749 S.E.2d 307
Va.2013Background
- On April 16, 2007, an early-morning shooting occurred in West Ambler Johnston Hall; police believed it was a targeted, likely domestic, incident and that the shooter had fled. Virginia Tech administrators were notified and a campus-wide email about the dormitory shooting was sent at 9:26 a.m.
- At ~9:45 a.m., Seung-Hui Cho began the mass shooting at Norris Hall; Erin Peterson and Julia Pryde were killed. A second campus-wide email at 9:50 a.m. warned that a gunman was loose and advised sheltering in place.
- Police initially issued a BOLO for the West Ambler victim’s boyfriend and investigated that angle; later forensic connections tied Cho to both shootings but that information developed after Norris Hall.
- Administrators of the victims’ estates sued the Commonwealth under the Virginia Tort Claims Act, alleging Virginia Tech/Commonwealth employees had a special relationship with students that imposed a duty to warn of third-party criminal acts and that failure to warn caused the deaths.
- A jury awarded $4 million to each family (reduced to statutory caps); the Commonwealth appealed, challenging (inter alia) existence of the duty to warn and the sufficiency of evidence to impose such a duty.
- The Supreme Court of Virginia assumed (without deciding) a special relationship existed but held, as a matter of law, that under these facts no duty to warn of third-party criminal acts arose and reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a special-relationship-based duty to warn/protect existed | Virginia Tech students were business invitees with a special relationship imposing a duty to maintain campus safety and warn of known/foreseeable third-party threats | No such duty arose as a matter of law under these facts; special-relationship exceptions are narrow | Court assumed special relationship but held no duty to warn arose as a matter of law |
| Standard for imposing duty to warn of third-party criminal acts | Duty arises when danger is known or reasonably foreseeable (as instructed to jury) | For business owner/invitee relationships, Virginia law requires an "imminent probability" of harm—a higher standard—before imposing duty | Court emphasized precedents: for business/invitee the higher imminent-probability standard applies, but even under the lower standard plaintiffs failed to show foreseeability |
| Foreseeability based on facts known before Norris Hall shooting | Plaintiffs: prior dorm shooting and unknown shooter made further campus attacks foreseeable; failure to warn was negligent | Defendants: facts indicated a likely domestic, isolated incident; authorities believed the shooter had fled and posed no danger to others | Court found the available information did not establish known or reasonably foreseeable danger to students in Norris Hall; no duty to warn existed |
| Causation and jury-instruction challenges | Plaintiffs: jury instructions and verdict support liability and causation findings | Defendants: erroneous instructions and insufficient evidence of duty/causation warrant reversal or new trial | Court reversed on duty ground and did not reach causation or detailed instruction rulings; final judgment for Commonwealth |
Key Cases Cited
- Thompson v. Skate America, Inc., 261 Va. 121 (stating general rule no duty to protect from third-party criminal acts absent special circumstances)
- Burdette v. Marks, 244 Va. 309 (narrow exceptions to no-duty rule; duty may arise where officer observes assault and fails to intervene)
- Taboada v. Daly Seven, Inc., 271 Va. 313 (innkeeper-type duties: known or reasonably foreseeable danger can create duty where specific warnings or patterns establish imminent risk)
- Yuzefovsky v. St. John’s Wood Apartments, 261 Va. 97 (business owner/invitee duty to warn requires imminent probability of injury; high crime rates alone insufficient)
- Connell v. Chesapeake & Ohio Ry. Co., 93 Va. 44 (common carrier/passenger standard and limits on anticipating rare violent crimes)
- Acme Markets, Inc. v. Remschel, 181 Va. 171 (the law defines duty; jury decides performance)
- Kellermann v. McDonough, 278 Va. 478 (whether a legal duty exists is a question of law reviewed de novo)
- A.H. v. Rockingham Publishing Co., Inc., 255 Va. 216 (employer/employee duty limited to known or reasonably foreseeable dangers)
- Dudas v. Glenwood Golf Club, Inc., 261 Va. 133 (prior robberies did not establish imminent probability of assault as a matter of law)
- Burns v. Johnson, 250 Va. 41 (short temporal windows of escalating danger may create duty in limited circumstances)