Thompson ex rel. Thompson v. Skate America

• Decision Date: 12 January 2001
• Docket Number: Record No. 000461.
• Citation: 540 S.E.2d 123,261 Va. 121
• Parties: Jonathan THOMPSON, an Infant who sues by his Mother and Next Friend, Cynthia THOMPSON v. SKATE AMERICA, INC., et al.
• Court: Virginia Supreme Court

540 S.E.2d 123

261 Va. 121

Jonathan THOMPSON, an Infant who sues by his Mother and Next Friend, Cynthia THOMPSON v. SKATE AMERICA, INC., et al.

Record No. 000461.

Supreme Court of Virginia.

January 12, 2001.

William O. Smith, Richmond, for appellant.

William B. Tiller (M. Scott Bucci; Morris & Morris, on brief), Richmond, for appellee Skate America, Inc.

M. Todd Gerber (Huff, Poole & Mahoney, on brief), Virginia Beach, for appellee Bonnie Mundie.

Present: LACY, HASSELL, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and STEPHENSON, Senior Justice.

KOONTZ, Justice.

In this appeal, we consider whether the trial court properly sustained demurrers to a motion for judgment. In his motion for judgment, the plaintiff, a business invitee, alleged that a minor, also a business invitee, intentionally injured him while on the premises of the business owner. The plaintiff further alleged that his injuries proximately resulted from the negligence of the business owner and the minor's parent.

BACKGROUND

Our review is governed by the well-settled principle that when we consider the trial court's sustaining of a demurrer "we look solely at [the plaintiff's] allegations in his motion for judgment to determine whether he stated a cause of action." Perk v. Vector Resources Group, Ltd., 253 Va. 310, 312, 485 S.E.2d 140, 142 (1997). In accord with this standard of review, we will recite as true the well-pleaded facts in the motion for judgment.

On October 18, 1999, Jonathan Thompson, by his mother and next friend, Cynthia Thompson, filed a motion for judgment against Skate America, Inc., Travis Bateman, and Bonnie Mundie, Bateman's mother.¹ That pleading contains the following allegations of fact. On March 12, 1999, Thompson and Bateman were both patrons and invitees of Skate America, a commercial skating rink in Hanover County. "[O]n several prior occasions, Bateman had caused disturbances, arguments and fights" at Skate America and "was a known trouble maker, consistently disobeyed the rules of [Skate America] and generally was a menace to ... patrons of the skating rink." On several prior occasions, "Bateman had been ejected from Skate America by its employees," and he "had been banned from reentry to Skate America on multiple occasions and was under such a ban" on March 12, 1999.

At closing time, Thompson and Bateman were waiting on Skate America's premises for their parents to pick them up. "[W]ithout... provocation, Bateman struck [Thompson] in the back of [his] head with a roller skate, fracturing [his] skull, causing severe and permanent damage, extensive hospitalization and medical expense and grave emotional damage."

In separate counts of the motion for judgment, Thompson asserts that Skate America, Bateman, and Mundie are separately and jointly liable for the injuries caused by Bateman. Bateman's alleged liability is premised on the assault and battery being a deliberate, intentional act. Skate America's and Mundie's alleged liability is premised on their negligent failure to conduct themselves in accord with duties of care each owed, as business owner and parent respectively, to Thompson regarding the danger of injury from the unlawful act of Bateman. It is further asserted in the motion for judgment that Thompson's injuries were proximately caused by the actions of the defendants.

Thompson specifically asserts in the motion for judgment that Skate America owed its business invitees a duty to protect them by "exclud[ing] persons it knew or, in the exercise of reasonable care, should have known, demonstrated violent and aggressive behavior, so that business invitees, including [Thompson], would not be in danger of physical harm from" such persons. He further asserts that having banned Bateman from the premises, Skate America "failed and neglected to properly supervise Bateman once he had entered, and failed and neglected to keep the premises safe for those lawfully on the premises."²

Thompson also specifically asserts in the motion for judgment that Mundie "knew or in the exercise of reasonable care, should have known of Bateman's aggressive and violent behavior, ... that Bateman had been [banned] from Skate America and ... that Bateman was a risk to those ... around him." Thompson further asserts that, in light of this knowledge, "Mundie had the duty, as Bateman's mother and legal custodian,... to properly supervise and control him so that he would not endanger those around him."

Skate America filed a demurrer to the motion for judgment. Citing Wright v. Webb, 234 Va. 527, 530, 362 S.E.2d 919, 920 (1987), Skate America contended that a business owner is generally under no duty to protect an invitee from a third person's criminal act committed while the invitee is upon the owner's premises. Skate America conceded that Wright recognized a "narrow, limited exception to this general rule," Burns v. Johnson, 250 Va. 41, 44, 458 S.E.2d 448, 450 (1995), where the owner "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," and that in such cases this exception requires "notice of a specific danger just prior to the assault." Wright, 234 Va. at 533,362 S.E.2d at 922. Skate America contended, however, that the allegations of its knowledge of Bateman's prior propensity for disruptive, violent behavior were insufficient to establish that it had notice of the specific danger that Bateman would assault Thompson.

Mundie also filed a demurrer to the motion for judgment. Relying upon Bell v. Hudgins, 232 Va. 491, 494, 352 S.E.2d 332, 334 (1987), Mundie contended that, in the absence of a principal-agent relationship, a parent cannot be held separately liable for the malicious, intentional acts of a minor child premised upon the independent negligence of the parent in failing to control or supervise the child.

On December 3, 1999, the trial court held a hearing to consider both demurrers. Skate America and Mundie adhered to the positions stated in their pleadings. Thompson, who had not filed a response to either demurrer, argued that Skate America's decision to ban Bateman from its premises showed that it had sufficient notice that Bateman was a present danger to other patrons. Thompson also argued that a parent could be liable for negligently failing to prevent a child from acting on a known or knowable predilection to commit criminal acts.

The trial court sustained both demurrers. In the order dismissing Skate America and Mundie from the suit, the trial court expressly relied upon the Wright and Bell cases as the basis for its judgment. We awarded Thompson this appeal.

DISCUSSION

Initially, the finality of the judgments at issue here requires explanation. Bateman has not yet filed a response to the motion for judgment or otherwise entered an appearance in the trial court, or in this Court although he was made a party to this appeal. Thus, the case against Bateman remains active in the trial court, and the judgment order that is the subject of this appeal is interlocutory in nature.

An interlocutory order which is final as to some but not all parties may in some circumstances be appealed before the case is concluded as to all defendants under the severable interests rule set forth in Wells v. Whitaker, 207 Va. 616, 628-29, 151 S.E.2d 422, 432-33 (1966). See also Leggett v. Caudill, 247 Va. 130, 134, 439 S.E.2d 350, 352 (1994). Under this rule, a final adjudication of a collateral matter that addresses separate and severable interests can be appealed only when the appeal cannot affect the determination of the remaining issues in the case, even if the adjudication is reversed. Id. In such instances, the order may be appealed either at the time of its entry or when the trial court enters a final order disposing of the remainder of the case. Code § 8.01-670(A)(3); see also, e.g., Hinchey v. Ogden, 226 Va. 234, 236

-37 and n. 1, 307 S.E.2d 891, 892 and n. 1 (1983).

Bateman's liability, as alleged in the motion for judgment, is for the intentional assault and battery of Thompson. The cause of action for this intentional act by Bateman is separate and distinct from the causes of action for negligence asserted against Skate America and Mundie. Accordingly, the order that sustained the demurrers and dismissed Skate America and Mundie from the case was final as to them and severable from the interests of the remaining defendant.

The trial court's orders sustaining the two demurrers, each to a distinct cause of action, are addressed by Thompson in two assignments of error, one addressed to each demurrer. Accordingly, we will consider the legal sufficiency of the motion for judgment to state those two causes of action seriatim.

Cause of Action Against Skate America

The procedural posture of this case is significant. A demurrer tests only the legal sufficiency of the claims stated in the pleading challenged. Dray v. New Market Poultry Products, Inc., 258 Va. 187, 189, 518 S.E.2d 312, 312 (1999). While a demurrer does not admit the correctness of the pleading's conclusions of law, Ward's Equip., Inc. v. New Holland North America, Inc., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997), it "admits the truth of all material facts that are properly pleaded, facts which are impliedly alleged, and facts which may be fairly and justly inferred," Cox Cable Hampton Roads, Inc. v. City of Norfolk, 242 Va. 394, 397, 410 S.E.2d 652, 653 (1991). Thus, the sole question to be decided by the trial court is whether the facts thus pleaded, implied, and fairly and justly inferred are legally sufficient to state a cause of action against the defendant. In this context, a plaintiff challenging on appeal the sustaining of a defendant's demurrer by the trial court need show only that the trial court erred in finding that the pleading failed to state a cause of action, and not that the plaintiff would have prevailed on the merits of that...