Tort Law

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Criminal Acts and the related topic of premises liability.    For more information see the page on Wikipedia on cases involving criminal acts and third party liability.

Criminal Acts-Cases

2013 Commonwealth v. Peterson, 286 Va. 349, 749 S.E.2d 307.

This case arises out of the 2007 Virginia Tech shootings. Four million dollar jury verdict is reduced by trial judge to $100,000.00 and then totally vacated by Supreme Court. The relationship of the parties is that of business owner and invitee and in that circumstance owner owes a duty to warn only if he knows of an imminent probability of harm. Although the trial court applied a lesser standard, even that standard could not be met in this case. Secondly from the administrator’s point of view, they believed the shooting was a domestic incident and that the shooter had fled the scene and no longer posed a danger. Under these circumstances there was no duty to warn.

2006 Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428.

Suit by guest against innkeeper for injuries resulting from criminal acts of assault by third person occurring on the hotel property. Trial court was in error in granting demurrer to common law negligence claim in light of innkeeper’s duty to protect guest against reasonably foreseeable injury arising from third party criminal acts but the court was correct in sustaining the demurrer to the guest’s similar claim under Va. Code § 35.1-28. In this case, plaintiff was assured by the desk clerk that the hotel was a safe and secure place for his family. Plaintiff further alleged that the hotel was in a high crime area, that it attracted assaultive crimes, that criminal acts and assaults against employees and guests were occurring and further that the hotel had been informed by the local police department and others that its guests were at risk for harm due to criminal activity. The special relationship of innkeeper and guest imposes a duty of utmost care and diligence to protect the guest against reasonably foreseeable injury from the criminal conduct of the third party.

2001 Dudas v. Glenwood Golf Club, Inc., 261 Va. 133, 540 S.E.2d 129.

Business owner owed no duty to protect invitee from being robbed and shot by unknown third parties on business premises even though two armed robberies and one attempted robbery of business invitees had occurred on premises in preceding month; such level of criminal acts would not have led reasonable business owner to conclude that its business invitees were in imminent danger of criminal assault. There is nothing to indicate that plaintiff in particular was in such danger and it would have been unduly burdensome to require owner to post security force for his protection. There was no finding of a special relationship existing in this instance. Likewise, in this instance there was no duty to warn.

2001 Thompson v. Skate Am., Inc., 261 Va. 121, 540 S.E.2d 123.

Business invitee who was allegedly injured in criminal acts of assault on business premises stated negligence claim against business owner by alleging that owner had specific knowledge of assailant’s propensity to assault its other invitees, had intervened to inhibit that behavior in past, had taken steps to avoid that behavior in future by banning assailant from its premises, and that owner therefore, had duty to protect invitee from assailant’s criminal acts. In this case, special relationship existed between business owner and invitee for purposes of determining whether owner had duty to protect invitee from criminal acts of third persons. In this case, however, parent had no duty to protect victim from criminal acts or assault by parent’s minor son and thus, parent not liable to victim under theory of negligent parental supervision even if assault occurred at public place from which parent knew minor had been banned for aggressive conduct.

2001 Yuzefovsky v. St. John’s Wood Apartments, 261 Va. 97, 540 S.E.2d 134.

Apartment tenant sued landlord and others for negligent failure to protect, negligent failure to warn, and fraud following assault by third party on walkway adjacent to apartment. Supreme court held that landlord did not have duty to protect tenant against criminal acts of assault even assuming that special relationship existed with tenant and that allegations concerning reports of crime on landlord’s premises in three-year period preceding attack were true; landlord having special relationship with tenant does not have duty to take measures to protect tenant against criminal assault unless landlord knows that criminal acts against persons are occurring or are about to occur on the premises which indicate an imminent probability of harm to tenant; landlord did not have duty to warn tenant; alleged statements by landlord’s employee at time of lease signing concerning safety of premises from criminal activity were representations of fact for purposes of fraud claim but damages suffered by tenant did not directly result from fraudulent inducement to enter contract. In this case, tenant had resided at this location for approximately one year, nine months before he was injured and thus, danger to tenant could not have appeared imminent to landlord.

2000 Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 523 S.E.2d 826

Plaintiff who seeks to establish negligence must plead existence of legal duty, violation of duty, and proximate cause which results in injury. Generally, person does not have duty to protect another from conduct of third person consisting of criminal acts. This general rule does not apply when special relationship exist between defendant and plaintiff which gives rise to right of protection to plaintiff or between defendant and third person which imposes duty upon the defendant to control the third person. In this sexual assault case within a psychiatric ward, plaintiff’s pleadings were sufficient to withstand demurrer.

1998 A.H. v. Rockingham Publishing Co., 255 Va. 216, 495 S.E.2d 482.

Thirteen-year-old newspaper boy was sexually assaulted by unidentified young man. There had been three previous assaults of a sexual nature upon other carriers for this newspaper, none of which occurred on route of A.H. Rockingham knew of these prior assaults. Before any duty can arise with regard to conduct of third persons there must be special relationship between defendant and either plaintiff or third person. Such special relationship exists in the context of employer-employee with regard to employer’s potential duty of protecting or warning employee. Supreme Court held that there was such special relationship in this instance. Rockingham, however, in this case had no duty to warn or protect A.H. against harm since danger of assault on plaintiff was not known and was not reasonably foreseeable. Three prior sexual assaults on Rockingham carriers in various locations in City of Harrisonburg in five years preceding this assault were insufficient to raise jury issue of whether sexual attack on plaintiff was reasonably foreseeable. Plaintiff further contends that Rockingham gave inadequate and deceptive warnings regarding risk of criminal acts of assault upon its young carriers. Rockingham’s actions did not give rise to duty to give more complete warning.

1995 Burns v. Johnson, 250 Va. 41, 458 S.E.2d 448.<

Plaintiff abducted from self-service gas station late at night. Assailant was known customer of gas station who had made threatening remarks to attendant on duty. Unbeknownst to employee of gas station, this customer abducted plaintiff and sexually assaulted her. As matter of law, plaintiff failed to establish defendant owed her duty under these circumstances.

1994 Gupton v. Quicke, 247 Va. 362, 442 S.E.2d 658.

Lively threatened plaintiff during argument inside defendant’s cafe. Defendant’s employees then escorted Lively outside where he again threatened plaintiff in presence of employees. Employees then permitted Lively to reenter cafe where he attacked plaintiff. Under these facts defendants had duty to exercise reasonable care to control Lively’s conduct to prevent him from causing criminal acts consisting of physical harm to plaintiff.

1992 Burdette v. Marks, 244 Va. 309, 421 S.E.2d 419.

Generally, there is no duty to control conduct of third person to prevent criminal acts consisting of physical harm to another. This rule not applicable when special relationship exists: (1) between defendant and third person which imposes duty on defendant to control third person’s conduct, or (2) between defendant and plaintiff which gives right of protection to plaintiff. In this case sheriff came on scene of criminal assault yet took no action. Cause of action properly alleged

1992 Wooldridge v. Echelon Serv. Co., 243 Va. 458, 416 S.E.2d 441.

Plaintiff’s decedent was federal employee in office building protected by defendant. Building had controlled entry. Defendant’s employee saw “flash” which presumably was person entering elevator to upper floors, yet security guard took no steps to stop this person. Shortly thereafter decedent assaulted. Plaintiff sues as third-party beneficiary of security contract. Jury issue as to breach of contract and proximate cause since jury could infer that “flash” was assailant.

1991 Dudley v. Offender Aid & Restoration, 241 Va. 270, 401 S.E.2d 878.

Convicted felon serving penitentiary sentence was permitted to reside in privately operated halfway house wherein he was virtually unsupervised and otherwise unrestrained. While there he left premises and proceeded to rape and strangle woman in private residence. Felon had long record of violent criminal acts. Claim was properly stated in pleadings against defendant since plaintiff was member of class consisting of those persons within given area of danger and defendant is not public official.

1990 Marshall v. Winston, 239 Va. 315, 389 S.E.2d 902.

General rule is that there is no duty to control conduct of third persons in order to prevent criminal acts causing harm to another. General rule applies unless special relation exists between actor and third person which imposes duty on actor to control third person’s conduct, or special relation exists between actor and other which gives to other right of protection. Defendants in this case were sheriff and jailer. They improperly released third person from jail, who then murdered plaintiff’s decedent. For plaintiff to properly state special relationship in this case, it must be alleged that defendants knew or should have known that person placed in their charge is likely to cause harm to others if not controlled. Plaintiff failed to allege this. In addition, plaintiff failed to allege that some specific harm could be anticipated to identifiable individual or class of individuals.

1988 Fox v. Custis, 236 Va. 69, 372 S.E.2d 373.

Ordinarily person has no duty to control conduct of third persons. In this case, parole officer not liable in negligence for criminal acts of parolee. Parole officers do not take charge or exercise control over parolee within meaning of Restatement (Second) Torts § 315(a) or § 319. Therefore, no special relationship existed.

1988 Richmond Med. Supply v. Clifton, 235 Va. 584, 369 S.E.2d 407.

Landlord expressly promised to replace defective exterior door. Tenant claimed as damages property stolen by thieves who entered through defective door. Gulf Reston not bar to this contract claim.

1987 Wright v. Webb, 234 Va. 527, 362 S.E.2d 919.

Defendant owed motel and provided parking lot for motel and adjacent theater. Plaintiff parked in lot, entered motel to get directions to theater, then returned to auto and was assaulted. There was history of prior criminal acts at motel and vicinity. Business invitor whose method of business does not attract or provide climate for assaultive crimes does not have duty to take measures to protect invitee against criminal assault unless he knows that criminal assaults are occurring or are to occur on the premises which indicate imminent probability of harm to invitee.

1987 Klingbeil Mgt. Group v. Vito, 233 Va. 445, 357 S.E.2d 200.

There was ample evidence for jury to conclude that assailant gained access via previously locked front door. Traditionally, landlord owes duty to his tenants to exercise ordinary care and maintain areas over which he has control in reasonably safe condition, rather than duty to act as policeman. In other words, as general rule, landlord does not owe duty to protect his tenant from criminal acts by third persons. In Gulf Reston, we adopted Restatement view that person owes no duty to control conduct of third person in order to prevent physical harm to another unless special relationship exists giving rise to right of protection. Liability of landlord could not be founded on failure to comply with local deadbolt requirement because this local ordinance was in conflict with state law and state law imposed no duty on landlord in this instance.<

1982 Banks v. Sellers, 224 Va. 168, 294 S.E.2d 862.

Division superintendent of schools and principal are immune in negligence suit where student stabbed by another. Factors to be considered in deciding where lines of immunity will be drawn: (1) function of office; (2) use of judgment and discretion; and (3) degree of control by state.

1980 Montagna v. Holiday Inns, 221 Va. 336, 269 S.E.2d 838.

Plaintiff’s decedent killed by intruder in defendant’s motel. Defendant alleged claim had been settled. Supreme Court held settlement ineffective and remanded for trial on merits.

1974 Gulf Reston, Inc. v. Rogers, 215 Va. 155, 207 S.E.2d 841.

Landlord in exercise of reasonable care and prudence, was not on notice that there was reasonable probability of injury that occurred. In determining whether duty exists, likelihood of injury, magnitude of burden of guarding against it, and consequences of placing burden on defendant must be taken into account. Imposition of duty does not depend on foreseeability.

1949 Whitfield v. Cox, 189 Va. 219, 52 S.E.2d 72.

Plaintiff struck on face by whiskey bottle while attending wrestling bout staged by defendant; defendant had nine employees and thirteen police officers at bout to keep order. Defendant was not required to search his patrons for object that might be used to injure other patrons.