefore, Sam will likely be barred from recovery because he was contributorily negligent.
Additionally, Sam will not likely prevail against Dave because Chubby is an independent contractor. As explained above, there is only agency tort liability when a principal-agent relationship exists. Owners of restaruants are generally not liable for tort liability commited by independent contractors. The two main exceptions being when the activity is abnormally dangerous or the indpendent contractor holds themselves out to be an employee, in which case the employer/owner would be estopped from claiming no liaiblity. In this case, Dave is the owner and Chubby is an independent contractor. There is no principal-agent relationship that can hold Dave liable for tort liability. The best case Sam can present is that Chubby held himself out as an employee (becuse tile installation is not inherently dangerous contrary to what Sam may think). However, that argument would fail because, although Chubby had done several project for Dave before, there is nothing indicating that Chubby is an employee. Therefore, Sam will not likely win because Chubby is an independent contractor and there is no vicarious liability to Dave.
8.c. Junah will not likely win on claim for strict liability. Strict liability for torts is imputed when the party owes a duty by law and any breach of that duy is inherently the responsibility of the party. No neglignece is necessary to be shown. Even if a party acted with reasonable care they will be held liable. A bar owner or a bar tender is not strictly liable for its patrons driving drunk. If the bar operators act with reasonable care, then they are not subject to strict liability. Therefore a claim by Junah under strict liability will likely fail.
8.d. The court will likely rule against Dave if Junah brings a claim under negligence. As in the other cases described, the moving party will have to argue a claim that is viariously liability based on a principal-agent relationship and that the act was within the scope of employment. In this case, the bartender is almost certainly an employee of Dave, thereby enabling respondeat superior. The employee was also clearly operating within the scope of employment by serving beer in the bar. Thus, vicarious liability by agency is established.
Junah will also have to establish that the agent, the bartender, was negligent in serving Lucy, the patron. To prove a claim of negligence, the plaintiff must show that the defendant had a duty, breached that duty, that the breach was the factual and proximate cause of the act, and that damages were sustained. When the plaintiff can prove that a statutory violation occured and the plaintiff was of the class of people and within the class of risk protected by that statute, they can suceed in provind duty and breach in a prima facie showing. In this case, Junah can show that the bartender was guilty of a statutory Class 1 misdemeanor. Junah is within the class of people this is meant to protect - other motorists who may be hit by drunk drivers. Junah is in the class of risk - drunk driving accidents. Thus Junah can prove duty and breach based on the violation of the statute. Junah can prove that the bartender serving Lucy was the factual cause, because but for the serving Lucy would not have drove drunk. Futhermore, Junah can show proximate cause because it was forseeable that Lucy would drive drunk after being intoxicated and everyone at the bar knew she was drunk. Finally, Junah can prove $1M in damages as he has already shown. Thus, Junah will likely prevail on a negligence claim against Dave.
July 2019 - QUESTION 8 – EXAMPLE ANSWER #2
a) The Court is likely to hold Dave liable for the damages suffered by Fred from Bobby’s conduct according to respondeat superior.
According to agency, a principal is liable for the conduct of an agent in furtherance of the agency relationship. Further, under respondeat superior, an employer is liable for the acts of the employee if the employee is acting within the scope of the agency relationship.
Here there was an agency relationship between Bobby and Dave. Bobby had started out as a dishwasher and had worked his way up to the bouncer at Dunker’s. Therefore, Bobby was an employee of Dunker’s and, as the owner of Dunker’s, an agent of Dave.
While an employer is normally liable for the negligent acts of the employee within the scope of the employment, the general rule is that the employer is not liable for the intentional torts of the employee. The intentional torts of the employee normally fall outside of the agency relationship unless they are conducted in the furtherance of the employment, they are foreseeable from the nature of the employment, or in other such circumstances that have been outlined through case law in Virginia.
Here, Bobby was acting in his capacity as an employee of Dunkers when the intentional tort took place. He was escorting out two unruly bar patrons who had too much to drink. He had gotten the two men out of the bar when one of the men proceeded to try and hit Bobby. Bobby ducked and the man hit the other man being escorted out. Bobby told the two men that they should stay away from Dunkers and then proceeded to hit the patron in the face. According to the facts, Bobby “slugged” him, which most likely means he punched the man in the face.
Dave may argue that this was not in the furtherance of the agency relationship. Bobby’s act of taking the men out of the bar would be in furtherance of the agency relationship, but Dave will claim that the punch to the patrons face would not be in the furtherance of the employment. However, the court would likely find that it was in the furtherance of the employment because Bobby was a bouncer at the club which required force.
However, if the court does not find that the punch was in furtherance of Bobby’s employment, the court will likely find that the punch was foreseeable from the nature of the employment. Bobby was employed as a bouncer at the club. His job was of a very physical nature with other people. He was in charge of “kicking people out” of the club and that most likely involved a lot of physical force at times. Therefore, it was likely foreseeable that Bobby would commit an intentional tort, especially a battery, in the course of his employment as a bouncer at Dunker’s.
Therefore, Dave will likely be held liable for Bobby’s battery of Fred, the patron.
b) Dave is unlikely to be held liable for the injuries sustained by Sam under 1) the independent contractor exception to agency principles, and 2) contributory negligence.
1) Independent Contractor
Under respondeat superior, as described above, an employer is normally held liable for the negligence of his employee that is performed within the scope of the employee’s employment. However, if the individual is an independent contractor and not an employee, the court will not normally impute liability to the employer. In order to find an independent contractor relationship, the amount of control the employer exercises over the individual’s tasks is key. The more control the employer asserts, the more likely the individual is an employee. The less control the individual asserts, the more likely the individual is an independent contractor.
Here, Chubby was under a contract to do a set job for Dave. He was not an ongoing employee of the bar. Further, there were no specifications, drawings, or advance submittals for how the work should be done. Dave contracted for a certain task to be done, and Chubby maintained all the control for HOW to get the job done. This would seem to allude to an independent contractor relationship between Dave and Chubby. This is also shown in the fact that Chubby decided how to complete the work by only getting the tiles from his truck that he would need for the area he was working on at the time. However, the facts state that Dave left Chubby to do the job because he had “successfully completed previous projects for Dunker’s. This may allude to more than an independent contractor relationship. However, from the facts given here, it is most likely that Chubby is an independent contractor of Dave.
If the individual is an independent contractor, the employer is not likely to be found liable for the independent contractor’s negligence. Therefore, Dave should not be liable for the injuries sustained by Sam for tripping over the tiles.
2) Contributory Negligence
Virginia retains a contributory negligence scheme in torts. Therefore, if a plaintiff is any part at fault in the negligence that caused their injuries, the plaintiff will not recover. Contributory negligence is a complete bar to recovery in most cases. The exceptions to contributory negligence do not apply in this case.
Here, Dave may successfully argue that Sam was contributorily negligent in his injuries caused by the tiles. Dave attempted to warn Sam of the tiles before he went to the bathroom. However, Sam was not listening to the warning and was texting on his phone. Further, the facts state that the tiles were in a knee-high stack on the floor. Therefore, if Sam had been paying attention and not texting, he likely would have seen the tiles on the floor and not tripped on them. This shows that Sam was also a cause of his injury.
Therefore, Sam was contributorily negligent in his injuries and this would also provide a reason the Circuit Court is unlikely to hold Dave liable for Sam’s injuries.
c) The Court will likely rule against Junah on the strict liability claims against Dave.
Some states have Dramshop Acts that hold establishments serving alcohol strictly liable for the accidents caused by those that are visibly overserved alcohol. If a bar overserves a patron and the patron hits a third party, the bar would be held strictly liable for the third party’s injuries.
However, Virginia does not have a Dramshop Act. This will prevent Junah from holding Dave liable on a theory of strict liability. Although the overserving of an individual is a misdemeanor, Virginia does not retain a Dramshop Act. Therefore, Dave cannot be found liable to Junah under strict liability.
d) The Circuit Court is likely to find Dave liable to Junah based on negligence per se for violating the statute.
When a statute is violated by a defendant, a plaintiff may enter the statute into evidence as evidence of negligence per se. The effect of entering the statute into evidence to prove negligence per se is that the plaintiff need not establish duty, breach, and causation. When the statute is entered into the record, the plaintiff must prove that the defendant violated the statute and this switches the burden to the defendant to prove that he was not negligent.
Here, Junah will likely be able to introduce the statute into evidence. In order to enter the statute to prove negligence per se, the plaintiff must prove prove that the damage caused was one the statute was trying to prevent and that the victim is one the statute was trying to protect. Here, the statute makes it a misdemeanor for a “seller of intoxicants who dispenses alcoholic beverages” to sell beverages to “an intoxicated person”. It would seem likely that the statute is designed to protect victims similar to Junah who are harmed by the intoxicated acts of someone who was overserved. Further, the harm here, a drunk driving accident, is most likely the type of harm that the statute was trying to protect. Therefore, the Circuit Court will likely allow Junah to enter the statute into evidence to prove negligence per se.
Further, Junah will be able to prove, through witnesses, by a preponderance of the evidence, that Lucy was overserved and already intoxicated as she was being served by Dave and his staff at Dunker’s the night Sam was injured. This would show a violation of the statute and prove Sam’s claim for negligence per se.
Therefore, the Court is likely to find Dave liable for Junah’s damages.