Burns v. Gagnon

• Citation: 727 S.E.2d 634,283 Va. 657,281 Ed. Law Rep. 729
• Decision Date: 20 April 2012
• Docket Number: Record Nos. 110754,110767.
• Parties: Travis BURNS v. Gregory Joseph GAGNON, et al.
• Court: Supreme Court of Virginia

283 Va. 657
727 S.E.2d 634
281 Ed. Law Rep. 729

Travis BURNS
v.
Gregory Joseph GAGNON, et al.

Record Nos. 110754, 110767.

Supreme Court of Virginia.

April 20, 2012.

[727 S.E.2d 638]

John A. Conrad (Abbigale B. Fredrick; Saemi Murphy; The Conrad Firm, on briefs), Richmond, for appellant (No. 110754).

Avery T. Waterman, Jr., Newport News (Patten, Wornom, Hatten & Diamonstein, on brief), for appellee Gregory Joseph Gagnon.

No brief filed on behalf of appellee James Newsome.

No brief filed on behalf of appellee Christine D. Newsome.

Avery T. Waterman, Jr., Newport News, James Newsome (Patten, Wornom, Hatten & Diamonstein, on brief), for appellant (No. 110767).

John A. Conrad (Abbigale B. Fredrick; The Conrad Firm, on briefs), Richmond, for appellee, Travis Burns.

No brief filed by appellee James Newsome.

No brief filed by appellee Christine D. Newsome.

Present: All the Justices.

Opinion by Justice LEROY F. MILLETTE, Jr.

[283 Va. 663]These companion appeals arise out of a personal-injury suit brought by a former Gloucester High School (GHS or school) student who was injured in a fight with another student on school grounds. On the morning of the fight, an assistant principal at the school received a report that the fight would occur sometime that day. He did not act on the report before the fight.

The injured student sued the other student involved in the fight, a third student who encouraged the fight, and the assistant principal, asserting claims for simple and gross negligence, assault, and battery. A jury returned a verdict against all three defendants and awarded the injured student a total of $5 million in damages, with a different amount awarded against each defendant. The circuit court entered judgment on the verdict but refused to hold the defendants jointly and severally liable.

[727 S.E.2d 639]

We granted the assistant principal's appeal ¹ and the injured student's cross-appeal to consider (1) whether the assistant principal owed the injured student a legal duty; (2) whether the assistant principal is entitled to the protection of sovereign immunity; (3) whether there was evidence to support the injured student's proffered jury instruction on gross negligence; (4) whether the deposition of an absent witness was admissible; and (5) whether intentional and negligent tortfeasors can be held jointly and severally liable. For the reasons that follow, we reverse in part and remand the case to the circuit court for a new trial.

[283 Va. 664]I. A.

At around 9:00 a.m. on December 14, 2006, Shannon H. Diaz, a student at GHS, met with Principal Layton H. Beverage and Vice Principal W.R. Travis Burns to discuss a disciplinary offense. When the meeting ended, Diaz informed Burns that, according to messages sent through the social-networking website MySpace, his friend and fellow student Gregory J. Gagnon was going to get into a fight with another student sometime that day. Burns wrote down Gagnon's name and told Diaz that he would “alert [his] security and we'll make sure this problem gets taken care of.” Burns did not, however, act on Diaz' report that morning.

Roughly two hours after Diaz and Burns met, Gagnon was approached by another student, James S. Newsome, Jr. (Newsome), in the school's cafeteria. The two exchanged words, and Newsome's sister and fellow student, Christine D. Newsome (Christine), who was standing behind Newsome, said, “either ... hit [Gagnon] or walk away.” Newsome then punched Gagnon once in the face, knocking his head back into a brick pillar.

B.

In 2009, Gagnon filed an amended complaint against Burns, Newsome, and Christine, asserting claims for simple and gross negligence, assault, and battery. With respect to Newsome and Christine, Gagnon alleged that Newsome assaulted and battered him, and that Christine aided and abetted the assault and battery. As for Burns, Gagnon alleged that he owed him various duties of care and that he breached those duties by, among other things, (1) failing to implement necessary policies and procedures to “rein[ ] [in] student-on-student fights” at the school; (2) taking no action in response to Diaz' report; and (3) failing to protect him from Newsome's conduct. Gagnon claimed that the defendants' intentional and negligent acts caused him to suffer permanent disability, including a “present and future brain injury.” He sought judgment against all three defendants, jointly and severally, in the amount of $9,000,000.²

Burns filed a demurrer and plea in bar, arguing that he owed no legal duty to Gagnon and that he was immune from Gagnon's simple [283 Va. 665]negligence claim under both Code § 8.01–220.1:2 and the common law. In addition, Burns contended that Gagnon's allegations were insufficient to support a claim against him for gross negligence.

C.

The circuit court held an evidentiary hearing on Burns' plea in bar. At that hearing, Burns testified that, in 2006, he was the assistant principal at GHS in charge of ninth-grade student discipline and that his duties included receiving reports of disciplinary offenses. When asked to recount the events of December 14, 2006, Burns said that he and Beverage met with Diaz that morning to discuss a disciplinary matter. Burns testified that, after the meeting, Diaz told him that, based on “some exchanges” happening on MySpace, there was a fight that “may occur between ... Gagnon[ ] and another boy.” According to Burns, Diaz did not give him the name of the other student or the date, time, or place of the fight. Burns further testified that “the only thing [he] did” in response to Diaz' report “was [he] took ... Gagnon's name down and ... told [Diaz] that [he] would look into the matter.”

[727 S.E.2d 640]

When asked why he did not act on Diaz' report, Burns said that he had other priorities to attend to that morning and that he did not consider the report to present an immediate concern. Yet Burns acknowledged that, had he “see[n the report] as pressing,” he could have located Gagnon that morning using the school's computer system, could have asked one of the school's security guards to remove Gagnon from class, and could have had Gagnon brought to his office.

Over Burns' objection, Gagnon introduced portions of Diaz' de bene esse deposition at the hearing, representing to the circuit court that Diaz was unable to appear because he was on active military duty. In the admitted portions, Diaz testified that he told Burns on December 14, 2006, that Gagnon was going to get into a fight with another student sometime that day, but that he did not say who the other student would be. According to Diaz, Burns told him that he would “alert security” and “make sure this problem [was] taken care of.” But Diaz said that Burns never asked him for the name of the other student or for the time or place of the fight.

Gagnon's mother and father both testified at the hearing that Burns spoke to them individually in the days following the fight and apologized for “dropp [ing] the ball.” And a deputy assigned to GHS [283 Va. 666]testified that soon after the fight, Burns admitted that “he believe[d] he screwed up.” During his testimony, Burns denied making these admissions.

The circuit court denied Burns' demurrer and plea in bar. On the threshold issue of legal duty, the circuit court held that Burns owed Gagnon “legal duties,” but it did not specify what those duties were. As to whether Burns was entitled to common-law sovereign immunity, the circuit court applied the four-factor test established in James v. Jane, 221 Va. 43, 53, 282 S.E.2d 864, 869 (1980), and explained in Messina v. Burden, 228 Va. 301, 312–13, 321 S.E.2d 657, 663–64 (1984), finding that the only factor that was contested by the parties was whether Burns' alleged wrongful act was discretionary or ministerial. Relying on B.M.H. v. School Bd. of City of Chesapeake, 833 F.Supp. 560, 571 (E.D.Va.1993), as persuasive authority, the circuit court concluded that Burns' omitted act of “notifying school security of the reported impending physical altercation or otherwise investigating the report of ... Diaz” was ministerial. The circuit court thus held that Burns was not entitled to common-law sovereign immunity. It also held that Burns was not entitled to statutory sovereign immunity because Code § 8.01–220.1:2—which provides, among other things, civil immunity to teachers under certain circumstances—did not apply to Gagnon's claims.

The circuit court further concluded that “Burns' acts or omissions did not constitute gross negligence, but did, for purposes of the plea in bar, make out a sufficient case of simple negligence to permit the issue to be determined by a jury.” Lastly, the circuit court denied Burns' post-hearing motion to strike Diaz' deposition, finding that the deposition was taken in another action with substantially similar parties and issues,³ that Diaz was an unavailable witness, and that Burns' counsel had participated in the deposition.

D.

The case proceeded to a nine-day jury trial in which Burns and Gagnon presented substantially the same evidence that they offered at the plea in bar hearing. In addition, Burns testified that he asked Diaz the name of the other student who would be involved in the fight with Gagnon, but that Diaz said that he did not know. According[283 Va. 667]to Burns, Diaz also said that he did not know the other student's grade or “what the conflict was about.” Burns further testified that he believed that Diaz had a “credibility issue” because he was slow to admit that he, and not some other students that he had initially implicated, had committed the disciplinary offense that was being investigated on the morning of the fight.

At the close of all evidence, the circuit court considered jury instructions and verdict forms. As relevant here, Gagnon proposed

[727 S.E.2d 641]

an instruction and special interrogatory on gross negligence. The circuit court refused both, citing its prior ruling at the plea in bar stage that Burns' acts or omissions...