PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Powell,
JJ., and Russell and Lacy, S.JJ.
COMMONWEALTH OF VIRGINIA
JUSTICE CLEO E. POWELL
October 31, 2013
Record No. 121717
GRAFTON WILLIAM PETERSON,
ADMINISTRATOR OF THE ESTATE OF
ERIN NICOLE PETERSON, DECEASED, ET AL.,
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
William N. Alexander, II, Judge Designate
This appeal arises out of wrongful death suits filed
against the Commonwealth by the administrators (hereinafter
“Administrators”) of the estates of Erin Nicole Peterson and
Julia Kathleen Pryde, two murder victims of the tragic 2007 mass
shooting at Virginia Polytechnic Institute and State University
(hereinafter “Virginia Tech”). 1
In this case, we hold 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.
will reverse the judgment of the circuit court.
I. FACTS AND PROCEEDINGS
In a separate appeal this day decided, Record No. 121720,
the Administrators appeal the trial court’s decision to grant a
plea of res judicata and motion to dismiss filed by Charles W.
Steger, the President of Virginia Tech. The trial court denied
the Commonwealth’s same motion and Peterson and Pryde’s wrongful
death suits were consolidated and proceeded to a jury trial
against the Commonwealth only.
On the morning of April 16, 2007, at approximately 7:30
a.m., the Virginia Tech Police Department received a call that
an incident had occurred in the West Ambler Johnston Hall
dormitory but the specifics of what had happened were unknown.
When officers arrived they found two gunshot victims: a female
and a male clad in only his boxer shorts.
from the Virginia Tech Police Department were the first on the
scene, the Blacksburg Police Department led the investigation.
At least one member of the Virginia State Police also joined the
During the investigation, police came to believe that they
were investigating a domestic homicide because there were no
signs of forced entry or a robbery.
They believed that a
“targeted shooting” had occurred because the shooting was in a
“less conspicuous area . . . kind of hidden in the back” 2 making
it “easier for the suspect to get in and get out without being
Police believed that this was an isolated incident
that posed no danger to others and that the shooter had fled the
They did not believe that a campus lockdown was
At the crime scene, police observed a bloody footprint and
were determined to locate the source of the print.
The officers described the area as being one that you
would not even know was there if you did not live there.
learned that the female’s boyfriend was a gun enthusiast.
Once the female’s boyfriend was identified as a person of
interest, a “Be On The Lookout” (“BOLO”) went out for him.
police located the boyfriend at approximately 9:45 a.m.
Officers described him as appearing “[s]hocked” and “[s]cared.”
The boyfriend told the police that he was en route to Virginia
Tech from Radford University where he attended school because,
while he was in his 9 a.m. class, he heard from a friend who
attended Virginia Tech who told him what had happened.
explained that he had dropped his girlfriend off that morning
around 7 a.m. and then headed to Radford University for his 8
The boyfriend consented to a search of his vehicle
He also allowed the police to conduct a gunshot
As police spoke with the boyfriend, they received
word that there were “active shots” in Norris Hall.
quickly took the boyfriend’s contact information, told him that
they would be in touch, and left for the Virginia Tech campus.
Police subsequently executed a search warrant of the home
of the boyfriend of the female victim found in West Ambler
They found nothing.
Charles W. Steger, the President of Virginia Tech,
testified that he learned of “a shooting” at approximately 8
a.m. and he called a meeting of a group of administrators tasked
with campus safety, called the University Policy Group
(hereinafter “Policy Group”), to assess the situation and handle
the release of information pertaining thereto.
Shortly after 8
a.m., President Steger spoke with Wendell Flinchum, the Chief of
the Virginia Tech Police Department, and learned that a female
and a male student had been shot, at least one of whom was dead,
that the shootings appeared targeted, likely domestic in nature,
and that the shooter had likely left the campus.
The Policy Group convened around 8:30 a.m.
meeting, Steger learned that the police were on the lookout for
the female victim’s boyfriend as a person of interest.
the group’s members, Ralph Byers, the Executive Director for
Government Relations, notified the Governor’s Office at
approximately 8:45 a.m. of what had happened in West Ambler
Johnston Hall but indicated that the information was not
releasable because Virginia Tech was working on a press release.
The email to the Governor’s office stated “Not releaseable yet.
One student dead, one wounded.
police are involved.
Gunman on loose. . . .
No details available yet.”
that he used the phrase “[g]unman on the loose” as shorthand for
the “perpetrator has not been apprehended.”
wanted to notify the next of kin before releasing the
information to the public.
Steger instructed a Policy Group
member to compose a campus notice, and following revisions and a
technical difficulty with the computer system, it was sent out
by campus-wide “blast e-mail” at 9:26 a.m.
The notice stated
that “[a] shooting incident occurred at West Ambler Johnston
[Hall] earlier this morning.
Police are on the scene and
investigating” and advised students to be alert for anything
At 9:28 a.m. the Policy Group also sent a message
to the Board of Visitors stating “[t]wo students were shot this
morning, one fatally.
We will be back in touch with more
information as soon as it is known.
Please do NOT release the
information about the fatality.”
At approximately 9:45 a.m. the mass shooting at Norris Hall
At 9:50 a.m. a second campus-wide “blast e-mail” was
sent stating that “[a] gunman is loose on campus.
buildings until further notice.
Stay away from all windows.”
Erin Peterson, 18, and Julia Pryde, 23, were among the victims
murdered in Norris Hall.
Police later identified Seung-Hui Cho
as the shooter.
After the Norris Hall shooting, police realized that the
patterns on shoes worn by Cho did not match the prints found in
West Ambler Johnston Hall.
The day after the shootings, police
learned that the gun used to murder the two people in West
Ambler Johnston Hall matched the one Cho used in Norris Hall.
Police later found bloody clothing belonging to Cho that had the
DNA from one of the victims of the West Ambler Johnston Hall
shooting on it.
The Administrators filed wrongful death claims in
Montgomery County Circuit Court against Cho’s estate, the
Commonwealth and eighteen other individuals, including Steger.
The cases were consolidated, but following certain non-suits and
pretrial orders (see companion appeal Peterson v. Commonwealth,
Record No. 121720) the Commonwealth was the sole defendant at
The Administrators claimed that the Commonwealth was
liable for the actions of the Commonwealth’s employees at the
university pursuant to the Virginia Tort Claims Act (“VTCA”),
Code § 8.01-195.1, et seq.
They alleged that a special
relationship existed between the Commonwealth’s employees at
Virginia Tech and Peterson and Pryde that gave rise to the
Commonwealth’s duty to warn Peterson and Pryde of third party
criminal acts and that the Commonwealth’s failure to warn them
was the proximate cause of their deaths and the Administrators’
The Commonwealth argued that there was no foreseeable
harm to the students and that the evidence failed to establish
that any alleged breach of a duty of care was the proximate
cause of the deaths.
The Commonwealth objected to several jury instructions,
including Instruction 3 which provided, in summary, that
Peterson and Pryde were business invitees of Virginia Tech and
enjoyed a special relationship with the university.
instruction further stated that this status imposed a duty on
the university employees to maintain a safe campus.
this instruction, the jury was told that if they found that the
university employees should have reasonably foreseen that injury
arising from the criminal conduct of a third party might occur
but failed to warn students, the Commonwealth should be found
The instruction also stated that the jury should
find in favor of the Administrators if that failure to warn was
the proximate cause of the alleged injuries.
The jury returned
a verdict in favor of the Administrators awarding $4 million to
Upon the Commonwealth’s motion, the court reduced each
verdict to $100,000 in accordance with the VTCA, Code § 8.01195.3.
The Commonwealth moved to set aside the jury verdict
arguing it was contrary to well-established Virginia law that a
special relationship does not exist under the circumstances
here, citing Burns v. Gagnon, 283 Va. 657, 668, 727 S.E.2d 634,
641 (2012), which was decided post-trial.
again argued that the verdict should be set aside because the
evidence was insufficient as a matter of law to give rise to a
duty to protect from third party criminal acts.
the Commonwealth argued that the trial court should order a new
trial due to erroneous jury instructions.
denied these motions.
This appeal follows.
The trial court
On appeal, the Commonwealth argues that
1. The circuit court erred in finding that
the Commonwealth, Virginia Tech, and/or
their employees had a special relationship
with Peterson and Pryde that imposed a duty,
and therefore, erred in instructing the jury
that there was such a duty, in submitting
the case to the jury and in entering
judgment on the jury’s verdict.
2. Even assuming that the Commonwealth,
Virginia Tech or their employees had a
relevant special relationship under Virginia
law, the evidence adduced did not give rise
to a duty to warn of third party criminal
acts, and therefore, the circuit court erred
in submitting the case to the jury and in
entering judgment on the jury’s verdict.
3. The circuit court erred in finding that
there was sufficient evidence regarding
causation to raise a jury issue, and
therefore, erred in submitting the case to
the jury and in entering judgment on the
4. Even if there were a theory that might
have allowed plaintiffs to recover, the
circuit court’s instructions (2, 3, 4, 10 &
11) misstated Virginia law regarding the
existence of a relevant special
relationship, the existence and type of duty
purportedly owed, the standard that triggers
a duty to warn of third party criminal acts,
as well as regarding the reasonable
expectation of parents and students at a
university, and therefore, the jury’s
verdict must be overturned.
We hold that the facts in this case do not give rise to a duty
for the Commonwealth to warn students of the potential for third
party criminal acts.
Therefore, we do not reach the
Commonwealth’s causation or jury instruction arguments.
As a general rule, a person does not have a duty to warn or
protect another from the criminal acts of a third person.
Thompson v. Skate America, Inc., 261 Va. 121, 128-29, 540 S.E.2d
123, 127 (2001).
“This is particularly so when the third person
commits acts of assaultive criminal behavior because such acts
cannot reasonably be foreseen.”
Burdette v. Marks, 244 Va. 309,
311-12, 421 S.E.2d 419, 420 (1992).
does not apply in all situations.
However, the general rule
“‘There are narrow exceptions
to this rule,’ but the application of those exceptions ‘is
always fact specific and, thus, not amenable to a bright-line
rule for resolution.’”
Taboada v. Daly Seven, Inc., 271 Va.
313, 322-23, 626 S.E.2d 428, 432 (2006) (alteration omitted)
(quoting Yuzefovsky v. St. John’s Wood Apartments, 261 Va. 97,
106, 540 S.E.2d 134, 139 (2001)), aff’d on reh’g, 273 Va. 269,
270, 641 S.E.2d 68, 68 (2007).
Before an exception comes into
play, the facts must establish the existence of a special
“‘[W]hether a legal duty in tort exists is a pure question
Gagnon, 283 Va. at 668, 727
of law’” to be reviewed de novo.
S.E.2d at 642 (quoting Kellermann v. McDonough, 278 Va. 478,
487, 684 S.E.2d 786, 790 (2009).
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.
Yuzefovsky, 261 Va. at 107, 540 S.E.2d at 139 (citation and
For the purposes of this opinion, we will
assume without deciding that the threshold requirement that such
a special relationship exists is satisfied on these facts.
Having assumed without deciding that a special relationship
exists, the question becomes whether, as a matter of law, under
the facts and circumstances of this case, the Commonwealth had a
duty to warn students about the potential for third party
“The law determines the duty, and the jury, upon
the evidence, determines whether the duty has been performed.”
Acme Markets, Inc. v. Remschel, 181 Va. 171, 178, 24 S.E.2d 430,
A review of our prior cases indicates that in order for a
duty to be imposed upon a defendant, the degree of the
foreseeability of harm that the plaintiff must establish depends
on the nature of the special relationship.
We have recognized
two levels of foreseeable harm: known or reasonably foreseeable
harm, Taboada, 271 Va. at 325-26, 626 S.E.2d at 434, and
“imminent probability of harm,” the heightened degree of
foreseeability that arises where the defendant “knows that
criminal assaults against persons are occurring, or are about to
occur, on the premises,” based upon “notice of a specific danger
just prior to the assault.”
Thompson, 261 Va. at 128-29, 540
S.E.2d at 127 (citing Wright v. Webb, 234 Va. 527, 533, 362
S.E.2d 919, 922 (1987)).
Certain special relationships such as
that of a common carrier/passenger, innkeeper/guest, and
employer/employee impose a duty to warn when the danger of third
party criminal acts is known or reasonably foreseeable.
Taboada, 271 Va. at 325-26, 626 S.E.2d at 434 (innkeeper/guest);
A.H. v. Rockingham Publishing Co., Inc., 255 Va. 216, 221, 495
S.E.2d 482, 486 (1998)(employer/employee); Connell v. Chesapeake
& Ohio Ry. Co., 93 Va. 44, 62, 24 S.E. 467, 470 (1896)(common
In instances, however, where the special relationship was
that of business owner/invitee or landlord/tenant, we have
imposed a duty to warn of third party criminal acts only where
there was “an imminent probability of injury” from a third party
Yuzefovsky, 261 Va. at 109, 540 S.E.2d at 141. 3
In this case, the circuit court instructed the jury that
there was a business owner/invitee relationship between the
Commonwealth and the students and that there was a duty to warn
if the danger was reasonably foreseeable. This was 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, because we conclude that, under the facts of this
case, no duty was established under the more lenient standard of
foreseeability, this distinction is not dispositive in the
resolution of this appeal.
Thus, the duty to warn of danger from third party criminal acts
has remained an exception to the general rule.
Va. at 312-13, 421 S.E.2d at 421.
Where the standard was that the duty to warn or protect was
present when there was “an imminent probability of injury” from
a third party criminal act, this Court has held that the duty to
warn existed, as a matter of law, in the unusual situation where
an on-duty police officer failed to intervene when he responded
to the scene of a motor vehicle accident and observed one driver
attack a bystander who had stopped to render assistance. Id. at
310-11, 421 S.E.2d at 419-20.
More frequently, however, this
Court has concluded that facts relied upon in particular cases
fail to establish a duty, as a matter of law, to protect against
third party criminal acts.
See, e.g., Dudas v. Glenwood Golf
Club, Inc., 261 Va. 133, 140, 540 S.E.2d 129, 133 (2001)
(holding that two robberies within the month preceding the
attack on plaintiff was not a “level of criminal activity” that
would “have led a reasonable business owner to conclude that its
invitees were in imminent danger of criminal assault”);
Yuzefovsky, 261 Va. at 109, 540 S.E.2d at 141 (concluding as a
matter of law that employee misrepresentations about the safety
of an apartment complex, where in one year 656 crimes, including
113 against persons, had been reported, failed to give rise to
the duty to warn or protect from harm because these facts failed
to establish “an imminent probability of injury to [the
plaintiff] from a” criminal act of a third party); Burns v.
Johnson, 250 Va. 41, 42-45, 458 S.E.2d 448, 449-52 (1995) (trial
court erred as a matter of law in failing to hold that the
fifteen minutes between an individual making sexual advances to
a store clerk and abducting and raping a store patron did not
give rise to the duty to protect against third party criminal
In cases where it was alleged that a special relationship
gave rise to the duty to warn because the danger of harm from
third party criminal acts was known or reasonably foreseeable,
this Court has similarly, frequently concluded that the duty to
warn was not present as a matter of law.
See A.H., 255 Va. at
221-22, 495 S.E.2d at 486 (stating that an employer has no duty
to protect an employee from third party criminal acts unless the
danger is “known or reasonably foreseeable” as a matter of law
and concluding that knowledge of similar assaults in the
preceding five years was not sufficient); Connell, 93 Va. at 58,
24 S.E. at 469 (common carrier “cannot be deemed to have
anticipated nor be expected to guard and protect [a passenger]
against a crime so horrid, and happily so rare, as that of
In only rare circumstances has this Court determined that
the duty to protect against harm from third party criminal acts
See Taboada, 271 Va. at 325-26, 626 S.E.2d at 434
(concluding that, like a common carrier, an innkeeper has a
“duty of utmost care and diligence” to protect guests from third
party criminal acts where the danger is known or reasonably
foreseeable, and holding that where -- over a three year period
immediately prior to the attack -- hotel employees had called
police 96 times to report criminal conduct including robberies,
malicious woundings, shootings, and other criminally assaultive
acts, the hotel knew of the danger and had received a warning
from police that “guests were at a specific imminent risk of
harm,” these were sufficient averments to survive a demurrer
and, if proven, to establish the duty as a matter of law).
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.
Commonwealth also knew that the shooter had not been
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.
This is markedly different from the situation presented in
Taboada, 271 Va. at 325-26, 626 S.E.2d at 434, where police had
specifically warned the innkeepers that guests were at risk
prior to the time that the plaintiff in that case was shot by a
Based on the limited information available to the
Commonwealth prior to the shootings in Norris Hall, it cannot be
said that it was known or reasonably foreseeable that students
in Norris Hall would fall victim to criminal harm.
Thus, as a
matter of law, the Commonwealth did not have a duty to protect
students against third party criminal acts.
Assuming without deciding that a special relationship
existed between the Commonwealth and Virginia Tech students,
based on the specific facts of this case, as a matter of law, no
duty to warn students of harm by a third party criminal arose.
Thus, we will reverse the trial court’s judgment holding that a
duty arose and enter final judgment in favor of the
Reversed and final judgment.