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
Mespo,
I had a different and less flattering word in my mind, but pretzel works!
That’s a terrible thing to say about pretzels, mespo.
Especially the giant soft kind you get at the ball game. They only have two loops and a twist. The logic here is much more convoluted than that.
emw1:
“One wonders how Judge Cleo would feel if it were her family that was murdered.”
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The crazy thing emw1 is that Justice Cleo Powell (whom I have tried cases before when she was on the trial bench) is the most plaintiff oriented of the bunch. That should tell you something.
This is “pretzel justice” by the never plaintiff friendly VASC. “Pretzel” because they did somersaults to modify the existing standard for this state actor and then completely ignored facts showing imminent harm like the two roving SWAT teams on campus looking for the “domestic” shooter. Plaintiff’s lawyers in Virginia (like Bob Hall who handled this case) are the best; they have to be with this SCVA.
Ditto to what Darrel said.
Here’s a question: Did the Plaintiffs who settled for the $100,000 get their award? Is it only those who appealed who will receive nothing?
And another thing, did the Supreme Court of Virginia just refer to Virginia Tech as a “business”? For some reason I’m bit confused about that.
RWL: Awards in negligence actions are based on the defendant’s breach of a duty owed to plaintiff, not whether the plaintiff should have been kept safe from injury in a general sense or whether the injured person deserves some compensation for an injury or whether the defendant is rich. I admit I am not familiar with all the available information concerning the shootings. However, my understanding is that the administration’s view of what was occurring and its conclusion that there was limited risk to other students were not outside the zone of what I would consider reasonable. I am interested in what acts/omissions you believe fell below the standard of those of a reasonable person in the various administrators’ shoes under the circumstances as they existed at the time.
“If you are not prepared to give specific answers to these questions then I am not sure you are in a position to hold administrators responsible for not answering them either.”
Hear, hear.
I wish people would listen to me and bigfat rather than just run to join the latest moral panic.
What emw1 said:
Billion dollar endowment, and now they are off the hook for $0. I guess you have to attend Penn State, be a male child, and get molested by a university official (not be killed by a lone gunman) in order to receive something from the courts?
If the university banned CC holders from protecting themselves, then THEY must accept the responsibility.
“Extraordinarily negligent inaction in poo-pooing the initial shootings as merely a domestic…etc. ‘
I think I understand the emotion that leads to that conclusion.
But doesn’t the argument that the choices made by university administrators were negligent have to start with facts such as the number of shootings on campus in a specific time period, and the number of shooting that have lead to mass murder in a similar time period.
I have to question the view that prior to this event there was any basis to believe these events were likely to unfold and that therefore action needed to be taken.
Since the shooting the conventional wisdom seems to be to lock down campuses for most any questionable event.
But that standard seems to be based on the conclusion that life is so precious it is better to err on the side of safety – what ever the cost – and not on some calculation that it is reasonable to believe the potential events will occur.
The question has to do with how we reasonably deal with extremely unlikely events – especially when those events could have great effect on public safety.
I have no quarrel with what seems to be current way to handle these events.
But I am not sure that it is reasonable to hold administrators accountable for decisions regarding extremely unlikely events.
If you make administrators liable for extremely unlikely events then you are in effect arguing for contingency plans and preparation for all manner of unlikely events including CBW and IED attacks, tsunami large enough to reach scores of miles inland to the campus, meteors the size of city blocks, invasions of green men. Where does it stop?
Of the contingencies mentioned CBW and IED attack are probably the ‘least unlikely’. But exactly how much do you suggest that the administration spend on gas masks, CBW safe rooms in dorms and lecture halls, blow out roofs and blast deflecting walls? And how much time do you recommend that students and staff train to respond to alerts that a gas attack or bombing is immanent?
It is difficult to specify reasonable steps to prepare for unlikely events. The less likely the event the more events there are that demand preparation. For many of those unlikely events the more damaging they are and the more expensive it is to prepare for them.
Are you sure you think it is wise spending large amounts of money and time preparing for events that will likely never occur?
If you are not prepared to give specific answers to these questions then I am not sure you are in a position to hold administrators responsible for not answering them either.
The Serfs take another one for the elite.
One of the problems in discussions of this case is the common attempt to redirect conversations about the liability issues into acknowledgements of the great losses suffered. The liablity issue is the same whether the gunman killed anyone else or just bruised someone by knocking him over while running away.
The government gets more protection from caps than business in Wi.
One wonders how Judge Cleo would feel if it were her family that was murdered.
What Gene said. These caps do not prevent tort abuse. They simply allow corporations and in this case, Virginia Tech to avoid or profit from their negligence.
Extraordinarily negligent inaction in poo-pooing the initial shootings as merely a domestic…etc. and knowingly by not warning them, exposing the rest of the people on Campus to potential mayhem which did come to pass.
Damage caps are simply wrong in any instance.
Makes sense to me only if un-provable, likely un-discoverable bribes are behind the capricious action of the best Judges money has bought.
I think you are right about the damage cap.
But I have grave doubts about holding the university liable for the actions of a lone lunatic.
This is what leads to the official hyper-over-reactions such as the poptart gun incident. Such judgements will not lead to any substantive increase in security because it is essentially impossible to prevent such rare and particular circumstances.
Neither will the large award bring back the loved ones or help with the healing process.
Reblogged this on Brittius.com.