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
Agree that caps are bad… And that premium usually rise anyway…. I trust mespos and the professors knowledge on this Sct…. But, and questioning how convoluted the logic must be….
Vince:
Virginia’s damage cap is a hard cap. It applies to all damages noneconomic and otherwise. That’s why it’s insidious. If you have 3 million in economic damages you get $100000 if it’s the state causing your woes or about $2 million if its a healthcare provider. That’s balancing your budget on the backs of victims. Also it is not clear that caps cause lower premiums as a recent Gerorgetown University study proves. The evidence is mixed as many factors affect premium costs. Finally Virginia insurance premiums are not 6.5 times less than Maryland premiums as your theory would suggest. The difference is minimal as my cousin who writes policies in Baltimore advises me.
mespo727272,
Same principle applies. Both the private insurer and the state pass the cost of the risk onto those who pay, policy holders for the private insurer, taxpayers for the state. It make no difference if the money is paid through premiums or directly through a judgment or settlement. Actually, the fact that it is the self-insured state exacerbates the situation. Where the state is the insured, everyone must pay more for increased exposure, not just the policy holders. The private insureds can fairly easily choose to leave their insurer for another. Taxpayers can’t readily move, although some do, mostly to avoid higher taxes caused by things like, for example, a lack of a cap. The state is not constrained by market forces. It can’t go out of business.
Besides, what would you do? Have a cap only for private insureds and none for the governmental entities? Some states do the reverse and cap only awards against governmental entities which makes more sense since the state faces no competition and is not constrained by people seeking an insurer with lower exposure.
Finally, saying caps don’t reduce premiums denies reality. Premiums are a direct function of the amount risk. The higher the risk, the higher the premium. If you don’t believe that, look at your own insurance. Your policy limits are a cap, just like the Virginia statutory cap. Your policy limits limit the insurer’s risk, just like a cap. When you raise your policy limits, your premiums go up. Why? Because the risk to the insurer goes up.
The basic timeline of events that morning http://en.wikipedia.org/wiki/Virginia_Tech_massacre_timeline.
P.S. I’m ignorant of all the facts of the case, so I’m not aware of any actions they might have taken. Forgive me if they actually did send an email like what I described.
Am I correct in assuming that a mere email to its students stating that there was a murder in the dorm and the perpetrator had not been caught and be alert for blah blah blah would have been enough to avoid the whole mess (from a lawsuit perspective), even if it didn’t prevent the massacre? That’s what I don’t get, as mespo described, they obviously were concerned and knew something further was a possibility. Were they afraid of starting a panic or just that freaking incompetent?
Caps have never reduced premiums. Denying victims full justice does. You can read the Harvard study on tort reform yourself. Plus insurance has nothing to do with this case. The state is generally self-insured.
I wonder how folks feel about the Bologna family striking out in court against the county of San Francisco. This was the case where an illegal immigrant who was a known gang banger was shielded from ICE even though they knew he was a violent felon. This illegal wound up murdering three members of that family and wounding a son in a road rage attack. They had released this guy not too long before, and knew of his violent nature.
The surviving family members sued San Francisco for negligence in protecting the crook from his well deserved trip home via deportation. The court held that the city has no duty to protect its citizens from criminals.
Two points: First, an insurance law professor once correctly posited that insurance is socialization of the risk. All the money paid by insurance carriers for claims is spread among those persons who pay premiums, plus a little extra for the carrier’s profit. Caps reduce the pay outs, thereby reducing premiums. High or no caps mean that a few (and their lawyers) get a lot and the rest of us pay more. Low caps mean the few don’t get as much, but the general public (read proletariat if you wish) benefits from lower insurance rates. So, consider the cap as sort of wealth distribution only before the fact. The last time I checked, the Maryland cap was 6 1/2 times the Virginia cap and insurance rates are higher in Maryland.
Second, I believe that in every state that has a cap, the cap applies only to non-economic damages. Medical expenses, wages losses, etc. get compensated in full, regardless of the cap. Nobody gets stiffed for their medical bills or lost wages. So, what the cap really caps is the money received for pain and suffering of the victims and their relatives with a little something for the lawyers. The issue boils down to: does awarding large amounts for pain and suffering for a few justify higher rates for the many?
rafflaw:
Absolutely not. I’m forming my own wacked out group. I call it the Black Powder Party.
Gregg:
“We are becoming a bubble wrap society. It is truly a tragedy to see so many people killed. But, to hold the University liable seems incredible. How are they to prevent that crime. ”
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You think this way because you have a rudimentary understanding of the law and no insult is intended by this remark. The essence of the civil tort law is accountability based on duty. Duty arises, inter alia, from relationships including those special ones like parent-child or business owner/invitee. In the law, when a duty arises there is a responsibility to act as a reasonably prudent person would act in carrying out that duty. The court in Montgomery County held a duty existed from Tech to its students to warn them of foreseeable imminent harm as was obvious to most any person except the distinguished members of the Va Supreme Court. The negligence was proven to the jury satisfaction in failing to carry out that duty.
The law comprising this duty is the considered public policy of the Commonwealth of Virginia until yesterday when the court ignored evidence that didn’t fit its political sentiments and condoned the negligence of Va Tech that its own citizens found had occurred. It has nothing to do with bubble wrap.
Welcome to Virginia, Inc.
Mespo,
I detect a hint of sarcasm in your last reply!! 🙂
We are becoming a bubble wrap society. It is truly a tragedy to see so many people killed. But, to hold the University liable seems incredible. How are they to prevent that crime. Being in law enforcement for 20 years plus, I can tell you that we can prevent crime only by occupation. Short of that it will seep in around us. Human nature at its lowest. I can tell you that you wont like the occupation because the net is so broad and then folks will be complaining that we are being nitpicky. I don’t think there’s an answer here other than, “be careful, know your surroundings, and take your safety personally.” The government, businesses, schools, malls can not do it for you. Take the ear buds out, put down the dumb phone and pay attention. Listen to your intuition, it usually is never wrong.
Persona:
“What about Virginia Tech’s gross negligence in creating an unsafe campus environment by constructing a gun free zone which stripped it’s students and faculty of the ability to defend themselves when confronted by a lunatic armed with a gun while on a murderous rampage?”
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Right you are. We all know that battlefields where everybody has guns is the safest place to be on theplanet. I say we arm everybody in courtrooms, bars, sporting events, and political debates. Well have the safest damn place since Dodge City. Yipee Ki- Yay!!!
What about Virginia Tech’s gross negligence in creating an unsafe campus environment by constructing a gun free zone which stripped it’s students and faculty of the ability to defend themselves when confronted by a lunatic armed with a gun while on a murderous rampage?
HUmpin:
“If you own an apartment building with four units do you owe a duty to warn the others or all in the neighborhood about JoeBob to whom you rent because he was in Nam and is a bit wacko?”
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That’s the essence of the imminent harm requirement. If JoeBob in your example calls you and says “I’m going to waste everybody here,” you’d better get on the phone to 911. If he’ s just touched you can presume he will obey the law unless you have reason to believe otherwise. It’s really not that complicated.
At Va Tech they knew (in their own words) they had a “shooter on the loose” who had killed two people. They had called in Blacksburg and Va Tech ERT (Swat teams) and had them staged and ready to deploy on campus. They had locked the administration bldg down and dilly-dallied for two hours trying to figure what to do. That’s a known threat of imminent harm and of eminent stupidity as the Montgomery jury unanimously held.
If you own an apartment building with four units do you owe a duty to warn the others or all in the neighborhood about JoeBob to whom you rent because he was in Nam and is a bit wacko? The ruling seems right to me. You folks who want the school responsible ought to think of the consequences to yourself. Do you live in a condo? You are part of the group. Do you live in a neighborhood association of homes in a subdivision? Duty to warn of JoeBobs of the world. Do you have a kid who is a bit wacko? It goes on and on. We are not a socialist nation.
Bron:
“how is the youth football going? How is the team doing?”
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I gave it up this year. With all the new information about concussions and the severe effects on adolescents I just couldn’t justify it anymore. The big problem is not the “big hit” type of concussions we see in games but the more frequent subconcussive hits we see in practice on every down. My law partner and I talked about it and I couldn’t see my way clear to do it. My firm even dropped our high school award we gave every week to the biggest “Impact Player.”
people love Virginia Tech.
Maybe they thought it would be too much for the school to handle?
mespo:
how is the youth football going? How is the team doing?