Commonwealth v. Peterson

• Citation: 749 S.E.2d 307,286 Va. 349
• Decision Date: 31 October 2013
• Docket Number: Record No. 121717.
• Court: Supreme Court of Virginia
• Parties: COMMONWEALTH of Virginia v. Grafton William PETERSON, Administrator of the Estate of Erin Nicole Peterson, Deceased, et al.

286 Va. 349

749 S.E.2d 307

COMMONWEALTH of Virginia

v.Grafton William PETERSON, Administrator of the Estate of Erin Nicole Peterson, Deceased, et al.

Record No. 121717.

Supreme Court of Virginia.

Oct. 31, 2013.

Wesley G. Russell, Jr., Deputy Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Patricia L. West, Chief Deputy Attorney General; Peter R. Messitt, Senior Assistant Attorney General; Mike F. Melis, Assistant Attorney General; E. Duncan Getchell, Jr., Solicitor General; William G. Broaddus; Jeremy S. Byrum; McGuireWoods, on briefs), for appellant.

Robert T. Hall (L. Steven Emmert, Virginia Beach; Sykes, Bourdon, Ahern & Levy; Hall and Sethi, on briefs), for appellees.

Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, and POWELL, JJ., and RUSSELL and LACY, S.JJ.

OPINION BY Justice CLEO E. POWELL.

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. Therefore, we will reverse the judgment of the circuit court.

I. FACTS AND PROCEEDINGS

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. Although officers 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 investigation.

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 noticed.” Police believed that this was an isolated incident that posed no danger to others and that the shooter had fled the area. They did not believe that a campus lockdown was necessary.

At the crime scene, police observed a bloody footprint and were determined to locate the source of the print. Police also 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. The 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. He explained that he had dropped his girlfriend off that morning around 7 a.m. and then headed to Radford University for his 8 a.m. class. The boyfriend consented to a search of his vehicle and shoes. He also allowed the police to conduct a gunshot residue test. As police spoke with the boyfriend, they received word that there were “active shots” in Norris Hall. Officers 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 Johnston Hall. 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. During this meeting, Steger learned that the police were on the lookout for the female victim's boyfriend as a person of interest. One of 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. Gunman on loose.... State police are involved. No details available yet.” Byers claimed that he used the phrase “[g]unman on the loose” as shorthand for the “perpetrator has not been apprehended.” Virginia Tech 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 suspicious. 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 began. At 9:50 a.m. a second campus-wide “blast e-mail” was sent stating that “[a] gunman is loose on campus. Stay in 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 trial. 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' losses. 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. The instruction further stated that this status imposed a duty on the university employees to maintain a safe campus. Based on 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 negligent. 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 each family.

Upon the Commonwealth's motion, the court reduced each verdict to $100,000 in accordance with the VTCA, Code § 8.01–195.3. 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. The Commonwealth 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. Alternatively, the Commonwealth argued that the trial court should order a new trial due to erroneous jury instructions. The trial court denied these motions. This appeal follows.

II. ANALYSIS

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...