Howarth v. Rockingham Pub. Co., Inc.

• Decision Date: 01 October 1998
• Docket Number: No. CIV. A. 96-0096-H.,CIV. A. 96-0096-H.
• Citation: 20 F.Supp.2d 959
• Parties: Sara K. HOWARTH, Plaintiff, v. ROCKINGHAM PUBLISHING COMPANY, INC. and K. Gary Anderson, Defendants.
• Court: U.S. District Court — Western District of Virginia

20 F.Supp.2d 959

Sara K. HOWARTH, Plaintiff, v. ROCKINGHAM PUBLISHING COMPANY, INC. and K. Gary Anderson, Defendants.

No. CIV. A. 96-0096-H.

United States District Court, W.D. Virginia, Harrisonburg Division.

October 1, 1998.

COPYRIGHT MATERIAL OMITTED

Thomas Eugene Albro, Ronald Lee Livingston, Tremblay & Smith, Charlottesville, VA, for plaintiff.

Kristen Ann Bennett, Joseph Peter Dyer, Jr., Siciliano, Ellis, Dyer & Baccrossse, Fairfax, VA, for defendants.

MEMORANDUM OPINION

MICHAEL, Senior District Judge.

Before the court is the defendants' May 12, 1997 Motion for Summary Judgment, as renewed orally at an April 20, 1998 hearing, in this negligence and fraud action.¹ For the reasons stated more fully below, the court will grant summary judgment in favor of the defendant K. Gary Anderson on all counts and in favor of the defendant Rockingham Publishing Company, Inc. on the Complaint's negligence count against it. The court, however, will deny the summary judgment motion as to the fraud counts alleged against the publishing company because genuine issues of material fact require resolution by a jury.²

I.

A. Procedural History and Issues

Plaintiff, Sara K. Howarth ("Howarth"), filed this action against defendants Rockingham Publishing Co., Inc. ("Rockingham") and K. Gary Anderson ("Anderson") on July 11, 1996. She alleges negligence by Rockingham (COUNT I), actual and constructive fraud by Rockingham (COUNTS II and III), and negligence by Anderson (COUNT IV) related to a sexual assault on Howarth by an unknown third party.

Howarth alleges that defendants failed to meet their duty to warn plaintiff of the danger of such an assault about which it knew or should have known. Plaintiff further alleges that defendants' knowing misrepresentations of potential safety risks posed to its young newspaper carriers amount to actual fraud and were relied upon by plaintiff's parents when they allowed plaintiff to take the job delivering newspapers. Stated simply, Howarth charges that Rockingham knew of the risk that she might be sexually assaulted by a third party and misrepresented the nature or existence of this known risk. Additionally and alternatively, Howarth alleges that defendants' misrepresentations or non-representations of the history of certain prior safety problems of Rockingham's carriers amounts to constructive fraud because defendants should have known of the likelihood that such risks might repeat themselves.

Rockingham and Anderson filed the instant motion for summary judgment arguing that plaintiff's action is barred by the Virginia Workers' Compensation Act; that defendants owe no duty to the plaintiff to warn or protect her from the criminal acts of third persons, or, alternatively, that if a duty to warn or protect exists, it extends only to that area over which an employer actually has control. As well, the defendants maintain that, as a matter of law, criminal acts of a third party are not foreseeable, that certain prior assaults against Rockingham's paper carriers do not constitute notice, that the fraud counts fail as a matter of law, and that Mr. Anderson cannot individually be held liable.

Howarth replies that she was an independent contractor whose claim is not barred by the Virginia Workers' Compensation Act; that defendants owed a legal duty to warn her of latently dangerous work-related conditions; that such duty was voluntarily assumed by defendant, that the "special relationship" between Rockingham and Howarth imposed on defendant the duty to warn of reasonably foreseeable criminal acts of third persons; that a heightened duty of care attached because of plaintiff's status as a minor at the time she was assaulted; and that several prior sexual assaults on Harrisonburg children, some of whom also were newspaper carriers of Rockingham's, had put defendants on adequate notice of the foreseeability of such an assault. As to Anderson, plaintiff's reply asserts that he may be held individually liable. Howarth additionally asserts that because she was hired by Rockingham in violation of Virginia's child labor laws, Rockingham was negligent per se, which negligence proximately caused her injuries.

B. Factual Background

Because this matter comes before the court on a motion for summary judgment, the court "draws all facts and inferences in favor of the non-moving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also, Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir.1979). Thus, the court will view the record in the light most favorable to Ms. Howarth.

In about April 1989, Howarth, then an eleven year-old girl, began delivering the Daily News-Record newspaper published by defendant Rockingham.³ The newspaper is a daily publication originating in Harrisonburg which covers the news and events of that locality and the surrounding Shenandoah Valley of Virginia. At the time, defendant Anderson was employed by Rockingham as the Circulation Manager of the Daily News-Record.

On July 8, 1989, Howarth was sexually assaulted while delivering newspapers on her regular paper route in Harrisonburg. The man who attacked Howarth dragged her behind bushes, hit her in the face, and committed sodomy against her. Howarth described the assailant as a black male, approximately twenty-four years old and about 5'10" in height. The plaintiff does not allege that her assailant had any connection to the defendant, Rockingham, or to its newspaper, the Daily News-Record. Rather, her attacker was an unknown third party who has never been prosecuted for Howarth's assault. In July 1993, however, police arrested a Daniel Lorenzo Jennings. Jennings confessed to others of the assaults mentioned below. Apparently, since the arrest there have been no similar sexual assaults in Harrisonburg of this type.

The plaintiff asserts that five assaults on children, two of whom were also Rockingham's paper carriers, occurred in Harrisonburg during the five years before her attack.⁴ On October 15, 1984, a thirteen year-old male paper carrier was sexually assaulted by a person described as a twenty-year-old black male. On March 3, 1985, a twelve-year-old paper boy was assaulted by a person matching the same description who the victim additionally described as appearing about six feet tall. On May 16, 1985, a ten-year-old boy, was sexually assaulted by a black male about six feet tall. On September 19, 1988, a thirteen-year-old boy was sexually assaulted by a black male who appeared to be in his mid-twenties and about 6'0" to 6'1" feet tall. On October 23, 1988, another thirteen-year-old boy was assaulted by a black male in his twenties who stood about 5'8" to 5'9" feet tall. None of the latter three victims was a newspaper carrier.

Howarth stresses that commonalities exist among the above assaults, to wit, the ages of the victims, the types of assaults, modes of attack (i.e., attacker emerged from behind bushes or from shadows), and the physical descriptions of the attacker or attackers. Defendants counter that the attacks were dissimilar principally because the other attacks were against boys rather than girls.⁵ As well, defendants stress that the most similar of the prior assaults, those against young paper carriers, each occurred more than four years before the Howarth assault.

II.

A. Summary Judgment Standard

Summary judgment should be granted if no genuine dispute of material fact exists and the moving parties (here, Rockingham and Anderson) are entitled to judgment as a matter of law. See Anderson, 477 U.S. at 250, 106 S.Ct. 2505. In considering the instant motion, the court must view the evidence and affidavits of the parties in light of the pleadings, drawing all facts and inferences in favor of Howarth. See id. at 248, 106 S.Ct. 2505; Charbonnages de France, supra, 597 F.2d at 414. A party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact...." Fed.R.Civ.P. 56(c).

The non-moving party is entitled to have the credibility of all its evidence presumed. See Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991). Before the non-moving party must face the burden of demonstrating the existence of a triable issue of fact, the movant must meet its burden of showing the absence of evidence to support the non-movant's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390, 393-394 (4th Cir.1994).

There must be more than a scintilla of evidence to support the non-movant's case. See Anderson, supra, 477 U.S. at 248, 106 S.Ct. 2505. Rather, the evidence must be sufficient to "return a verdict" at trial for the party opposing the entry of judgment. Id.

B. Virginia Workers' Compensation Act

Defendants contend that the Virginia Workers' Compensation Act, Virginia Code § 65.2-100 et seq. (Michie 1995 & Supp. 1996), provides the exclusive remedy for Howarth in the recovery of damages for her injuries. Defendants assert that Howarth was an "employee" subject to the Act, rather than an "independent contractor" outside the Act's coverage. Va.Code § 65.2-307. Defendants argue that the fundamental purpose of the Act is to grant employees compensation for their on-the-job injuries while shielding employers from tort liability. See Counts v. Stone Container Corp., 239 Va. 152, 387 S.E.2d 481 (Va.1990).

While an "employee" under the Act certainly can be a minor, Va.Code § 65.2-101, such an employee acquires that status only if the employer exercises the requisite control over him under a traditional common law analysis of the master / servant relationship. See Richmond Newspapers, Inc. v. Gill, 224 Va. 92, 294 S.E.2d 840 (Va.1982). The...