A.H. v. Rockingham Pub. Co., Inc.

• Decision Date: 09 January 1998
• Docket Number: No. 961984,961984
• Citation: 495 S.E.2d 482,255 Va. 216
• Court: Virginia Supreme Court
• Parties: , 26 Media L. Rep. 1475 A.H. v. ROCKINGHAM PUBLISHING COMPANY, INC., et al. Record

Page 482

495 S.E.2d 482

255 Va. 216, 26 Media L. Rep. 1475

A.H. v. ROCKINGHAM PUBLISHING COMPANY, INC., et al.

Record No. 961984.

Supreme Court of Virginia.

Jan. 9, 1998.

Thomas E. Albro (R. Lee Livingston; Tremblay & Smith, on briefs), Charlottesville, for appellant.

Joseph P. Dyer (Siciliano, Ellis, Dyer & Boccarosse, on brief), Fairfax, for appellees.

Present: CARRICO, C.J., COMPTON, LACY, HASSELL, KEENAN, and KINSER, JJ., and WHITING, Senior Justice.

WHITING, Senior Justice:

In this appeal, the primary issue is whether a newspaper publishing company had a duty to warn a 13 or 14-year-old independent contractor of the danger of a criminal assault by a third party while delivering newspapers in early morning hours. ¹ Because the trial court sustained the company's motion to strike the evidence, we state the facts in the light most favorable to the plaintiff. See Tarmac Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 163, 458 S.E.2d 462, 464 (1995).

In May 1988, 13-year-old A.H. ² and his parents agreed with Rockingham Publishing Company, Inc., a newspaper publishing company, that A.H. would deliver its newspapers in the City of Harrisonburg. Due to A.H.'s age, under Virginia's child labor law Rockingham could only permit A.H. and its other carriers of the same age to distribute its "newspapers on regularly established routes between the hours of four o'clock ante meridian and seven o'clock post meridian, excluding the time public schools are actually in session." Code § 40.1-109. Eighteen months after A.H. started working for Rockingham, while delivering newspapers on his regular route between six and six-thirty a.m. on November 7, 1989, A.H. was sexually assaulted by a then-unidentified young man.

There had been three previous pre-dawn assaults of a sexual nature upon other young Rockingham carriers while they were delivering their newspapers. None of the three prior assaults was shown to have occurred on or near A.H.'s route.

Rockingham knew about all three attacks before the assault on A.H. The first assault was about five years, the second about four-and-a-half years, and the third about four months before the assault upon A.H. All three victims gave similar descriptions of the young man who assaulted them. The unknown assailant had not been arrested prior to A.H.'s assault.

After he became an adult, A.H. filed this action against the company and its circulation manager, K. Gary Anderson (collectively Rockingham). ³ A.H. alleged that the newspaper company and Anderson violated a legal duty of care owed him in failing to advise him or his parents of the previous attacks or to warn them of the danger of being attacked. Following presentation of all parties' evidence before a jury, the trial court sustained Rockingham's motions to strike the evidence. The plaintiff appeals.

We must first decide whether there was a duty of care upon Rockingham in this negligence case. See Burns v. Johnson, 250 Va. 41, 44, 458 S.E.2d 448, 450 (1995). Whether such duty exists is "a pure question of law." Id. at 45, 458 S.E.2d at 451; Acme Markets, Inc. v. Remschel, 181 Va. 171, 178, 24 S.E.2d 430, 434 (1943) ("[t]he law determines the duty, and the jury, upon the evidence, determines whether the duty has been performed").

Familiar principles control our determination of whether Rockingham had a duty of care in this case. Before 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. Burdette v. Marks, 244 Va. 309, 312, 421 S.E.2d 419, 420 (1992). Examples of such a relationship between a defendant and a plaintiff include common carrier-passenger, business proprietor-invitee, and innkeeper-guest. Klingbeil Management Group Co. v. Vito, 233 Va. 445, 448, 357 S.E.2d 200, 201 (1987). And these examples are not exclusive. Gulf Reston, Inc. v. Rogers, 215 Va. 155, 157, 207 S.E.2d 841, 844 (1974). 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. Restatement (Second) of Torts § 302B cmt. e (B) (1965).

Under the circumstances of this case, we conclude that Rockingham owed the same degree of care to A.H. that it would have owed if A.H. had been employed by Rockingham. See Peele v. Bright, 119 Va. 182, 184, 89 S.E. 238, 239 (1916) (instruction that degree of care owed to independent contractor less than that owed toward employees erroneous and properly refused). And, given the fact that Rockingham assigned a fixed route and time for A.H. to distribute its newspapers, we conclude that the necessary special relationship existed between Rockingham and A.H. with regard to the conduct of third persons.

Even though the necessary special relationship is established with regard to a defendant's potential duty to protect or warn a plaintiff against the criminal conduct of a third party, that duty, as in other negligence cases, is not without limitations. A court must still determine whether the danger of a plaintiff's injury from such conduct was known to the defendant or was reasonably foreseeable. "[W]here the duty does exist [arising from a requisite relationship], the obligation is not an absolute one to insure the plaintiff's safety[;] .... [t]here is ... no liability ... where the defendant neither knows nor has reason to foresee the danger or otherwise to know that precautions are called for." W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 56, at 385 (5th ed.1984); see also Burdette, 244 Va. at 312, 421 S.E.2d at 421 (since citizen being assaulted in police official's presence asked for aid, "[defendant] knew or should have known that [plaintiff] was in great danger of serious bodily injury"); Gulf Reston, 215 Va. at 159, 207 S.E.2d at 845 (insufficient evidence to show criminal violence upon tenant reasonably foreseeable by landlord); Trimyer v. Norfolk Tallow Co., 192 Va. 776, 785-86, 66 S.E.2d 441, 446 (1951) (insufficient evidence to show power company should have anticipated danger from uninsulated electric lines); Lynchburg Cotton Mills v. Stanley, 102 Va. 590, 594, 46 S.E. 908, 909 (1904) (employer liable for failing to warn boy not quite 12 years old of known dangers of revolving wheels, belts, and pulleys in place of employment); Linda A. Sharp, Annotation, Employer's Liability to Employee or Agent for Injury or Death Resulting from Assault or Criminal Attack by Third Person, 40 A.L.R.5th 1, 14 (1996) ("that a 'special relationship' may exist is not dispositive of the duty question because the court must also find that the 'harm is foreseeable' "). ⁴

We will apply the foregoing principles in this case. Despite the special relationship, and even though the plaintiff's age may have imposed a greater degree of care upon Rockingham than it would have owed an adult in the plaintiff's circumstances, Rockingham had no duty to warn or protect him against harm unless the danger of an assault on the plaintiff was known or reasonably foreseeable to Rockingham. Since Rockingham did not know that the plaintiff was in danger of being assaulted on that particular paper route, we consider whether the evidence is sufficient to raise a jury question whether an assault on him was reasonably foreseeable.

In ordinary circumstances, acts of assaultive criminal behavior by third persons cannot reasonably be foreseen. Burdette, 244 Va. at 311-12, 421 S.E.2d at 420; Marshall v. Winston, 239 Va. 315, 318, 389 S.E.2d 902, 904 (1990); Wright v. Webb, 234 Va. 527, 531, 362 S.E.2d 919, 921 (1987); Gulf Reston, 215 Va. at 158-59, 207 S.E.2d at 844-45; Connell's Ex'rs v. Chesapeake & Ohio Ry. Co., 93 Va. 44, 57-58, 24 S.E. 467, 469 (1896). Accordingly, Rockingham's alleged duty to warn the plaintiff of the dangers of such an assault would not arise unless the then-known background of the three prior assaults was sufficient to create a reasonable foreseeability of the danger that similar criminal acts would be committed upon A.H. See Gulf Reston, 215 Va. at 159, 207 S.E.2d at 845; Keeton, supra, § 56, at 385. Recognizing his obligation to demonstrate the reasonable foreseeability of this danger, the plaintiff claims that the facts established at trial imposed a duty of care upon Rockingham to warn him of the danger of such an assault. Rockingham responds that the trial court correctly concluded that no such duty arose under the circumstances in this case.

In our opinion, the three prior sexual assaults on Rockingham carriers in various locations in the City of Harrisonburg in the five years preceding the assault on the plaintiff were insufficient to raise a jury issue of whether a sexual attack on the plaintiff was reasonably foreseeable. This is not a case in which it was shown that the prior assaults were at or near the location of the plaintiff's assault, or that they occurred frequently or sufficiently close in time to make it reasonably foreseeable that the plaintiff would be similarly assaulted. ⁵ Hence, we hold that the trial court correctly concluded that Rockingham had no duty to warn the plaintiff or his parents of the danger of an attack upon the plaintiff.

Nevertheless, plaintiff claims that his age and relationship to Rockingham created an additional duty of disclosure to satisfy a requirement that A.H. and his parents give an "informed consent" to the alleged risk involved in the performance of plaintiff's duties. We do not reach the merits of this claim, however, because the plaintiff has not met his threshold obligation of introducing evidence sufficient to create a jury issue on the question of whether the assault on him was reasonably foreseeable.

Plaintiff also asserts that Rockingham's "method of doing business created an environment conducive to assault," basing this conclusion on the three prior assaults on Rockingham's carriers. Since those assaults were insufficient to...