Virginia Common Law

  1. Invasion of Privacy (General)

    There is no common law action for privacy in Virginia. Civil actions for violation of a right to privacy are limited to those falling under Section 8.01-40; unauthorized use of a person’s name or likeness.

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  2. Defamation

    Common law defamation is addressed with statutory defamation above.

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  3. Trespass

    1. Introduction

      Virginia common law trespass protects against unauthorized entries onto a person’s land that interfere with that person’s exclusive possession of the land. Unauthorized entry includes entries by objects or other substances, and may be accidental.

    2. Elements

      Trespass is an unauthorized entry onto property which results in interference with the property owner’s interest therein.1 In order to maintain a cause of action for trespass to land, the plaintiff must have had possession of the land, either actual or constructive, at the time the trespass was committed. To recover for trespass, a plaintiff must prove an invasion that interfered with the right of exclusive possession of the land, that was a direct result of some act committed by the defendant.2 Unlike criminal trespass, civil trespass does not require an actual or threatened breach of peace.3 Moreover, civil liability may be predicated upon an unintentional trespass, or acts done accidentally, inadvertently, or by mistake.4 A five-year statute of limitations applies to trespass actions.5

    3. Cases

      1. Cooper v. Horn, 448 S.E.2d 406 (Va. Sup. Ct. 1994).
        • Procedural Posture: The trial court entered judgment for Plaintiffs on the jury’s verdict. The jury awarded Plaintiffs $6,826.20 in compensatory damages, and it awarded another Plaintiff $3,565 in compensatory damages and $2,700 in punitive damages.
        • Law: Trespass to land.
        • Facts: Plaintiffs alleged damage to their real property and structures on their property caused by discharge of a large volume of water across their land during a rain storm. They alleged the damages were caused by the failure of a dam built and maintained by Defendants.
        • Outcome: Plaintiffs’ evidence was sufficient to entitle them to have the jury instruction on the trespass theory. They showed they were the owners of the land, and Defendants did not dispute Plaintiffs’ right to exclusive ownership. Plaintiffs also proved an entry onto their land from the discharge of a large volume of water from the dam constructed by Defendant, and that the entry was without right, authority, or invitation.
    4. Practice Pointers

      To succeed on a trespass claim, a plaintiff must show that the defendant either entered the plaintiff’s land, or cause some object or substance to enter plaintiff’s land, and the defendant’s entry interfered with the plaintiff’s exclusive possession of his or her land. This may be a useful cause of action to bring against a “peeping tom” who enters the plaintiff’s land, or causes a camera or other recording device to enter the plaintiff’s land.

    1. In re Bundick, 303 B.R. 90, 114 (Bankr. E.D. Va. 2003). 

    2. Cooper v. Horn, 448 S.E.2d 406, 423 (Va. Sup. Ct. 1994). 

    3. Taylor v. Com., 400 S.E.2d 794, 796 (Va. Ct. App. 1991). 

    4. Cooper, 448 S.E.2d, at 423. 

    5. Professionals I. Inc. v. Pathak, 47 Va. Cir. 476, at *1 (1998). 

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  4. Trespass to Chattels

    1. Introduction

      Virginia common law entitles individuals to compensation for the loss of use of an item whose value was impaired due to another person’s illegal use or intermeddling.

    2. Elements

      A trespass to chattels occurs when one party intentionally uses or intermeddles with personal property in the rightful possession of another without authorization. One who commits a trespass to chattel is liable to the possessor of the chattel if the chattel is impaired as to its “condition, quality, or value,” and must compensate the possessor for the loss of use of the item.1 To prevail on a claim for trespass to chattels, the possessor must allege that the purported trespasser illegally seized the possessor’s personal property and converted it to the trespasser’s use.2 Trespass to chattels has a five year statute of limitations.3

    3. Cases

      1. Am. Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444 (E.D. Va. 1998)
        • Procedural Posture: The matter was before the court from an appeal of the lower court’s partial grant and partial denial of Plaintiff’s Motion for Terminating Sanctions Based on Defendants’ History of Discovery Abuses.
        • Law: Trespass to chattels
        • Facts: Plaintiff, America Online, complained that Defendants, which operated pornographic web sites, sent large numbers of unauthorized and unsolicited bulk e-mail advertisements—spam—to AOL’s members. AOL’s Unsolicited Bulk E-mail Policy and its Terms of Service bar members and nonmembers from sending bulk email through AOL’s computer systems. AOL sent Defendants two cease and desist letters, but Defendants continued their e-mailing practices. AOL alleged that Defendants’ actions injured it by consuming capacity on AOL’s computers, causing it to incur technical costs and impairing the functioning of its e-mail system.
        • Outcome: Defendants’ acts constituted a trespass to chattels. The court found that courts have recognized that the transmission of unsolicited bulk e-mails can constitute a trespass to chattels, to the extent the e-mails demand disk space and drain processing power of Plaintiff’s computer equipment, such that those resources are not available to serve Plaintiff; accordingly, the value of that equipment to Plaintiff is diminished even though it is not physically damaged by the defendant’s conduct. The court held that in this case, the transmission of electrical signals through a computer network was sufficiently “physical” contact to constitute a trespass to property. Moreover, because AOL’s policies prohibit the sending of such e-mails, Defendants’ actions were unauthorized. The court granted AOL injunctive relief preventing Defendants from further distributing unsolicited bulk e-mails to AOL members.
        • Special Notes: This case may indicate that if someone gains unauthorized access to another’s computer network, to the extent their access demands disk space and drains processing power, in order to acquire intimate photos of the computer’s owner, the accessor’s act may constitute trespass to chattels, even though the computer owner’s equipment is not physically damaged. Access that circumvents a computer’s password may be considered unauthorized access.
      2. SecureInfo Corp. v. Telos Corp., 387 F. Supp. 2d 593, 621 (E.D. Va. 2005).
        • Procedural Posture: The matter was before the District Court on Defendant’s Motion to Dismiss.
        • Law: Trespass to chattels
        • Facts: Under false pretenses, Defendants sought to secure a copy of Plaintiff’s risk management software in order to copy the program. By gaining unauthorized access to and downloading the contents of its risk management system, Plaintiff alleged that Defendants intentionally interfered with Plaintiff’s proprietary information for their own enrichment. As a result, Plaintiff alleged Defendants caused damage to Plaintiff by affecting its exclusive right of possession over its property and contributing to the loss of actual and potential customers and goodwill, injury to its reputation, and diminution in the value of its confidential information.
        • Outcome: The court granted Defendants’ Motion to Dismiss Plaintiff’s trespass to chattels claim because Plaintiffs failed to allege that the chattel that was used or meddled with was impaired; Plaintiff did not allege that the materials that were taken by Defendants were damaged or diminished in value.
        • Special Notes: This case may limit the extension of AOL, above. The court’s holding seems to indicate that the object of the trespass must be damaged or diminished in value for a plaintiff to have a cause of action for trespass to chattels.
      3. Microsoft Corp. v. Does 1-18, No. 1:13CV139 LMB/TCB, 2014 WL 1338677, at *10 (E.D. Va. Apr. 2, 2014).
        • Procedural Posture: This matter was before the District Court on Plaintiff’s Motion for Default Judgment and Permanent Injunction. A magistrate judge issued a Report and Recommendation that default judgment be entered against Defendants and that the court grant Plaintiff’s requested relief.
        • Law: Trespass to chattels
        • Facts: Defendant operated and controlled a botnet that infected a large number of Internet users’ computers. Defendant used various techniques to lure victims to websites where the malicious code was surreptitiously installed on their computers. Defendant was then able to make unauthorized changes to infected computers, bring them under Defendant’s control, and force users’ web browsers to websites of Defendant’s choosing. The code also created invisible browser instances that generated fraudulent clicks on advertisements and websites identified by Defendant. Defendant monetized the activities through the online advertising ecosystem.
        • Outcome: The unauthorized intrusion into an individual’s computer system through hacking, malware, or unwanted communications supports actions under trespass to chattels. Plaintiff alleged sufficient facts to show Defendant committed trespass to chattels: Through the botnet, Defendant accessed computers and servers associated with Microsoft’s Internet Explorer, Bing, and Bing Ads without authorization. This unauthorized access allowed Defendant to engage in click-fraud by directing web browser sessions and search engine results to websites of Defendant’s choice. These actions caused injury to Microsoft and its customers by lost time and money, and tarnished Microsoft’s business goodwill. The court held that Defendant committed common law trespass to chattels.
        • Special Notes: In contrast to SecureInfo above, this case seems to extend the application of trespass to chattels by clarifying that the plaintiff need not demonstrate damage to or diminution in value of the object of the trespass; the possessor’s lost time and money, and tarnished goodwill, is sufficient to sustain a trespass to chattel. This is a promising extension for victims of nonconsensual pornography—if intimate photos are accessed from the subject’s device without his or her consent, resulting in the subject’s lost time and money and tarnished reputation, he or she may have a cause of action for trespass to chattels.
    4. Practice Pointers

      • A plaintiff may bring a claim for trespass to chattels if the defendant gained unauthorized access to the plaintiff’s computer or other device, which resulted in actual damages such as decreased disk space and drained battery. The device itself likely need not be physically damaged. Additionally, the plaintiff’s lost time and money and tarnished goodwill may be sufficient to sustain a trespass to chattel.
      • However, if defendant’s access to the device containing the plaintiff’s photo was authorized, plaintiff may not have a claim for trespass to chattel. The plaintiff will have to argue that the plaintiff’s unauthorized use of the photo caused damage such as impairing the photo’s value. Additionally, in the case of digital photos and imagery, where the plaintiff did not lose the ability to use the photo, there likely will be no compensation because the plaintiff was not deprived of use of the photo.
    1. Johns v. Stillwell, No. Civ.A.3:07CV00063, 2009 WL 2390991, at *2 (W.D. Va. Aug. 4, 2009) ; Am. Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444, 451-52 (E.D. Va. 1998) . 

    2. Schmidt v. Hunsberger, No. 1:14-CV-1372, 2015 WL 1258961, at *7 (E.D. Va. Mar. 17, 2015), aff’d, 615 F. App’x 808 (4th Cir. 2015). 

    3. Dominion Resources Services, Inc. v. 5K Logistics, Inc., No. 3:09-CV-315, 2009 WL 2461396 (E.D. Va. Aug. 7, 2009). 

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  5. Conversion

    1. Introduction

      Virginia common law entitles individuals to compensation for the full value of an item that was wrongfully taken from them.

    2. Elements

      Conversion is the wrongful assumption or exercise of the right of ownership over goods or chattels belonging to another, in denial of or inconsistent with the owner’s rights.1 To assert a claim for conversion, a plaintiff must prove by a preponderance of the evidence (1) the ownership or right to possession of the property at the time of the conversion and (2) the wrongful exercise of dominion or control by the defendant over the plaintiff’s property, thus depriving the plaintiff of possession.2 The tort of conversion is subject to a five year statute of limitations.3

    3. Cases

      1. Frasier v. Ameriprint, Inc., No. 125513, 1994 WL 1031196 (Va. Cir. Ct. May 24, 1994).
        • Procedural Posture: The matter was before the court on several pleas, demurrers, and a motion to dismiss filed by various combinations of Defendants.
        • Law: Common law conversion.
        • Facts: Plaintiff alleged that he entered into an oral agreement with one Defendant whereby he would allow that Defendant to use, for one time only, some of his color transparencies in a brochure that another Defendant was designing for the first Defendant as a corporate brochure. Plaintiff was also to provide photographs of several artists. In return, the first Defendant was to give Plaintiff money, a number of promotional pieces of Plaintiff’s work, and would list Plaintiff’s work in a creative source directory published by the first Defendant. Plaintiff alleged he made repeated demands for the images, and was eventually advised that the project had been cancelled and the images had been lost. Plaintiff continued to demand the return of his images, and then advised the two Defendants of his intention to sue for the value of the lost images. Plaintiff also alleged that the second Defendant later found the images, and gave them to a third Defendant. The third Defendant then refused to return the images to Plaintiff, and gave the images to a fourth Defendant.
        • Outcome: Plaintiff was time-barred on his pleadings from proceeding against the third and fourth Defendants. The remainder of the conversion claim was dismissed for misjoinder with a copyright claim.
        • Special Notes: This case seems to indicate that a conversion case can be brought for the unauthorized taking of a physical copy of images, but conversion claims would be dismissed if the suit also contained copyright claims.
      2. Town & Country Properties, Inc. v. Riggins, 457 S.E.2d 356 (Va. Sup. Ct. 1995.)
        • Procedural Posture: The trial jury ruled in favor of Plaintiff on conversion, and fixed compensatory damages at $25,000 and punitive damages at $28,608.
        • Law: Common law conversion.
        • Facts: Former professional football player sued real estate broker, ex-wife, for publishing and distributing an advertisement containing the player’s name to state that a house for sale was his former home.
        • Outcome: The court held that Defendant’s use of Plaintiff’s name constituted a conversion, because she used his personal property—his name—as her own and exercised dominion over it without the owner’s consent.
    4. Practice Pointers

      It will be more difficult for a plaintiff to succeed on a conversion claim than on a trespass to chattels claim, because the plaintiff must show that the defendant assumed possession over the item such that the plaintiff was totally deprived of possession. A plaintiff may succeed on a conversation action if, for instance, the defendant took a physical copy of a photo or video from plaintiff’s possession without the plaintiff’s permission. A plaintiff may make a creative argument that a defendant’s unauthorized use of the plaintiff’s photo is a conversion because the defendant used and exercised control and possession over the plaintiff’s photo without the plaintiff’s consent.

    1. Maine v. Adams, 672 S.E.2d 862, 869 (Va. Sup. Ct. 2009). 

    2. Fax Connection, Inc. v. Chevy Chase Bank, F.S.B., 73 Va. Cir. 263, at *2 (2007). 

    3. Dunn v. City of Williamsburg, 35 Va. Cir. 420, at *4 (1995). 

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  6. Intentional Infliction of Emotional Distress (“IIED”)

    1. Introduction

      In Virginia, there is a common law cause of action for intentional infliction of emotional distress. However, it is generally disfavored, and requires underlying conduct that is “outrageous” and generally a showing of physical symptoms.

    2. Elements

      In order to recover on a claim of intentional infliction of emotional distress (“IIED”), a plaintiff must show that: (1) the wrongdoer’s conduct was intentional or reckless; (2) the conduct was outrageous or intolerable; (3) there was a causal connection between the wrongdoer’s conduct and the resulting emotional distress; and (4) the resulting emotional distress was severe.1 Actions for IIED have been declared “not favored” in the law, and “liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”2 Where reasonable men may disagree as to whether defendant’s conduct was extreme and outrageous, the question is presented to the jury to determine.3 There is a higher pleading standard for claims of intentional infliction of emotional distress, than for claims of negligent infliction. For IIED, the plaintiff must allege all facts necessary to establish the cause of action. Courts generally require the plaintiff to allege physical symptoms of emotional distress, but there have been exceptions to the general rule.4 IIED claims have a two-year statute of limitations.5

    3. Cases

      1. Womack v. Eldridge, 210 S.E.2d 145 (Va. Sup. Ct. 1974).
        • Procedural Posture: The trial court jury returned a verdict for Plaintiff for $45,000. The trial court set aside the verdict on the ground that there could be no recovery for emotional distress in the absence of physical damage or other bodily harm. This court granted Plaintiff a writ of error.
        • Law: IIED.
        • Facts: Defendant, employed to investigate cases for attorneys, was employed by a criminal defendant and his attorney to obtain a photograph of Plaintiff to be used as evidence in the trial of the criminal defendant, who was charged with sexually molesting two young boys. Defendant went to Plaintiff’s home and told him she was from the newspaper and was writing an article on a skatepark, where Plaintiff worked as a coach. Defendant asked Plaintiff if she could take a photo of him for publication with the article, and he consented. Defendant delivered Plaintiff’s photo to the criminal defendant’s attorney, who showed Plaintiff’s photo to the two young boys and asked if Plaintiff was the one who molested them—they said he was not. The prosecutor then asked to see the photo and requested more information about the person shown in it. Defendant was called to the stand, and she supplied Plaintiff’s name and address. The prosecutor then called Plaintiff to testify as to the circumstances under which his photo was taken. Plaintiff testified that he suffered great shock, distress, and nervousness because of Defendant’s fraud and deceit, and her wanton, willful and malicious conduct in obtaining his photo and turning it over to the criminal defendant’s attorney to be used in court. He suffered great anxiety as to what people would think of him and feared he would be accused of molesting the boys. He was unable to sleep while the matter was being investigated.
        • Outcome: The court held that reasonable men may disagree as to whether Defendant’s conduct was extreme and outrageous and whether Plaintiff’s emotional distress was severe, and thus those questions were for a jury to determine. A jury could conclude from the evidence that Defendant willfully, recklessly, intentionally, and deceitfully obtained Plaintiff’s photo without considering the effect it would have on him. The court found there was nothing in the evidence suggesting Plaintiff had any involvement in the child molesting cases, and the only possible excuse for involving Plaintiff was because the criminal defendant was arrested at the place where Plaintiff was employed. The court held that a reasonable person would or should have recognized the likelihood of serious mental distress that would be caused by involving an innocent person in child molesting cases, particularly given the risk that a finger could have been pointed at him.
        • Special Notes: This case may be particularly useful precedent for victims who consented to a perpetrator photographing them, but under the perpetrator’s false pretenses. The court’s emphasis on Plaintiff’s severe emotional distress suggests that in the absence of physical injuries, the emotional distress victims suffer must be substantive and severe.
      2. Shifflett v. Food Lion, Inc., 45 Va. Cir. 475 (1998).
        • Procedural Posture: The matter was before the court on demurrers filed by two Defendants to the Motion for Judgment.
        • Law: IIED.
        • Facts: Plaintiffs, two customers of a grocery store, observed one Defendant, the grocery store bagger, looking down at them from the ceiling of the women’s restroom, while they were in a state of partial undress. The Defendant had been directed to collect bottles and other trash from above the ceiling of the men’s room. The Plaintiffs suffered anxiety, anger, and fear of sexual assault as a result. One Plaintiff felt tightness in her chest, which added to her fear because she had a history of heart problems. After she reported the Defendant’s actions to the store and realized the store management did not intend to discipline the employee, she became embarrassed and angry. One week after the incident, she inadvertently urinated in her clothing because of her reluctance, due to the employee’s actions, to use the public restroom at another grocery store. She also suffered aftereffects, including becoming nervous when thinking of the event, and fear and unwillingness to use other public restrooms, leading to great discomfort when out in public, and a loss of trust in the safety of all businesses. The other Plaintiff felt nauseous for 30 to 45 minutes after the incident, and suffered aftereffects, including fear and unwillingness to use public restrooms, and anxiety at the prospect of going out in public due to her fear that she will need, but be unable to use the restroom at a public place. When she went out in public, she refrained from taking medicine with a diuretic effect to lessen the changes that she would have the urge to use the restroom. The absence of this medicine caused her to experience shortness of breath and other uncomfortable side effects. She was also unable to sleep on certain nights due to her recollection of the incident. She was also inconvenienced by finding herself unable to shop that that particular grocery store.
        • Outcome: Because Plaintiffs suffered objective physical injury, Defendants’ demurrer was overruled.
        • Special Notes: In order to recover for IIED, a victim of nonconsensual pornography must show physical injury, which may include physical effects of anxiety and embarrassment caused by the nonconsensual posting.
    4. Practice Pointers

      A plaintiff who is able to show physical symptoms, including physical effects of anxiety and embarrassment, has a stronger claim of IIED. If a plaintiff is not able to show physical symptoms, he or she must show severe emotional distress succeed on an IIED claim.

    1. Supervalu, Inc. v. Johnson, 666 S.E.2d 335, 369 (Va. Sup. Ct. 2008). 

    2. Shifflett v. Food Lion, Inc., 45 Va. Cir. 475, at *2 (1998). 

    3. Id. 

    4. Id. 

    5. Coles v. Carilion Clinic, 894 F. Supp. 2d 783, 796 (W.D. Va. 2012). 

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  7. Negligent Infliction of Emotional Distress (“NIED”)

    1. Introduction

      In Virginia, there is a common law cause of action for negligent infliction of emotional distress. However, plaintiffs must show a physical injury to succeed on a negligent infliction of emotional distress claim.

    2. Elements

      To establish a claim of negligent infliction of emotional distress (“NIED”), plaintiffs must sufficiently allege: (1) physical injury (2) proximately caused (3) by negligent conduct (4) wantonly inflicted by defendants (5) upon plaintiff.1 Plaintiffs must show clear and convincing evidence of “symptoms” or “manifestations” of physical injury, not merely of an underlying emotional disturbance.2

    3. Cases

      1. Elrod v. Busch Ent. Corp., No. 4:09cv164, 2010 WL 5620918 (E.D. Va. Dec. 14, 2010)
        • Law: NIED
        • Facts: Three Plaintiffs sued Defendant amusement park and its employee for sexual assault in conjunction with operation of an amusement park. Plaintiffs alleged as a result of Defendant’s acts, they have suffered severe mental and physical pain, anguish, indignity, embarrassment and humiliation, and expenses in treating psychological damage.
        • Outcome: The court held that Plaintiffs failed to sufficiently allege physical injury resulting from the amusement park’s negligent infliction of emotional distress. “Physical contact” was not enough, without alleging a contemporaneous physical injury.
        • Special Notes: This case indicates that unlike for IIED, for NIED there must be an actual physical injury, as opposed to physical symptoms from emotional disturbance.
    4. Practice Pointers

      In order to succeed on a negligent infliction of emotional distress claim, the plaintiff must show an actual physical injury, not physical symptoms from emotional disturbance.

    1. Guerrero v. Deane, No. 1:09CV1313, 2010 WL 670089 (E.D. Va. Feb. 19, 2010). 

    2. Elrod v. Busch Ent. Corp., No. 4:09cv164, 2010 WL 5620918, at *3 (E.D. Va. Dec. 14, 2010). 

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  8. Injurious Falsehood/Slander of Title

    1. Introduction

      In Virginia, there is a common law cause of action for slander of title separate from defamation and the statutory cause of action for “insulting words.” Unlike defamation and “insulting words,” slander of title arises when one publishes false words that disparage another’s property, causing that person special damages.

    2. Elements

      The Restatement (Second) of Torts includes slander of title under the broader topic of injurious falsehood. Injurious falsehood holds that one who publishes a falsehood is liable for pecuniary loss to another if: (a) he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and (b) he knows that the statement is false or acts in reckless disregard of its truth or falsity. The Restatement (Second) defines slander of title as a particular form of injurious falsehood that involves disparagement of property in land, chattels, or intangible things.1 There is a two-year statute of limitations for slander of title.2

    3. Cases

      1. Gigante v. Target, Inc., 52 Va. Cir. 141 (2000).
        • Procedural Posture: This matter appeared before the court on Defendants’ Demurrer to Amended Motion for Judgment.
        • Law: Slander of title.
        • Facts: Both Plaintiff and Defendants were engaged in insurance sales. Defendant sent Plaintiff a notice that their contractual relationship was terminated. Plaintiff sued Defendants for a number of causes of action, including slander of title. The action for slander of title arose from the notice of termination letter Defendants sent to Plaintiff, which Defendants then sent to their principals. Plaintiff alleged that Defendants published the letter when they sent it to their principals, and that the publication caused the principals to treat the subagents as their own agents. The Plaintiff claimed they suffered lost commissions and treatment of the subagents as direct agents for the principals.
        • Outcome: The court found that Plaintiff did not have a property right in addition to its contractual right in its agency relationship with each subagent, and thus did not state a cause of action for slander of title.
        • Special Notes: Insofar as a person has a property interest in his or her name and likeness, he or she may state a claim under slander of title if someone publishes a false statement disparaging that person’s name or likeness.
      2. Lodal v. Verizon Va., Inc., 74 Va. Cir. 110 (2007).
        • Procedural Posture: Plaintiffs sued Defendants for multiple causes of action, including slander of title. This matter was before the court on Defendant’s demurrer.
        • Law: Slander of title.
        • Facts: Defendant, Verizon, had an easement over Plaintiffs’ property to lay wire, granted by a previous owner. Over 12 years later, Verizon made improvements to its cable laid over the easement, and Plaintiffs discovered the cable shortly after. Thereafter, Verizon entered Plaintiffs’ lot and began excavation and other work to install new fiber optic cable. Plaintiffs ejected Verizon’s workers from Plaintiffs’ property when they failed to provide proof of a valid easement. Verizon then ignored Plaintiffs’ instruction not to enter their property without proof of a valid easement. While Plaintiffs were out of town, Verizon workers dug a trench, laid new cable, and marked a roadway on plaintiffs’ property with paint. Verizon then entered Plaintiffs’ property at least twice more without plaintiffs’ knowledge and in contravention of their express direction to stay off the lot pending resolution of the easement dispute. Plaintiffs alleged that Verizon slandered their title by publishing statements to Plaintiffs, their neighbor, and others, that Verizon had rights to Plaintiffs’ property, including a utility easement, that were false and made with intent to harm Plaintiffs’ valuable interest in their property.
        • Outcome: Plaintiffs failed to allege special damages; they only asked for specific sums that relate to the physical damage to their lot and exemplary or punitive damages. They failed to indicate special damages that flow from the words uttered by the Defendants.
        • Special Notes: A claim for slander of title must allege special damages that flow from the words uttered by the slanderer.
    4. Practice Pointers

      In cases in which a defendant uses a plaintiff’s name or picture without the plaintiff’s consent, as under the statute, one may also wish to raise a slander of title claim if that defendant also published false words that disparaged the plaintiff’s name or picture. However, plaintiffs must take care to allege special damages that flow from the defendant’s disparagement of the plaintiff’s name or picture.

    1. Gigante v. Target, Inc., 52 Va. Cir. 141, at *5 (2000). 

    2. Koz v. Wells Fargo Home Mortg., 83 Va. Cir. 96, at *6 (2011). 

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  9. Conspiracy

    1. Introduction

      Virginia common law recognizes a cause of action for civil conspiracy.

    2. Elements

      A civil conspiracy is a combination of two or more persons, by some concerted action, to accomplish some unlawful purpose, or to accomplish some purpose not unlawful in itself, by unlawful means. The existence of an unlawful agreement is not enough to support a civil conspiracy action; there must be an unlawful overt act that serves as the source of the plaintiff’s injury.1 The limitations period for a civil conspiracy is based on the statute of limitations for the underlying act.2

    3. Cases

      1. Donato v. Krogh, Chancery No. 17918, 1998 WL 972247, at *2 (Va. Cir. Ct. June 18, 1998).
        • Procedural Posture: This case was before the Court on demurrers and special pleas filed by the respondents.
        • Law: Conspiracy to defame and conspiracy to inflict emotional distress.
        • Facts: The conspiracy to defame claim was based on the disclosure by a representative of the Department of Social Services of allegedly false and damaging statements to respondents’ counsel. The conspiracy to inflict emotional distress claim was based on two Defendants’ conspiring to interfere with the parental relationship of the complainant with his children, and in furtherance of that plan, making false and damaging statements concerning the complainant’s sexual abuse of his children to respondents’ counsel and the Court. He claimed that these statements caused him to suffer severe mental anguish.
        • Outcome: To the extent the false and damaging statements made to respondents’ counsel were made during a court proceeding, they were privileged and no cause of action could lie. The court sustained the demurrer to the count of conspiracy to inflict emotional distress.
      2. Doe v. Bruton Par. Church, 42 Va. Cir. 467 (1997).
        • Procedural Posture: The matter was before the court on demurrers and motions.
        • Law: Civil conspiracy to conceal and misrepresent fraudulently.
        • Facts: Plaintiffs were 27 individuals allegedly injured by some or all of the defendants, a church and various members of the church. They included fourteen children and thirteen parents. Plaintiffs alleged a conspiracy by the church to conceal a church employee’s sexual abuse of the children. The Plaintiffs alleged that the purpose of the church’s conspiracy was to shield the church from civil liability, and the means Defendants used to shield themselves was fraudulently concealing or misrepresenting the nature and extent of the employee’s alleged sexual misconduct, which plaintiffs argued was unlawful, actionable fraud.
        • Outcome: Shielding from civil liability was not an unlawful purpose. In order to determine whether there was a conspiracy vis-à-vis unlawful means, the court considered the underlying claim of fraud. The Plaintiffs did not adequately allege the elements of a cause of action for fraud, because with respect to concealment of facts, they did not allege breach of a legal duty, or any of Defendants’ knowledge of the abuse.
        • Special Notes: For claims of conspiracy via unlawful means, the court will look to the merits of the underlying claim.
    4. Practice Pointers

      One may wish to raise a civil conspiracy claim where two or more defendants engage in unlawful activity described in other sections.

    1. Va. Heartland Bank v. Roberts, 46 Va. Cir. 71, at *3 (1998). 

    2. Hurst v. State Farm Mut. Auto. Ins. Co., No. 7:05CV00776, 2007 WL 951692 at *5 (W.D. Va. Mar. 23, 2007). 

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  10. Fraud

    1. Introduction

      Virginia common law recognizes a cause of action for fraud, in cases where one intentionally and knowingly makes a false representation of material fact, with intent to mislead, on which another party relied to his or her detriment.

    2. Elements

      A party alleging fraud must prove by clear and convincing evidence (1) a false representation (2) of a material fact (3) made intentionally and knowingly (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to him.1 For a charge of constructive fraud, intent to deceive is not required.2 Fraud has a two-year statute of limitations.3

    3. Cases

      1. Doe v. Harris, No. CL5544, 2001 WL 34773877, at *7–9 (Va. Cir. Ct. Apr. 11, 2001).
        • Law: Actual and constructive fraud.
        • Facts: Plaintiffs, parents of a child with a brain injury, sued the child’s school, alleging that the school intentionally misrepresented its enrollment availabilities and its ability to care for their child, during pre-matriculation discussions. As a result of those deficiencies, they claimed their child was insufficiently cared for at the school, as evidenced by allegations including her poor hygiene, physical exhaustion, minor injuries, and sexual assault by another classmate.
        • Outcome: The court found that the school was bound to give information upon which the safety of third persons—the students—depended, and they should have expected that the child would have been put in peril by their alleged actions. Plaintiffs properly pled the requisite elements of fraud, including the parents’ reliance, and resulting harm to the child.
        • Special Notes: This case may indicate that if a person relies on someone’s misrepresentation to a third person’s detriment, he or she may have a cause of action for fraud.
    4. Practice Pointers

      A plaintiff may wish to bring a cause of action for fraud where the defendant made a promise to keep the plaintiff’s intimate photo or video secret, and the plaintiff agreed to either be photographed or recorded, or give the defendant the photograph or video, based on the defendant’s promise of secrecy. A plaintiff may articulate a theory of harm based on the unauthorized use of name or picture statute.

    1. Van Deusen v. Snead, 441 S.E.2d 207, 209 (Va. Sup. Ct. 1994). 

    2. Doe v. Harris, No. CL5544, 2001 WL 34773877, at *7–9 (Va. Cir. Ct. Apr. 11, 2001). 

    3. Parker-Smith v. Sto Corp., 551 S.E.2d 615, 619 (Va. Sup. Ct. 2001). 

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  11. Unjust Enrichment

    1. Introduction

      Virginia common law contains a cause of action for unjust enrichment as a quasi-contract claim.

    2. Elements

      To establish a claim of unjust enrichment, a claimant must satisfy three elements: (1) a benefit conferred on the defendant by the plaintiff; (2) knowledge on the part of the defendant of the conferring of the benefit; and (3) acceptance or retention of the benefit by the defendant in circumstances that render it inequitable for the defendant to retain the benefit without paying for its value.1 Unjust enrichment is a quasi-contract claim based on equity.2 The statute of limitations for unjust enrichment is three years.3

    3. Cases

      1. Jackson v. Michalski, No. 3:10-cv-00052, 2011 WL 3679143 (W.D. Va. Aug. 22, 2011).
        • Procedural Posture: The matter was before the court on several Motions to Dismiss filed by Defendants for lack of personal jurisdiction, insufficient process, and failure to state a claim.
        • Law: Unjust enrichment.
        • Facts: Plaintiff, rock musician, sued bandmate for defamation, arising from an article he posted about him on a punk rock online magazine, in which Defendant called Plaintiff a “clinically schizophrenic bass player,” and a self-described “TRUE son of the Confederacy,” and described an instance in which Plaintiff unveiled a piece of art at a performance that consisted of a wooden box with prison bars wrapped in hard-core pornography.
        • Outcome: Plaintiff’s claim for unjust enrichment was preempted by his copyright claim.
        • Special Notes: If a victim of nonconsensual pornography brings a copyright claim against the perpetrator, he or she may not be able to bring an additional unjust enrichment claim.
      2. Christian Broad. Network, Inc. v. Busch, No. 2:05cv558, 2006 WL 2850624 (E.D. Va. Oct. 3, 2006)
        • Procedural Posture: This matter was before the court on Plaintiffs’ Motions to Dismiss for failure to state a claim.
        • Law: Unjust enrichment.
        • Facts: Plaintiff, user of a weight loss shake, sued Defendants, creator of the shake and the broadcast network that publicized the shake, for misappropriation of his image and intentional infliction of emotional distress, for using his image to promote the shake. At various points, Plaintiff had given his consent to the use of his image in association with the shake. Plaintiff alleged that Defendant was unjustly enriched as a result of using Plaintiff’s photographs to promote Defendant’s shake, and therefore Plaintiff is entitled to restitution. Plaintiff stated he gratuitously provided his photos to Defendant for non-commercial purposes only, and Defendant retained and accepted Plaintiff’s photos without compensating him for commercial use, retaining the benefit without paying for its value.
        • Outcome: The court held that Plaintiff properly stated a claim for unjust enrichment.
    4. Practice Pointers

      As in the Busch case, a cause of action for unjust enrichment may be useful in circumstances in which a victim of nonconsensual pornography gives his or her photo to another for that other person’s personal, non-commercial use, and that person makes a non-personal or commercial use of the photo.

    1. R.M. Harrison Mechanical Corp. v. Decker Industries, Inc., 75 Va. Cir. 404, at *3 (2008). 

    2. Christian Broad. Network, Inc. v. Busch, No. 2:05cv558, 2006 WL 2850624, at *7 (E.D. Va. Oct. 3, 2006). 

    3. East West LLC v. Rahman, 873 F. Supp. 2d 721, 730 (E.D. Va. 2012). 

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