The Virginia Supreme Court waited for Halloween to release a truly scary ruling where it overturned a jury verdict to families of the victims of the 2007 shooting massacre at Virginia Polytechnic Institute. We have previously discussed the absurd state cap on such verdicts which led to the reduction of the award to $100,000 for each family — an insulting amount of reduced damages that eliminated the deterrent impact of such legal judgments. Now the Virginia Supreme Court has gone further and wiped out the remaining award on the ground that Virginia Tech had no duty to warn the students despite national condemnation of the university for gross negligence before and during the shooting spree by student gunman Seung-Hui Cho.
The ruling is a major curtailment of “special relationship” cases where defendants can be held liable for criminal acts of third parties where such crimes are foreseeable. In the 15-page opinion, Justice Cleo Powell ruled that “even if there was a special relationship between the Commonwealth and students of Virginia Tech, under the facts of this case, there was no duty for the Commonwealth to warn students about the potential for criminal acts by third parties.”
While proximate causation is often cut off by the intentional torts or criminal conduct of third parties, courts have extended liability in some cases. For example, in Weirum v. RKO decision holding a radio station liable for injuries caused to a third party when teenagers drove recklessly to find The Real Don Steele in his marked van. The court held that the reckless driving was a foreseeable response of teenagers to the promise of free concert tickets. Likewise, in the case of Kline v. 1500 Massachusetts Avenue. In Kline a landlord was found liable for not taking precautions to protect tenants from crime in an apartment building in Washington. That case involved a tenant who remained on the property during years of decline of the neighborhood in Washington, D.C., but continued as an at-will tenant. She was aware of the crime in the area and the building. However, the court still held that the landlord was liable even though he met housing regulations. He still violated the implied warranty of habitability.
However, the Virginia Supreme Court ruled that no such duty existed for Virginia Tech when Cho killed 32 students and faculty members before shooting himself. I previously wrote about the tragedy. The university initially said the 7 a.m. incident appeared “domestic” sent an email that did not instruct people to avoid windows or hallways. Later, it sent out an email warning students to stay inside and avoid windows because a gunman was loose on campus.
Faced with the incredibly low state cap, most parents settled for $100,000. However, the parents of Erin Peterson and Julia Pryde fought the university to try to secure some level of accountability. The jury agreed that the university was negligent and awarded $4 million for each family. It was in my view the correct verdict. That amount however was reduced to $100,000.
In the opinion below, the Court relies on the general rule a person does not have a duty to warn or protect another from the criminal acts of a third person, though it did accept that “narrow exceptions” applied. Quoting Yuzefovsky v. St. John’s Wood Apartments, 261 Va. 97, 106, 540 S.E.2d 134, 139 (2001), the Court noted:
the plaintiff must establish that there is a special relationship, either between the plaintiff and the defendant or between the third party criminal actor and the defendant. The necessary special relationship may be one that has been recognized as a matter of law . . . or it may arise from the factual circumstances of a particular case.
The case would appear easily placed within prior precedent governing business/invitee or landlord/tenant relationships. However, the court ruled that the trial court “was [in] error because our case law is clear that when the relationship is that of business owner/invitee, the duty to warn arises only if there is an imminent probability of harm from a third party criminal act.” However, it went beyond finding no imminent probability. The court dismisses the lower standard applied to common carriers and others in determining negligence. Instead, the Court adopts a view that is remarkably generous toward Virginia Tech and its unsupported assumptions about the shooter:
Here, even if this Court were to apply the less stringent standard of “know or have reasonably foreseen,” there simply are not sufficient facts from which this Court could conclude that the duty to protect students against third party criminal acts arose as a matter of law. In this case, the Commonwealth knew that there had been a shooting in a dormitory in which one student was critically wounded and one was murdered. The Commonwealth also knew that the shooter had not been apprehended. At that time, the Commonwealth did not know who the shooter was, as law enforcement was in the early stages of its investigation of the crime. However, based on representations from three different police departments,Virginia Tech officials believed that the shooting was a domestic incident and that the shooter may have been the boyfriend of one of the victims. Most importantly, based on the information available at that time, the defendants believed that the shooter had fled the area and posed no danger to others.
The court then ordered judgment in favor of Virginia Tech. It is an opinion that not only denies recovery to these families but will make it harder to hold institutions liable in the future under special relationship claims. The opinion should not only prompt a reexamination of Virginia tort law but a serious debate over the gross unfairness imposed by the damage cap – which has remained unchanged for decades in many states.
Here is the opinion: 1121717