Shoemaker v. Funkhouser

Decision Date25 March 2021
Docket NumberRecord No. 191218
Citation856 S.E.2d 174
CourtVirginia Supreme Court
Parties Jessica SHOEMAKER, Administrator and Personal Representative of the Estate of Gina Angela Shoemaker v. Richard E. FUNKHOUSER, et al.

James J. O'Keeffe (Bradley G. Pollack, on briefs), for appellant.

Randall T. Perdue (TimberlakeSmith, on brief), Staunton, for appellees.

Amicus Curiae: Virginia Trial Lawyers Association (E. Kyle McNew ; MichieHamlett, on brief), Charlottesville, in support of appellant.

PRESENT: All the Justices


Gina Angela Shoemaker was accidentally shot and killed while visiting her mother. The shooter was himself visiting his grandparents, Richard E. and Anna E. Funkhouser ("the Funkhousers"), who, according to the allegations in the complaint, gave him permission to shoot in the direction of the house Shoemaker was visiting. Shoemaker's administrator filed suit against the Funkhousers, asserting they were negligent in granting permission to their grandson to shoot in this manner. The Funkhousers filed a demurrer, arguing that Shoemaker's lawsuit failed as a matter of law because they owed Gina Shoemaker no legal duty. The trial court agreed with the Funkhousers and dismissed the case. We conclude that, on the specific allegations of this complaint, the judgment below should be reversed and the case remanded.


The circuit court dismissed this case on a demurrer. In that circumstance, we accept the allegations of the complaint as true. Richard and Anna Funkhouser live in Shenandoah County, at 37 Charlotte Road, on a property of almost eight acres. Dorothy Nesselrodt is a neighbor of the Funkhousers. Nesselrodt resides at 259 Charlotte Lane.

Nesselrodt is the mother of Gina Shoemaker. Shoemaker was visiting her mother at her house on November 23, 2014, when the Funkhousers were receiving a visit from Shawn Jason Nicely, their grandson.

According to the complaint, the Funkhousers gave Nicely permission "to shoot targets with a rifle on the Funkhouser property in the direction of 259 Charlotte Lane, at a firing position within sight of the Funkhouser home." The Funkhousers knew that Nesselrodt's house "was on the other side of trees, which were not densely arranged." The Funkhousers "knew, or should have known, that the firing of a rifle in the direction of the residence at 259 Charlotte Lane would go around or penetrate through the trees and result in bullets/ammunition striking such residence and anyone located therein." One of the bullets did penetrate the walls of Nesselrodt's house, striking Shoemaker and killing her.

Jessica Shoemaker, the administrator and personal representative of Gina Shoemaker, filed a wrongful death action against the Funkhousers. The complaint, which was amended several times, alleged that the Funkhousers owed a duty to refrain from granting Nicely permission to shoot a rifle from their property in the direction of Nesselrodt's house, and that they were negligent in granting him this permission. The Funkhousers filed a demurrer, contending that the complaint was barred because the Funkhousers did not owe Nesselrodt or any of her visitors a duty, and, in addition, the immunity afforded to landowners by the Recreational Land Use Act, Code § 29.1-509, foreclosed the suit. The circuit court agreed with the Funkhousers, sustained the demurrer, and dismissed the case. This appeal followed.



"The question of liability for negligence cannot arise at all until it is established that the [individual] who has been negligent owed some duty to the person who seeks to make him liable for his negligence." Dudley v. Offender Aid & Restoration of Richmond, Inc. , 241 Va. 270, 277, 401 S.E.2d 878 (1991) (quoting Le Lievre v. Gould [1893] 1 Q.B. 491, 497 (Eng.) (opinion of Esher, M.R.)). " [W]hether a legal duty in tort exists is a pure question of law’ " to be reviewed de novo. Burns v. Gagnon , 283 Va. 657, 668, 727 S.E.2d 634 (2012) (quoting Kellermann v. McDonough , 278 Va. 478, 487, 684 S.E.2d 786 (2009) ).

We have frequently grappled with the question of whether a duty exists on a particular set of facts. See, e.g. , Quisenberry v. Huntington Ingalls Inc. , 296 Va. 233, 249, 818 S.E.2d 805 (2018) ; RGR, LLC v. Settle , 288 Va. 260, 276, 764 S.E.2d 8 (2014). "General negligence principles require a person to exercise due care to avoid injuring others." RGR, LLC , 288 Va. at 275, 764 S.E.2d 8. Specifically, the common law requires that " ‘every person [must] exercise ordinary care in the use and maintenance of his own property to prevent injury to others.’ " Quisenberry , 296 Va. at 242, 818 S.E.2d 805 (quoting Perlin v. Chappell , 198 Va. 861, 864, 96 S.E.2d 805 (1957) ). The duty, however, is "not abstract: a specific course of conduct gives rise to a specific duty extending to specific persons." Id.

We have also stated that " ‘in determining whether a duty exists, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant must be taken into account. Imposition of a duty does not depend upon foreseeability alone.’ " Gulf Reston, Inc. v. Rogers , 215 Va. 155, 159, 207 S.E.2d 841 (1974) (quoting Trice v. Chicago Hous. Auth. , 14 Ill.App.3d 97, 302 N.E.2d 207, 209 (Ct. 1973) ).

As a general proposition, "the occupier of land must use reasonable care for the safety of those outside the land to prevent direct harm resulting from his affirmative activities on the land." 2 Dan B. Dobbs, The Law of Torts § 272 (2d ed. 2011).1 A landowner

has the privilege to make use of the land for his own benefit, and according to his own desires, which is an integral part of our whole system of private property; but it has been said many times that this privilege is qualified by a due regard for the interests of others who may be affected by it. The possessor's right is therefore bounded by principles of reasonableness, so as to cause no unreasonable risks of harm to others in the vicinity.

W. Page Keeton et al., Prosser & Keeton on Torts § 57 (5th ed. 1984); see also Restatement (Second) of Torts § 371 (1965) ("A possessor of land is subject to liability for physical harm to others outside of the land caused by an activity carried on by him thereon which he realizes or should realize will involve an unreasonable risk of physical harm to them under the same conditions as though the activity were carried on at a neutral place.").

That duty, however, generally applies to the occupier of the land, not to third parties who may be on the land. In general, an owner or occupier of land has no duty to protect others from the harmful acts of a third person acting on or near their property. See Restatement (Second) of Torts § 315 (1965) ; Burns , 283 Va. at 668, 727 S.E.2d 634 ("We have consistently held that ‘generally a person does not have a duty to protect another from the conduct of third persons.’ ") (internal citations omitted). Section 315 of the Second Restatement of Torts recognizes the general principle that "[t]here is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person ..., or (b) a special relation exists between the actor and the other ...."2

Furthermore, a person has a right to presume others will exercise due care "until the contrary appears." Harris Motor Lines v. Green , 184 Va. 984, 992, 37 S.E.2d 4 (1946) ; see also Prosser & Keeton on Torts § 33 ("In general, where the risk is relatively slight, a person is free to proceed upon the assumption that other people will exercise due care."); Jorgensen v. Horton , 206 N.W.2d 100, 105 (Iowa 1973) ("One may presume the due care of others until he knows or in the exercise of reasonable care should know otherwise."); Weavil v. Myers , 243 N.C. 386, 390-91, 90 S.E.2d 733, 737 (1956) ("It is a well settled principle of law that a person is not bound to anticipate negligent acts or omissions on the part of others; but, in the absence of anything which gives, or should give notice to the contrary, he is entitled to assume and to act upon the assumption that every other person will perform his duty and obey the law and that he will not be exposed to danger which can come to him only from the violation of duty or law by such other person."). Therefore, as a general proposition, landowners who have granted permission to others to engage in certain activities on their land face no liability from the independent acts of others.

The Second Restatement of Torts recognizes exceptions to these general principles for relationships made "special" by virtue of the degree of control the actor/defendant is able to exercise over the third party.3 Notably, § 318 of the Second Restatement of Torts recognizes that a duty may arise between the landowner and those allowed on the land because of the possessor's power of control over those allowed to enter. See also Prosser & Keeton on Torts § 57. If such a duty were to arise, the landowner would have to exercise reasonable care for the protection of others, including "the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands." Id. at § 61.

Section 318 of the Second Restatement of Torts provides as follows:

If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor
(a) knows or has reason to know that he has the ability to control the third person,

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    ..., 232 Va. 350, 353, 350 S.E.2d 621 (1986).13 E.g. , Doe v. Baker , 299 Va. 628, 655, 857 S.E.2d 573 (2021) ; Shoemaker v. Funkhouser , 299 Va. 471, 481-82, 856 S.E.2d 174 (2021) ; Padula-Wilson v. Landry , 298 Va. 565, 576, 841 S.E.2d 864 (2020) ; Tingler v. Graystone Homes, Inc. , 298 Va. ......
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    ...courts "disfavor a construction of statutes that renders any part of the statute useless or superfluous." Shoemaker v. Funkhouser , 299 Va. 471, 487, 856 S.E.2d 174 (2021). However, as noted above, the phrase "could create a hazard" operates as a vitally important limitation on the scope of......
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