Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of standard of care.For more information on the topic of standard of care see the pages on Wikipedia.

[1]

Standard of Care-Auto Liability

2002 Kimberlin v. PM Transp., Inc., 264 Va. 261, 563 S.E.2d 665.

Truck strikes rock on roadway. Jury issue presented as to whether truck driver violated federal regulations by failing to place certain warning devices in the center of the lane of traffic occupied by the defendant’s disabled vehicle.

Although violation of criminal statute may provide basis for a wrongdoer’s liability in civil action, in this case, the statute’s violation requires proof of an intentional act and cannot provide the basis of a presumption of negligence.

1994 Thomas v. Settle, 247 Va. 15, 439 S.E.2d 360.

The standard of care to be applied to minor while operating motor vehicle is same as to be applied to adult.

1992 Harris v. T.I., Inc., 243 Va. 63, 413 S.E.2d 605.

Court references ANSI standards as mandating activation of external audible warning devices when certain vehicles are backed up.

1984 Culberson v. McCloud, 227 Va. 249, 315 S.E.2d 219.

To constitute actionable negligence there must be legal duty, breach thereof, and injury caused by breach. Plaintiff offered evidence that Chevrolet vehicle that struck her from rear had been repaired two months before accident by defendant, Al’s Brake Service, after co-defendant, Alston, owner of another service station, had recommended to car’s previous owner that brakes be repaired. Previous owner could provide no evidence as to what repairs Al’s had made on car. Court held that they could find no proof of legal duty that Alston owed plaintiff and as such motion to strike as to Alston was affirmed. Since record is devoid of any proof as to kind of brake work done by Al’s, motion to strike as to him likewise was properly sustained.

1980 Nolde Bros. v. Wray, 221 Va. 25, 266 S.E.2d 882.

Co-defendant sued for negligently gesturing to defendant to proceed with left turn. One who assumes to act must act carefully. No actionable negligence here because co-defendant not in position to determine if safe for defendant to proceed.No breach of standard of care.

1974 Meador v. Lawson, 214 Va. 759, 204 S.E.2d 285.

Jury might conclude that abnormal conditions dictated higher standard of care and lower speed than 25 mph. When abnormal conditions exist and heightened hazards are reasonably foreseeable then standard of care is higher.

1959 Norfolk & W. Ry. v. Hagy, 201 Va. 183, 110 S.E.2d 177.

Railroad crossing accident. No statutory duty to sound signal, but in part because it was practice of train operators to sound signal at this crossing, jury was justified in finding defendant negligent for not signalling.That is standard of care breached.

1950 Bryan v. Fewell, 191 Va. 647, 62 S.E.2d 39.

Motor vehicle struck pedestrian. Defendant driver saw plaintiff pedestrian stop and look directly towards his vehicle. Defendant had right to assume that plaintiff would not attempt to cross street immediately in front of his automobile as law does not impose upon operator of vehicle duty of prevision.

1950 Rice v. Turner, 191 Va. 601, 62 S.E.2d 24.

Plaintiff’s vehicle struck defendant’s cow on highway at night. Plaintiff claimed violation of running at large statute. Statute, however, is not necessary to establish duty of ordinary care. Such duty may arise from statute, from municipal ordinance, or from relation of parties. Common law imposes upon every person duty to exercise ordinary care in use and maintenance of his property to prevent injury to others.

[2]

Standard of Care-General Liability

See Va. Code § 53.1-68, which requires superintendent of regional jail or jail farm to establish performance standards and management practices to govern its employees.

2008 Norfolk and Portsmouth Railroad v. Wilson, 276 Va. 739, 667 S.E. 2d 735.

In this FELA case plaintiff sought to admit evidence of statutes in other states as to proof of the standard of care. Those statutes did not apply in this case and therefore they should not have been admitted.

2006 Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 636 S.E.2d 416.

Plaintiff’s expert testified as to private rules and curriculum of defendant institution. The evidence was not offered to establish the standard of care but rather it was something that the expert considered and relied upon in terms of forming her own opinion as to standard of care. In addition, there was no objection made to this testimony. As such, it was admissible.

1994 Board of Supvrs. v. Lake Servs., 247 Va. 293, 440 S.E.2d 600.

Evidence about dredging lake did not concern scientific matter upon which jury required expert assistance and as such trial court erred in requiring expert testimony. At issue was whether defendant used ordinary care in dredging lake given its knowledge of the fluctuating water level and the presence of a known underwater obstruction. This does not concern scientific matter that jury required expert assistance to understand.

1987 Blake Constr. Co. v. Alley, 233 Va. 31, 353 S.E.2d 724.

Suit by general contractor against architect for economic loss on construction job. Duty to use ordinary care and skill is not imposed in abstract. It results from conclusion that interests entitled to protection would be damaged if such care is not exercised. Traditionally, interests that have been deemed entitled to protection in negligence have been related to safety or freedom from physical harm. Thus, where personal injury is threatened, duty in negligence has been readily found. Property interests also have generally been found to merit protection from physical harm. However, where mere deterioration or loss of bargain is claimed, the concern is with a failure to meet some standard of quality. This standard of quality must be defined by reference to that which parties have agreed upon.

1986 Williamson v. Old Brogue, Inc., 232 Va. 350, 350 S.E.2d 621.

Statute may define standard of care to be exercised where there is underlying common law duty but doctrine of negligence per se does not create cause of action where none otherwise exists.

1986 Thurston Metals & Supply Co. v. Taylor, 230 Va. 475, 339 S.E.2d 538.

Golfer must exercise reasonable care on the golf course to prevent injury to others. Fulfillment of that duty or compliance with standard of care is measured by the surrounding facts. In this case golfer lost control of club while taking practice swing. Jury issue presented.

1984 Virginia & Md. Ry. v. White, 228 Va. 140, 319 S.E.2d 755.

Railroad crossing accident. Expert witness with extensive training and experience in railroad industry testified regarding acceptable and proper substitute warnings where warning gates were not operational. He testified that attempting to flag crossing with brakeman’s hand lantern was not standard, acceptable practice in industry. If lantern is to be used for flagging, red bulb should replace white bulb. Admissibility of that testimony was not an issue before Supreme Court.

1984 Cooper v. Whiting Oil Co., 226 Va. 491, 311 S.E.2d 757.

Case involved leak from gasoline storage tank. Plaintiffs offered no evidence as to oil company’s duty to inspect and maintain gas tank. There was no evidence that company policy or industry practice required oil company to inspect periodically. No evidence was offered to show how leaks could have been prevented or even detected. Motion to strike granted.

1983 Stevens v. Ford Motor Co., 226 Va. 415, 309 S.E.2d 319.

Unknown man disobeyed plaintiff’s clear and unequivocal directions and without any warning engaged in activity that he said he would not do. Court indicated that they could not say as matter of law that this was not negligent act. Question of negligence on part of that man, therefore, was properly submitted to jury.

1983 Pullen v. Nickens, 226 Va. 342, 310 S.E.2d 452.

In this case plaintiff offered into evidence certain guidelines promulgated by defendant highway department, defendant’s employer. Court affirmed its holding in Godsey in stating that private rules are inadmissible in evidence either for or against litigant who is not party to such rules. Court held that admission of those rules in this case was reversible error.

1983 Graves v. National Cellulose Corp., 226 Va. 164, 306 S.E.2d 898.

In this negligence action alleging improper application of insulation material, court admitted defendant’s application manual.

1983 VEPCO v. Winesett, 225 Va. 459, 303 S.E.2d 868.

Handyman electrocuted while cutting tree limbs near overhead power line. VEPCO presented evidence to show that professional tree trimmers in exercise of reasonable care would have used ropes or protective clothing, would not have used metal ladder, and would have undercut branches to prevent them from hanging. This type of evidence, however, defined duty of someone who would have been actually engaged in this business, but did not necessarily establish what would have been employed by reasonably prudent general handyman. VEPCO allowed to present testimony as to manner in which these duties should be carried out in compliance with manual entitled “American National Standard Requirements for Tree Pruning, Trimming, Repairing or Removal.” Expert for decedent also presented testimony as to what industry standard and accepted practice was as to trimming of trees.

1982 Ford Motor Co. v. Bartholomew, 224 Va. 421, 297 S.E.2d 675.

Absent established norm in industry, it was matter of opinion of trained experts what design was safe for its intended use.

1967 Wright v. Tate, 208 Va. 291, 156 S.E.2d 562.

Plaintiff’s decedent was of diminished mental capacity. Mental deficiency, which falls short of insanity does not excuse conduct that is otherwise contributory negligence.

1965 Wagman v. Boccheciampe, 206 Va. 412, 143 S.E.2d 907.

Issue arose as to whether handrail was safe. Court cites compliance with local building code.

1963 Robbins v. Old Dominion Power Co., 204 Va. 390, 131 S.E.2d 274.

National electric safety code was put into evidence without objection. Specific regulation therein is standard in industry and is so accepted by State Corporation Commission.

1961 VEPCO v. Daniel, 202 Va. 731, 119 S.E.2d 246.

Plaintiff touched live electrical wire. National Electric Safety Code recognized as establishing standard.

1957 Perlin v. Chappell, 198 Va. 861, 96 S.E.2d 805.

Duty of ordinary care may arise from statute, ordinance or relation of parties.

1953 Atlantic Rural Exposition, Inc. v. Fagan, 195 Va. 13, 77 S.E.2d 368.

Owners and operators of stock car raceway had duty to exercise ordinary care to see that its premises were reasonably safe for all persons upon said premises who had paid admission charge to see said race.

1951 Sadler v. Lynch, 192 Va. 344, 64 S.E.2d 664.

Standard of care required of one maintaining dangerous agency must be commensurate with risk therefrom reasonably to be foreseen.

1950 Fein v. Wade, 191 Va. 203, 61 S.E.2d 29.

Person is negligent when he omits to do such things as reason, ordinary care. and natural instinct for self-preservation would suggest for his own protection.

1949 Keith v. Clinchfield Coal Corp., 189 Va. 592, 54 S.E.2d 126.

Evidence of custom and usage is not conclusive as to negligence.

1949 Whitfield v. Cox, 189 Va. 219, 52 S.E.2d 72.

Owner or proprietor of place of amusement or entertainment is not insurer of safety of his invitees. His duty is to exercise reasonable care for their safety and protection.

1948 Moore v. Virginia Transit Co., 188 Va. 493, 50 S.E.2d 268.

Standards established by statute are not exclusive standard of care to which conduct of responsible party must conform to avoid being negligent.

1948 Ivory Storage Co. v. ACLR Co., 187 Va. 857, 48 S.E.2d 242.

Statutory requirement is merely minimum requirement which defendant is required to exercise. There is no way that legislature or regulatory agency can review every situation to determine what must be done; therefore, their enactments are simply minimum standards. Common law duty still exists.

1948 Edgerton v. Norfolk S. Bus Corp., 187 Va. 642, 47 S.E.2d 409.

Responsibility voluntarily assumed by a bus company to maintain signals at sidewalk crossing, imposes no higher duty on bus company than statute requires.

1944 Bly v. Southern Ry., 183 Va. 162, 31 S.E.2d 564.

Fact that defendant’s actions were usual and customary practice in trade is not conclusive of lack of negligence.

1943 Childress v. City of Richmond, 181 Va. 267, 24 S.E.2d 419.

What is reasonable care depends on danger.

1943 Brann v. F.W. Woolworth, 181 Va. 213, 24 S.E.2d 424.

Where test of negligence is use of reasonable care and no definite standard of care has been established then question is for jury to determine standard of care.

[3]

Standard of Care-Product Liability

1986 Gordon Harper Harley-Davidson v. Cutchin, 232 Va. 320, 350 S.E.2d 609.

Products liability case against manufacturer and retailer of motorcycles. Trial court properly admitted into evidence service bulletin issued by manufacturer to its dealers in connection with product recall campaign.

1975 Turner v. Manning, 216 Va. 245, 217 S.E.2d 863.

Products liability case. Manufacturer is not under duty to manufacture and market accident-proof product.

1953 McClanahan v. California Spray Corp., 194 Va. 842, 75 S.E.2d 712.

Products liability case based on insecticide statute. Fact that statute imposes criminal penalty is evidence of high standard of care.

[4]

Standard of Care-Professional Liability

See Va. Code § 8.01-581.20 establishing statewide standard of care.

2004 Smith v. Irving, 268 Va. 496, 604 S.E.2d 62.

In this medical malpractice case, defendant physician testified factually as to what he did and why he did it. He was not asked standard of care questions on direct examination and therefore it was improper to allow such in cross-examination.

2002 Polyzos v. Cotrupi, 264 Va. 116, 563 S.E.2d 775.

Real estate agent failed to properly identify real estate in contract. Trial court held that expert testimony was required. This was reversed on appeal. Court refused to formulate a bright line rule applicable to all cases involving alleged negligence of realtors but held that requirement for expert standard of care testimony would be decided on a case-by-case basis.

1994 Beverly Enters. v. Nichols, 247 Va. 264, 441 S.E.2d 1.

Wrongful death action. Decedent admitted to nursing home. Prior to admission, staff was advised of fact that decedent needed help with eating, otherwise she would choke. Defense witness acknowledged that such assistance was necessary. Expert testimony not required on this issue. In certain rare instances such as this, expert testimony is unnecessary because acts of negligence clearly lie within range of jury’s common knowledge and experience.

1990 Seaward Int’l, Inc. v. Price Waterhouse, 239 Va. 585, 391 S.E.2d 283.

Unless malpractice case turns upon matters within common knowledge of laymen or upon rules that have ripened into rules of law, expert testimony is required to establish appropriate professional standard, to establish deviation and to establish such deviation was proximate cause of damage. In this accounting malpractice case, plaintiff failed to establish what records should have been reviewed by defendant and what they should have revealed. Plaintiff failed to meet burden.

1989 Spainhour v. B. Aubrey Huffman & Assoc., 237 Va. 340, 377 S.E.2d 615.

Professional negligence case as to surveyor. Professionals charged with negligence are ordinarily entitled to be judged by standard of care prevailing in their profession at appropriate time and place. There are exceptions to this that become rules of law; i.e., attorney and broker have duty to convey offers to client. In absence of evidence of contrary intent, distinct order of preference governs inconsistencies in description of land. In this case, foregoing preference governed and it was clear that surveyor deviated from this standard; therefore, guilty of negligence as matter of law.

1987 Rhoades v. Painter, 234 Va. 20, 360 S.E.2d 174.

Medical malpractice case. Standard of care is statewide standard unless either party proves by preponderance of evidence that local facilities and services give rise to standard of care which is more appropriate than statewide standard. Use of local standard with no evidence to justify it was reversible error.

1986 Raines v. Lutz, 231 Va. 110, 341 S.E.2d 194.

Health care providers are required by law to possess and exercise only that degree of skill and diligence practiced by reasonably prudent practitioner in same field of practice or specialty.

1985 Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d 440.

Doctor is not insurer of success nor is he held to highest degree of care. He must demonstrate degree of skill of reasonably prudent practitioner.

1982 Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825.

Wrongful birth case. Standard of care in handling blood for testing is reasonable care.

1982 Teh Len Chu v. Fairfax Emergency Med. Assocs., 223 Va. 383, 290 S.E.2d 820.

Physician must exercise best judgment in application of his skill and in use of ordinary care. Terms “honest mistake” and “bona fide error” have no place in instructions to jury in malpractice cases.

1980 James v. Jane, 221 Va. 43, 267 S.E.2d 108.

Doctor owes his best professional effort on behalf of patient.

1980 Ayyildiz v. Kidd, 220 Va. 1080, 266 S.E.2d 108.

Malicious prosecution action. While negligence might be founded on duty owed to opposing party under code of professional responsibility, code is no basis for private cause of action.

1979 Marwell v. McCaffery, 219 Va. 909, 252 S.E.2d 342.

Plaintiff’s cause of action having arisen prior to effective date of Va. Code § 8.01-581.12:1 [repealed by Acts 1979, c. 325, see now § 8.01-581.20], plaintiff is required to establish “the same or similar community” standard, defendant being required to use that degree of skill and care that would have been exercised by reasonably prudent chiropractor practicing in Fairfax County or Northern Virginia or similar community.

1979 Ives v. Redford, 219 Va. 838, 252 S.E.2d 315.

Action arose prior to Va. Code § 8.01-581.12:1 [repealed by Acts 1979, c. 325, see now § 8.01-581.20]. Standard of care applicable was that of reasonable gynecologist in City of Virginia Beach or similar community.

1979 Noll v. Rahal, 219 Va. 795, 250 S.E.2d 741.

Standard of practice for specialists in medical malpractice actions accruing on or before July 1, 1976, is that of other like specialists in good standing practicing in same or similar localities. Judicial notice cannot be taken of fact that medical communities of Richmond and Fairfax are similar.

1976 Little v. Cross, 217 Va. 71, 225 S.E.2d 387.

Expert witness must adequately establish his knowledge of professional standards required in community or in similar community. Expert medical testimony is necessary to establish this standard and to determine if malpractice occurred.

1976 Bly v. Rhoads, 216 Va. 645, 222 S.E.2d 783.

In regards to specialists in medical case, locality rule is applied in regards to standard of care.

1969 Whitfield v. Whittaker Mem. Hosp., 210 Va. 176, 169 S.E.2d 563.

Physician is not insurer nor is he held to highest degree of care known to his profession. He must exhibit only that degree of skill and diligence employed by ordinary, prudent practitioner in his field and community or in similar communities.

1959 Carroll v. Richardson, 201 Va. 157, 110 S.E.2d 193.

Doctor is not required to exercise highest degree of skill possible unless he has agreed to do so by special contract. In this case plaintiff came into a pathology lab to have blood sample taken. After it was taken he immediately stood up and fainted. No showing of violation of ordinary care.

1953 Surf Realty v. Standing, 195 Va. 431, 78 S.E.2d 901.

Architect does not guarantee perfect plan or satisfactory result. He is only held to standard of reasonable care and diligence in preparation of plans.

1948 Vann v. Harden, 187 Va. 555, 47 S.E.2d 314.

Physician by taking charge of case represents that he possesses that reasonable degree of learning and skill ordinarily possessed by doctors in that locality.

1947 Danville Community Hosp. v. Thompson, 186 Va. 746, 43 S.E.2d 882.

Care to be exercised by hospital should be commensurate with known inability of patient to take care of himself. Several other cases footnoted.

1947 Jefferson Hosp. v. Van Lear, 186 Va. 74, 41 S.E.2d 441.

Standard of care of private hospital is such reasonable care and attention for patient’s safety as their mental and physical attention may require. Here plaintiff alleged he called nurse, she failed to respond. Plaintiff got out of bed to relieve himself and fell. Verdict for plaintiff.