In a Case Arising from the Mass Shooting at Virginia Tech, the Virginia Supreme Court Reaffirmed the High Hurdle (and Foreseeability) to Hold a Property Owner Liable for Crimes of Third Parties.

Dawn E. Boyce, Esquire
Martin Schubert, Esquire
December 17th, 2013
By: Dawn E. Boyce, Esquire and Martin Schubert, Esquire

The facts of Commonwealth v. Peterson, 749 S.E.2d 307, 2013 Va. LEXIS 132 (2013), are readily recognizable. The Plaintiffs were the administrators of two decedents who died in the tragic Virginia Tech mass shooting in 2007. Pursuant to the Virginia Tort Claims Act, the administrators brought a wrongful death action against the Commonwealth of Virginia on the theory that the Commonwealth failed to warn about the potential for criminal acts by third parties.

The facts disclosed that the police had responded to the scene of two gunshot victims, believed, at the time, to be the result of a domestic dispute and an isolated incident. The university sent out a campus email advising of the shooting and that police were on scene investigating. About 20 minutes later, while police questioned one suspect, shots occurred elsewhere on the campus, which turned out to be the mass shooting in which the plaintiffs’ decedents died.

The jury returned a verdict of $4 million for each decedent, which was reduced to $100,000 under the statutory cap.

On appeal, the Supreme Court reversed, holding that even if there was a special relationship between the Commonwealth and the decedents, under the facts presented there was no duty to warn students of the potential for criminal acts by third parties.

The court cited cases from the last 20 years, reiterating the general proposition that a person/entity does not have a duty to warn another about criminal acts of third parties. Narrow exceptions exist based on special relationships between the parties. In the Virginia Tech case, the court assumed, without deciding, that a special relationship existed.

Despite the assumption of a special relationship, the court found that the harm did not meet the requisite level of foreseeability. The court distinguished between 1) “known or reasonably foreseeable harm” and 2) “imminent probability of harm.” 2013 Va. LEXIS 132 at *12. The standard of foreseeability changes depending on the type of relationship of the parties. Certain relationships, such as common carrier/passenger, innkeeper/guest, and employer/employee, give rise to a duty to warn about the criminal acts of third parties, if such danger is known or reasonably foreseeable. However, where the special relationship between the parties is that of business owner/invitee or landlord/tenant, the second heightened foreseeability standard applies; the defendant “knows that criminal assaults against persons are occurring, or are about to occur, based upon notice of a specific danger just prior to the assault”. Id. at *12 (citations omitted).

In applying precedent to the facts of the Virginia Tech case, the court concluded that the circuit court erred in finding that the Commonwealth was subject to the “known or reasonably foreseeable harm” test. However, even if that standard applied to the facts of the case, the court held that no duty existed on the part of the Commonwealth as a matter of law. Based upon the limited information available to it, the Commonwealth did not have a duty to warn or to protect students against third party criminal acts.


This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More