Taboada v. Daly Seven, Inc.

• Decision Date: 02 March 2007
• Docket Number: Record No. 051094.
• Citation: 641 S.E.2d 68
• Parties: Ryan TABOADA, Appellant, v. DALY SEVEN, INC., Appellee.
• Court: Virginia Supreme Court

641 S.E.2d 68

Ryan TABOADA, Appellant, v. DALY SEVEN, INC., Appellee.

Record No. 051094.

Supreme Court of Virginia.

March 2, 2007.

Upon a Petition for Rehearing, Circuit Court No. CL0301075.

On March 3, 2006, this Court rendered a judgment in favor of Ryan Taboada, reversing in part the judgment of the trial court sustaining Daly Seven, Inc.'s demurrer, and remanding the case for further proceedings. Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428 (2006). On March 27, 2006, counsel for Daly Seven, Inc. filed a petition for rehearing. In an order dated August 11, 2006, for reasons not pertinent to the merits of this case, we struck the petition for rehearing and permitted Daly Seven, Inc. to file another petition for rehearing. Taboada v. Daly Seven, Inc., 272 Va. 211, 216, 636 S.E.2d 889, 891 (2006). Daly Seven, Inc. filed a new petition for rehearing on August 31, 2006. By an order entered November 17, 2006, this Court awarded Daly Seven, Inc. a rehearing pursuant to the provisions of Rule 5:39(e), but in doing so, did not set aside the judgment previously rendered on March 3, 2006.

Now, therefore, in consideration of the record, the briefs originally filed by the parties, the petition for rehearing of Daly Seven, Inc. filed pursuant to this Court's order of August 11, 2006, the response of Ryan Taboada to that petition, and the argument of the parties, the Court is of the opinion that, for the reasons stated in the opinion in this case dated March 3, 2006, the judgment of this Court should not be set aside. Accordingly, we will affirm the judgment of the trial court sustaining the demurrer to Ryan Taboada's claim under Code § 35.1-28, reverse the judgment of the trial court sustaining the demurrer to Ryan Taboada's common law claim, and remand the case for a trial on the merits of that claim.

Justice AGEE, with whom Justice KINSER joins, concurring in part and dissenting in part.

As the majority opinion accurately recites, this appeal arises from the circuit court's judgment sustaining Daly Seven's demurrer to Taboada's amended motion for judgment alleging Daly Seven was liable for injuries Taboada sustained as a result of Derrick Smith's criminal conduct. While I agree with the majority opinion as to the disposition of Taboada's claim under Code § 35.1-28, I respectfully disagree that Taboada stated a common law claim for negligence cognizable in Virginia under the facts alleged. In my view, the majority opinion is in error for at least two reasons. First, the majority misreads the standard our precedent has applied to the duty of a common carrier to its passengers, which is the basis for the duty it now imposes on innkeepers. Second, even if the standard derived by the majority was supported by our case law, the majority applies that standard in this case in a manner inconsistent with the common carrier cases.

As a general rule, "the owner or possessor of land is under no duty to protect invitees from assaults by third parties while the invitee is upon the premises." E.g., Wright v. Webb, 234 Va. 527, 530, 362 S.E.2d 919, 920 (1987); Yuzefovsky v. St. John's Wood Apartments, 261 Va. 97, 106, 540 S.E.2d 134, 139 (2001). A narrow exception to this rule recognizes a cause of action when the plaintiff can establish that a special relationship exists between the defendant and either the plaintiff or the third party criminal actor, such that the defendant owes a duty of care to warn or protect the plaintiff from the danger of harm by the third party's criminal acts. Yuzefovsky, 261 Va. at 107, 540 S.E.2d at 139-40; Thompson v. Skate America, Inc., 261 Va. 121, 129, 540 S.E.2d 123, 127 (2001). Because Taboada was a registered guest of Daly Seven at the time of the assault, this case does involve a special relationship previously recognized in our case law. Thompson, 261 Va. at 129, 540 S.E.2d at 127 ("[E]xamples of such necessary special relationships that arise as a matter of law . . . include a common carrier and its passengers, an employer and its employees, an innkeeper and its guests, and a business owner and its invitees.") However, the existence of a special relationship alone does not establish any liability on the part of a defendant. A potential plaintiff must establish that the "special relationship also gave rise to a duty of care on the part of [the defendant] to protect [the plaintiff] from the danger of harm from the criminal act of [the third party]." See id. "The question whether a duty of care exists in a negligence action is a pure question of law." Burns v. Johnson, 250 Va. 41, 45, 458 S.E.2d 448, 451 (1995).

As the majority observes, this case presents the first occasion the Court has opined on the merits regarding an innkeeper's liability in tort when the plaintiff was a guest of the innkeeper at the time he was the victim of a third party's criminal act. The Court has, however, examined this issue in the context of other "special relationships that arise as a matter of law." Pertinent to the analysis of the innkeeper's duty is our decision in Wright, where the plaintiff was the victim of a criminal act on the innkeeper's premises, but had the status of "business invitee" rather than "guest." We held in Wright that

a business invitor, whose method of business does not attract or provide a climate for assaultive crimes, does not have a duty to take measures to protect an invitee against criminal assault unless he knows that criminal assaults against persons are occurring, or are about to occur, on the premises which indicate an imminent probability of harm to an invitee.

Id. at 533, 362 S.E.2d at 922; see also Gupton v. Quicke, 247 Va. 362, 442 S.E.2d 658 (1994).

In Wright, the Court enunciated the standard of "imminent probability of harm" from its analysis of the same cases the majority cites concerning a common carrier's duty to a passenger. We determined in Wright that a condition precedent for the common carrier's duty established by case law was "notice of a specific danger just prior to the assault." Id. at 533, 362 S.E.2d at 922.

Prior to articulating the "notice of a specific danger just prior to the assault" and "imminent probability of harm" standard, we declined to adopt a general affirmative duty to protect invitees because "acts of assaultive criminal behavior cannot reasonably be foreseen." Id. at 531, 362 S.E.2d at 921. Under ordinary circumstances, "it would be difficult to anticipate when, where, and how a criminal might attack." Id.; see also A.H. v. Rockingham Publ'g Co., 255 Va. 216, 222, 495 S.E.2d 482, 486 (1998). Thus, "imminent probability of harm" and "reasonably foreseeable" are interconnected concepts, and — at least in determining liability in Wright and subsequent cases involving the business owner-invitee relationship — the foreseeability of a particular criminal act was analyzed in terms of the business owner's knowledge that assaults "are occurring, or are about to occur . . . indicat[ing] an imminent probability of harm to an invitee." See, e.g., Wright, 234 Va. at 533, 362 S.E.2d at 921-22; Burns, 250 Va. at 43-45, 458 S.E.2d at 449-50 (assault at gas station).

Our later cases show a similar understanding. In Thompson,¹ we held that the plaintiff alleged facts sufficient to show that the operator of a roller skating rink owed him a duty of care because "it [was] alleged that a specific individual was known to [that defendant] to be violent and to have committed assaults on other invitees on its property in the recent past" prior to that individual's attack the plaintiff. Id. at 130, 540 S.E.2d at 128.

While in Wright, and other cases, we have declined to "impose liability for negligence based solely upon . . . a background" of prior criminal activity on the defendant's premises or in its vicinity by unknown persons, here the circumstances are quite different. Indeed, the allegations in Thompson's motion for judgment plainly state that Skate America had specific knowledge of Bateman's propensity to assault its other invitees, had intervened to inhibit that behavior in the past, and had taken steps to avoid a reoccurrence of that behavior in the future. Thus, taking these allegations as true on demurrer, we are of opinion that the allegations as to Bateman's presence on Skate America's premises were sufficient to state a claim that Skate America was on notice specifically that Thompson was in danger of being injured by Bateman in a criminal assault. The "imminent probability" of that harm, as characterized in Wright, is merely a heightened degree of the "foreseeability" of that harm and here we are of opinion that the specific allegations concerning the knowledge Skate America had of Bateman's prior violent conduct satisfied the necessary degree of foreseeability.

Id. (internal citation omitted).

In a case decided the same day as Thompson, Dudas v. Glenwood Golf Club, Inc., 261 Va. 133, 540 S.E.2d 129 (2001),² the Court rejected the plaintiff's argument based on A.H. that "where there are prior similar criminal attacks, the issue becomes whether the plaintiff's injury was reasonably foreseeable."³ Dudas, 261 Va. at 139, 540 S.E.2d at 132. The Court explained that its "analysis in A.H. focused on the particular special relationship and the surrounding circumstances at issue there and did not modify [the] holding in Wright concerning the potential duty of care owed by a business invitor to its invitee with regard to criminal acts committed by third parties on its premises." Id. Instead, the Court relied upon the analysis in Wright, noting, "[i]n applying that exception [to the general rule of no liability], careful analysis of particular factual patterns in subsequent cases must be used to avoid permitting the narrow exception to swallow the general rule." Id. at 139, 540 S.E.2d at 132-33. The Court stated the proper inquiry was "whether this previous criminal activity was sufficient to `lead a reasonable person . . . to conclude...