Terry v. Irish Fleet, Inc.

• Decision Date: 27 September 2018
• Docket Number: Record No. 170288
• Citation: 296 Va. 129,818 S.E.2d 788
• Parties: Agnes Christine TERRY, Administrator of the Estate of Peter Ambrister v. IRISH FLEET, INC., d/b/a Boulevard Cab, et al.
• Court: Virginia Supreme Court

296 Va. 129

818 S.E.2d 788

Agnes Christine TERRY, Administrator of the Estate of Peter Ambrister

v.IRISH FLEET, INC., d/b/a Boulevard Cab, et al.

Record No. 170288

Supreme Court of Virginia.

September 27, 2018

L. Steven Emmert, Virginia Beach (Brody H. Reid; Casey M. Ariail; Sykes, Bourdon, Ahern & Levy; Reid Goodwin, Richmond, on briefs), for appellant.

John A. Merrick (Stanley P. Wellman ; William J. G. Barnes, Glen Allen; George A. Somerville, Richmond; Harman Claytor Corrigan & Wellman, on briefs), for appellee Irish Fleet, Inc.

Brian N. Casey (Taylor Walker, Norfolk, on brief), for appellee Reginald Morris.

Amicus Curiae: Virginia Trial Lawyers Association (Norman A. Thomas, on brief), in support of the appellant.

PRESENT: All the Justices

OPINION BY JUSTICE ELIZABETH A. McCLANAHAN

Agnes Christine Terry, Administrator of the Estate of Peter Ambrister, appeals from the circuit court’s judgment dismissing her wrongful death action against Irish Fleet, Inc., d/b/a Boulevard Cab ("Irish Fleet") and Reginald Morris arising from the murder of her husband, a taxicab driver, by his passenger. Terry argues that the circuit court erred in ruling that her amended complaint failed to state a claim for which relief could be granted against Irish Fleet and Morris under a theory of assumed duty. Finding no reversible error in the circuit court’s ruling, we will affirm its judgment.

I.

Because this case was decided below on demurrer, we accept as true the well-pleaded facts set forth in the amended complaint and all inferences fairly drawn therefrom. Tharpe v. Saunders , 285 Va. 476, 478, 737 S.E.2d 890, 891 (2013). We are not bound, however, by the "conclusory allegations" set forth in the amended complaint. Brown v. Jacobs , 289 Va. 209, 212 n.2, 768 S.E.2d 421, 423 n.2 (2015) (citation omitted).

A.

At the time of Ambrister’s death, he was a taxicab driver employed by "Craig Buck and/or Cab King, Inc., and/or John Doe Corporation." Defendant Irish Fleet "owned and operated several cabs for hire in the City of Petersburg and provided dispatch services for other cabs in the City of Petersburg." Defendant Morris was employed by Irish Fleet "to administer dispatch services."

On October 17, between 8:34 and 10:04 p.m., Morris, in the scope of his employment with Irish Fleet, received a series of eight "troubling" telephone calls from a male caller. During one of these calls, the caller asked for a taxicab "from Jesse Lee Apartments, building 700, going to Halcom Manor." Morris "thought this call was a ‘red flag’ " because the caller "indicated [he was] calling from a payphone, but [Morris] knew that there was not a payphone at that location."

When the caller telephoned again, Morris "established a call back number" and "documented" it as "one that merited screening." After several calls, Morris dispatched a taxicab, but then cancelled it after "the caller called back and requested a change in pick-up location to a business that [Morris] knew to be closed, all of the business around it closed, and was in front of the apartment complex." Morris also "called another cab company to warn them about this caller."

On the morning of October 18, Ambrister reported to work "for Craig Buck and/or Cab King, Inc. and/or John Doe Corporation." At approximately 9:15 a.m., Tanya Tatum,² another dispatcher employed with Irish Fleet, received a phone call "from the Caller on the same phone as the night before requesting a cab from Jesse Lee Apartments, building 700, going to Halcom Manor." Tatum dispatched Ambrister to this caller, and sometime after Ambrister began the transport, he was fatally shot three times by his passenger.

B.

Terry filed an amended complaint against Irish Fleet and Morris, and other defendants, asserting that the defendants "were negligent and their negligence was the proximate cause of [Ambrister’s] death."

With regard to Irish Fleet and Morris, Terry asserts a theory of assumed duty. Specifically, Terry alleges that defendants

undertook, gratuitously or for consideration, to render services, including but not limited to[,] screening calls of potential cab fares callers, pick up locations, drop off locations[,] including the Caller as described in this complaint, and determining the safety risk of the call, caller, and/or location for the health and safety of cab drivers they dispatch, using ordinary car[e] in the screening and selection process of whom they accept fares from and when, or if, they dispatch a cab to the potential callers and location, and the warning of known dangerous or troubling callers or fares to Irish Fleet and all other employees and/or agents of Irish Fleet which Irish Fleet, Tatum, Morris, and/or John Doe should recognize as necessary for the protection of people and other cab drivers, including [Ambrister].

Terry alleges that Tatum "negligently dispatched [Ambrister] to a known dangerous fare that led to his death despite the documentation in the log book of the troubling calls" from the prior evening. Terry alleges, in the alternative, that Morris "negligent[ly] failed to warn and document the safety concern this caller with identifiable call back number posed to the cab drivers[’] health and safety, which increased the risk of harm to [Ambrister]." Terry contends that Irish Fleet is "vicariously liable for the acts and omissions of their employees ... including Tatum and Morris," and that all defendants knew or should have known of prior crimes committed against cab drivers in Petersburg earlier in the year that Ambrister was murdered and in the preceding 25-year period.

Irish Fleet and Morris filed demurrers to Terry’s amended complaint and asserted, among other grounds, that the amended complaint failed to allege sufficient facts to support a cause of action based on a theory that they assumed a duty to Ambrister. The circuit court sustained the demurrers and Terry nonsuited her claims against the remaining defendants.

II.

In reviewing the circuit court’s judgment sustaining the defendants’ demurrers, we note that "[t]he purpose of a demurrer is to determine whether a complaint states a cause of action upon which the requested relief may be granted." Murayama 1997 Trust v. NISC Holdings, LLC, 284 Va. 234, 245, 727 S.E.2d 80, 86 (2012) ; see Code § 8.01-273. A demurrer tests the legal sufficiency of the facts properly alleged, and the inferences fairly drawn therefrom, but does not admit the correctness of the complaint’s legal conclusions. Murayama 1997 Trust , 284 Va. at 245, 727 S.E.2d at 86.

A.

"To plead a cause of action for negligence, a plaintiff must allege a legal duty, a violation of that duty and resulting damage." Brown , 289 Va. at 215, 768 S.E.2d at 424 (citation omitted). Because Ambrister’s fatal injury was inflicted by his passenger, Irish Fleet and Morris are only subject to liability if they owed a duty to Ambrister to warn or protect him against the danger of criminal assault by his passenger.

As a general rule, there is no duty to warn or protect against acts of criminal assault by third parties. This is so because under "ordinary circumstances, acts of assaultive criminal behavior by third persons cannot reasonably be foreseen." A.H. v. Rockingham Publ’g Co. , 255 Va. 216, 222, 495 S.E.2d 482, 486 (1998). Indeed, "[i]n only rare circumstances has this Court determined that the duty to protect against harm from third party criminal acts exists." Commonwealth v. Peterson , 286 Va. 349, 359, 749 S.E.2d 307, 312 (2013).

We have previously held that "[b]efore any duty can arise with regard to the conduct of third persons, there must be a special relationship between the defendant and either the plaintiff or the third person." A.H. , 255 Va. at 220, 495 S.E.2d at 485. "Examples of such a relationship between a defendant and a plaintiff include common carrier-passenger, business proprietor-invitee, and innkeeper-guest." Id. "Another example of a special relationship is that of employer-employee with regard to the employer’s potential duty of protecting or warning an employee." Id. We have repeatedly stated that the finding of a special relationship is a "threshold requirement." Brown , 289 Va. at 215, 768 S.E.2d at 425 (quoting Peterson , 286 Va. at 357, 749 S.E.2d at 311 ); Taboada v. Daly Seven, Inc. , 271 Va. 313, 323, 626 S.E.2d 428, 433 (2006).³ With regard to the criminal act of murder specifically, we have noted that a defendant "cannot be deemed to have anticipated nor be expected to guard and protect [a plaintiff] against a crime so horrid, and happily so rare, as that of murder." Connell's Ex'rs v. Chesapeake & Ohio Ry. , 93 Va. 44, 58, 24 S.E. 467, 469 (1896).

In the absence of satisfying the "threshold requirement" of a special relationship, we have recognized that a defendant may owe a duty to protect against an act of criminal assault by a third party where the defendant voluntarily undertook such duty by expressly communicating his intention to do so. See Burns v. Gagnon , 283 Va. 657, 727 S.E.2d 634 (2012). This duty is based on the general common law principle that "one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." Id. at 672, 727 S.E.2d at 643 (citation omitted).⁴

In Burns , the plaintiff was a high school student who claimed that a friend of his told the assistant principal that plaintiff "was going to get into a fight with another student sometime that day." Id. at 664, 727 S.E.2d at 639. According to the plaintiff, the assistant principal "wrote down [plaintiff’s] name and told [plaintiff’s friend] that he would ‘alert [his] security and we’ll make sure this problem gets taken care of.’ " Id. We held that the assistant principal was subject to liability for breach of a voluntarily assumed duty based on his express promise to take care of the impending fight. Id. at 672-73, 727 S.E.2d at 644.⁵

On the other hand, we have rejected the contention that a defendant "voluntarily assumed" a legal duty...