Jane Doe v. Va. Wesleyan Coll. Va. Wesleyan Coll.
| Decision Date | 20 June 2015 |
| Docket Number | Civil Docket No.: CL14-6942-01,Civil Docket No.: CL14-6942-00 |
| Court | Circuit Court of Virginia |
| Parties | Re: Jane Doe v. Virginia Wesleyan College Virginia Wesleyan College v. Robert Roe |
Jonathan E. Halperin, Esq.
Andrew Lucchetti, Esq.
HALPERIN LAW CENTER, LLC
5225 Hickory Park Drive, Suite B
Glenn Allen, Virginia 23059
Stuart L. Plotnick, Esq.
LAW OFFICES OF STUART L. PLOTNICK
51 Monroe Street, Suite 701
Rockville, Maryland 20850
Mark C. Nanavati, Esq.
G. Christopher Jones, Jr., Esq.
SINNOTT, NUCKOLS & LOGAN, P.C.
13811 Village Mill Drive
Midlothian, Virginia 23114
George J. Dancingers, Esq.
Sally J. Moore, Esq.
Scott C. Hartin, Esq.
MCKENRY DANCINGERS DAWSON, P.C.
192 Ballard Court, Suite 400
Virginia Beach, Virginia 23462
Dear Counsel:
Today the Court rules on multiple motions related to this case. The five motions before the Court are: (1) a Demurrer filed by Defendant Virginia Wesleyan College ("VWC"); (2) a Demurrer filed by Defendant Robert Roe ("Roe"); (3) a Motion to Strike filed by Plaintiff Jane Doe; (4) a Motion for Bill of Particulars filed by VWC; and (5) a Special Plea in Bar filed by Roe. The Court DENIES IN PART and SUSTAINS IN PART VWC's Demurrer; DENIES IN PART and SUSTAINS IN PART Roe's Demurrer; DENIES IN PART and SUSTAINS IN PART Doe's Motion to Strike; DENIES VWC's Motion for Bill of Particulars; and DENIES Roe's Special Plea in Bar. The Court articulates the reasons for its rulings herein.
Doe had recently begun her freshman year as a student at VWC in August 2012. (Compl. 2). Doe alleges that on or about August 24, 2012, (id. ¶ 5), she was raped and sexually assaulted by Roe in a VWC dormitory, (id. ¶¶ 26-27), and that VWC is liable for the resultant damages, (see generally id.). Doe alleges that she attended an on-campus party (the "Party") "sponsored" by a VWC-employed orientation peer advisor, where she admits that she consumed alcohol offered to her. (Id. ¶¶ 12-13). The alcohol available at the Party allegedly "was spiked with an agent designed to incapacitate [Doe and others] and render them vulnerable to sexual assault." (Id. ¶ 17). VWC-employed security officers allegedly visited the Party at some point, observed "alcohol available for teenager consumption," and took no action. (Id. ¶ 15). Doe allegedly left the Party with some friends, who were impaired, to help them get to their dormitory rooms. (Id. ¶ 21). Doe alleges that Roe followed her and her friends after they left the Party and, once Doe's friends were back in their dormitory rooms, Roe assaulted Doe and "forced her back to his dorm room," where Doe alleges Roe raped and sexually assaulted her. (Id. ¶¶ 23-27). Doe prays for judgment against VWC based on three counts: negligence, gross negligence, and fraud. (See generally id.).
VWC filed a third-party complaint against Roe, which it later amended, seeking indemnity and contribution.
VWC and Roe subsequently filed the motions that are the subject of this Opinion. After an opportunity to provide supporting briefs, the parties were before the Court for a hearing on the motions on April 23, 2015.
The record in this case is voluminous. Although the pleadings at issue are part of the record, the Court elects to highlight specific, relevant portions of the pleadings herein.
VWC demurred to Doe's Complaint on ten grounds. VWC alleges that: (1) under Virginia Law, VWC did not have a duty to warn or protect Doe; (2) Doe's allegations belie her failure to warn claim; (3) Doe failed to sufficiently plead her scope of employment claim; (4) Doe failed to sufficiently plead her breach of assumed duty claim; (5) the VWC student peer advisor's alleged conduct was not a proximate cause of Doe's alleged injuries; (6) VWC's hiring and retention of the peer advisor was not a proximate cause of Doe's alleged injuries; (7) the VWC security officer's alleged conduct was not a proximate cause of Doe's alleged injuries; (8) VWC's hiring and retention of campus security officers was not a proximate cause of Doe's alleged injuries; (9) Doe assumed the risk of injury or was contributorily negligent; and (10) the alleged fraud was not the proximate cause of Doe's alleged injuries. (VWC's Dem. 3-24).
Doe filed a Memorandum in Opposition to VWC's Demurrer. (Memo. in Opp'n to VWC's Dem.). Doe presents five arguments in response to VWC's Demurrer: (1) VWC owed a legal duty to warn and protect Doe from third-party criminal acts or victimization, (id. at 2-19); (2) failure to warn claims encompass inadequate warnings, (id. at 19-20); (3) scope of employment issues are factual matters for the jury to resolve, (id. at 20); (4) the breach of assumed duty claim is sufficient as pleaded, (id. at 20-21); and (5) proximate cause, assumption of the risk, and contributory negligence are jury questions, (id. at 21).
Roe demurred to VWC's Amended Third-Party Complaint, alleging that: (1) VWC has no claim for indemnity against Roe as a former student; (2) VWC has no claim for contribution against Roe as a former student; (3) VWC cannot prevail against Roe for breach of contract because the alleged contracts disclaim contractual liability; and (4) VWC is not entitled to attorney's fees. (Roe's Dem. 2-7).
VWC filed a Response to Roe's Demurrer that addresses each of Roe's grounds. (VWC's Resp. to Dem.). For its express indemnity and breach of contract claims, VWC points to two contracts between Roe and VWC—a portion of Roe's VWC college application and a college residential agreement. (Id. at 2). VWC argues that it has an implied right to indemnification based on equitable considerations arising out of the circumstances of the case. (Id. at 3-4). VWC also reasserts that its contribution and attorney's fees claims are proper. (See generally id.).
Subsequent to VWC's related Reply, Roe filed a Brief in Support of Demurrer. VWC then filed a Surreply to Roe's Brief in Support.
VWC's Motion for Bill of Particulars focuses on the negligent hiring claim asserted by Doe. VWC argues that Doe's Complaint fails to inform VWC of the nature of Doe's negligent hiring/retention claim. (Mot. for Bill of Particulars 2). VWC's position is that it "is not in a position to fully assess and respond to [Doe's] Complaint." (Id.). VWC requests that the Court order Doe to file a Bill of Particulars that: (1) identifies the "allegedly incompetent security guard"; (2) states whether VWC knew—or should have known—of the security guard's alleged incompetence; and (3) articulates how VWC's hiring of the security guard was the proximate cause of Doe's alleged injuries. (Id.).
Doe filed a Memorandum in Opposition to VWC's Motion for Bill of Particulars. (Memo. in Opp'n to Bill of Particulars). Doe presents two arguments in her motion. (Id. at 2-3). First, she states that her Complaint is sufficient under Rule 3:18 of the Rules of Supreme Court of Virginia. (Id. at 2). Second, Doe asserts that the discovery process—and not a Bill of Particulars—is the appropriate mechanism for VWC to acquire additional information regarding the facts and information on which the Complaint is based. (Id. at 3-4).
VWC replied to Doe's Memorandum in Opposition, challenging Doe's two arguments. (Reply to Memo. in Opp'n to Bill of Particulars 1-3). VWC claims that the Complaint does not satisfy Virginia Supreme Court Rule 3:18 and points out that it is not aware of—and Doe does not cite—any case that stands for the proposition that a request for Bill of Particulars is inappropriate under the circumstances. (Id. at 2). VWC, responding to Doe's argument that discovery would provide VWC with additional information, then states that "after months of pressing for additional information" via discovery, Doe has not provided information disclosing the factual bases of her claim. (Id. at 3).
Roe bases his Special Plea in Bar on the statute of limitations, claiming that VWC's complaint against him should be dismissed. (Special Plea in Bar 1). Roe notes that, according to the Complaint, the alleged rape and sexual assault took place "on or about August 24 or 25 of 2012." (Id.). Doe filed her Complaint on October 3, 2014, more than two years after the alleged cause of action arose. (Id.). Roe asserts that—although there apparently is a tolling agreement between VWC and Doe (the "Tolling Agreement") that tolled the statute of limitations for the claim—the Tolling Agreement does not apply to him because he was not a party to the agreement. (Id. at 1 -3).
Roe's Brief in Support reinforces his argument that the Tolling Agreement "was not presented to Roe for consideration and, indeed, he is not a signatory to it and thus [he is] not in any way bound by it." . Roe points out that although "the statute of limitations for indemnity or contribution does not accrue until the one seeking indemnity or contribution makes payment or has judgment rendered against it," Section 8.01-281(A) of the Code of Virginia allows VWC to sue Roe—if it desires to do so—for contribution or indemnity based on future potential liability. (Id.). Roe argues that the court in VEPCO views a cause of action by the injured person against the alleged wrongdoer for whom contribution is sought as an "essential" element to seek contribution or indemnification from the alleged wrongdoer. (Id.). In this case, Roe argues that because he was not a party to the Tolling Agreement, the "essential" element articulated in VEPCO was not satisfied prior to when the statute of limitations ran. (Id. 2-3).
VWC replied to Roe's Special Plea in Bar, arguing that "[t]he statute of limitations on an indemnification or contribution claim does not begin to run until the common obligation has been paid or discharged." (Resp. to Special Plea in Bar 1 (citing Gemco-Ware, Inc. v. Rongene Mold...
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