Kellermann v. McDonough, Record No. 081718

CitationRecord No. 081718
Case DateNovember 05, 2009
CourtSupreme Court of Virginia


Record No. 081718

Supreme Court of Appeals of Virginia

November 5, 2009*

Present: All the Justices


Daniel T. Balfour, Judge


The primary question that we consider in this appeal is whether adults who agree to supervise and care for a child owe a duty to exercise reasonable care in the supervision and care of that child.


Michael H. Kellermann, administrator of the estate of his daughter, Jaimee Elizabeth Kellermann, filed a wrongful death action against Paul McDonough and Paula McDonough (the McDonoughs). Kellermann alleged in the complaint that Paul McDonough and Paula McDonough breached numerous duties owed to Jaimee and as a result of such breaches Jaimee died. The McDonoughs filed a demurrer to the complaint asserting, among other things, that they owed no duties in tort to Jaimee, a 14-year-old child under their supervision and care. Even

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though the circuit court initially overruled the demurrer, the court subsequently sustained the demurrer and entered an order dismissing the complaint. Kellermann appeals.



The purpose of a demurrer is to determine whether a complaint states a cause of action upon which relief may be granted. Tronfeld v. Nationwide Mutual Ins. Co., 272 Va. 709, 712-13, 636 S.E.2d 447, 449 (2006); Welding, Inc. v. Bland County Service Auth., 261 Va. 218, 226, 541 S.E.2d 909, 913 (2001). "A demurrer admits the truth of all properly pleaded material facts. 'All reasonable factual inferences fairly and justly drawn from the facts alleged must be considered in aid of the pleading. However, a demurrer does not admit the correctness of the pleader's conclusions of law.' " Dodge v. Randolph-Macon Woman's College, 276 Va. 1, 5, 661 S.E.2d 801, 803 (2008) (citations omitted); accord Tronfeld, 272 Va. at 713, 636 S.E.2d at 449; Fuste v. Riverside Healthcare Ass'n, 265 Va. 127, 131-32, 575 S.E.2d 858, 861 (2003). With these principles in mind, we will consider the litigants' arguments.

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Kellermann pled the following facts in his complaint that are relevant to our disposition of this appeal. Michael Kellermann and Elizabeth Kellermann (the Kellermanns) were the natural parents of Jaimee Kellermann. At the time of the events described in the complaint, they lived in Wake Forest, North Carolina.

In December 2004, the McDonoughs, husband and wife who resided in Henrico County, informed the Kellermanns that the McDonoughs' daughter, Becka McDonough, was "having a 'tough time of it.' " The McDonoughs told the Kellermanns that Becka's "outlook and mood" might improve if she spent time with her former classmate, Jaimee, who had moved from Henrico County with her family to North Carolina in 2002. The McDonoughs asked the Kellermanns if "Jaimee Kellermann could stay a night or two at the McDonoughs' home."

The Kellermanns agreed that Jaimee could spend one night with the McDonoughs and Becka. On Saturday, December 4, 2004, Michael Kellermann left his home with Jaimee and traveled 150 miles, approximately half the distance between their home in North Carolina and Richmond, Virginia, where they met Paula McDonough and Becka. "Michael Kellermann asked . . . Paula McDonough what activities were planned during Jaimee

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Kellermann's stay at the McDonoughs' home. . . . Paula McDonough said that they planned to go to the new shopping mall. . . . Paula McDonough said that she would be taking the girls to the mall. Michael Kellermann then said that Jaimee Kellermann was not to be driven by any inexperienced drivers. He then emphasized that his daughter was not to be in a car with any young, male drivers, stating 'no boys with cars.' The rule was intended for Jaimee Kellermann's safety and was a rule enforced by the Kellermanns at their home." Paula McDonough agreed and said "'don't worry, I promise we'll take good care of her,' or words to that effect." Paula McDonough returned to her home in Henrico County with Jaimee and Becka.

Later that day, Paula McDonough took Jaimee and Becka to a shopping mall and movie theater complex in Henrico County. Paula McDonough "dropped the girls off, and drove away, leaving them unsupervised."

Mary Madelyn Lane (Maddie) joined Becka and Jaimee at the shopping mall. All the girls were 14 years old and were former classmates as well as best friends. The girls planned to go to a movie theater.

Before the girls went to the movie theater, Nathan DeFrank (Nate), a 17-year-old boy who was Becka's friend, arrived at the shopping center in his car. Nate had a reputation for reckless behavior. Allegedly, Becka had "gone

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street racing with [Nate]; Becka McDonough may have driven the car at times." Nate had been stopped by police officers previously because Nate had driven his car more than 20 miles per hour over the speed limit.

After meeting Nate, the girls attended a movie with Nate and another young male, Bruce MacConnell, who was 15 years old. After the movie concluded, Becka spoke, by telephone, with her mother, Paula McDonough. Becka either asked Paula McDonough if the girls could obtain a ride home with Nate, or Becka "informed . . . Paula McDonough that the girls were going to be driven [home] by [Nate]." Even though the Kellermanns had instructed Paula McDonough that their daughter, Jaimee, "was not to be driven by any non-adult drivers," Paula McDonough "purposefully instructed or otherwise permitted the girls to go home with [Nate] in his car."

Jaimee and Maddie did not want to ride in the car with Nate. After learning that Paula McDonough had directed the girls to obtain a ride home with Nate, Jaimee and Maddie "separated from Becka McDonough, [Nate], and Bruce." Jaimee and Maddie tried to contact, by telephone, Maddie's father, mother and brother. Jaimee and Maddie were unable to contact them. Jaimee and Maddie also tried to contact one other person, by telephone, but they were not successful.

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Jaimee and Maddie reluctantly got into Nate's car about 10:00 p.m. Nate began to "drive wildly." "On a two-lane, winding road, [Nate] drove [his car] at speeds that at times approached or exceeded 80 miles per hour." Jaimee and Maddie, "clutching each others['] hands in the back seat, begged [Nate] to slow down or to let them out. At one point, while driving at or over 25 miles per hour, [Nate] opened his door and told Jaimee Kellermann and Maddie Lane they could get out of the moving car if they wished."

"Fearing for her life, Jaimee Kellermann sent a 'text message' to her father and a friend. She said to her friend in real-time messages that: she wanted to go home, that she wanted to get away from the 'guys,' and that she feared she would 'die.' She also said that 'they're planning on street racing.' "

As Nate drove his car, he approached oncoming "headlights in the distance. [Nate] slammed on the brakes and pulled the hand brake. [His] car skidded and the front end spun to the right side of the road, causing the rear left passenger side of the car, where Jaimee Kellermann was seated, [to leave the road and] slam into a tree. The car recoiled off the tree and came to rest in the roadway. The car left a skid mark 173 feet long, and a 'yaw mark' that measured 92 feet." When Nate

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lost control of his car, he was traveling at least 77 miles per hour.

Jaimee was transported by helicopter to the Virginia Commonwealth University Medical Center, where she died the next morning. Paula McDonough was informed of the car accident and she went to the hospital. She repeatedly told Maddie's parents "that she feared that she was 'going to be sued' for directing the girls to go in [Nate]'s car, which violated the Kellermann's clear instructions."



Kellermann argues that he pled a cause of action in tort against the McDonoughs and that they owed a duty of care to Jaimee. Kellermann alleged that Jaimee was a 14-year-old minor; she was visiting the McDonoughs' home at their invitation; she was dependent upon the McDonoughs to make wise decisions about her care and safety; and the McDonoughs breached this duty of care. Responding, the McDonoughs argue that they owed no duty of care to Jaimee, and hence the circuit court properly sustained their demurrer. We disagree with the McDonoughs' argument.

We have stated that a "plaintiff who seeks to establish actionable negligence must plead the existence of a legal duty, violation of that duty, and proximate causation which

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results in injury." Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 132, 523 S.E.2d 826, 830 (2000); accord Marshall v. Winston, 239 Va. 315, 318, 389 S.E.2d 902, 904 (1990); Fox v. Custis, 236 Va. 69, 73-74, 372 S.E.2d 373, 375 (1988); Chesapeake and Potomac Tel. Co. v. Dowdy, 235 Va. 55, 61, 365 S.E.2d 751, 754 (1988); Trimyer v. Norfolk Tallow Co., 192 Va. 776, 780, 66 S.E.2d 441, 443 (1951).

The issue whether a legal duty in tort exists is a pure question of law. Yuzefovsky v. St. John's Wood Apartments, 261 Va. 97, 106, 540 S.E.2d 134, 139 (2001); Burns v. Johnson, 250 Va. 41, 45, 458 S.E.2d 448, 451 (1995). If the allegations in a complaint are legally sufficient to establish the existence of a duty, then a jury, upon consideration of the evidence, must determine whether the duty has been performed. Yuzefovsky, 261 Va. at 106, 540 S.E.2d at 139; Acme Markets, Inc. v. Remschel, 181 Va. 171, 178, 24 S.E.2d 430, 434 (1943).

The gist of Kellermann's claim against the McDonoughs is that they had a common law duty to supervise and care for Jaimee, a 14-year-old child who was dependent upon the McDonoughs' care and supervision. We agree with Kellermann that he pled a common law cognizable cause of action in negligence against the McDonoughs. We hold that when a parent relinquishes the supervision and care of a child to an adult

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who agrees to supervise and care for that child, the supervising adult must...

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