November 8, 2013

The Virginia Supreme Court recently overturned a wrongful death verdict arising from the 2007 Virginia Tech massacre. In an opinion by Justice Cleo Powell, the court held that the school had no duty to warn students about the potential for criminal acts by third parties. The wrongful death cases were filed by the families of two students who were killed in the shooting, which claimed 32 lives. The two families opted out of an $11 million settlement the other victims’ families agreed to in 2008.

A jury had previously ruled in favor of the plaintiffs and awarded each family $4 million. The jury awards were later decreased to $100,000 apiece in accordance with the Virginia Tort Claims Act. The Act, codified at Va. Code Ann. § 8.01-195.1, limits damages to $100,000 for claims “stemming from damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth…would be liable to the claimant for such damage, loss, injury or death.” The Act applies to lawsuits against the Commonwealth and its transportation districts.

The 2001 Virginia Supreme Court case Thompson v. Skate America, Inc. held as a general rule that a person does not have a duty to warn or protect another from criminal acts of a third person. A subsequent 2006 Virginia Supreme Court case, Toboada v. Daly Seven, Inc., held that there are fact-specific exceptions to the rule established in Thompson.

In order to meet the exception to Thompson, the facts in the case must establish the existence of a special relationship recognized by law that gives rise to a duty to warn of potential for criminal acts by third parties. Some special relationships recognized by Virginia law include: carrier and passenger, innkeeper and guest, and employer and employee. Where third-party criminal acts are known or reasonably foreseeable, there may be a duty to warn under the circumstances of these relationships.

In the Virginia Tech wrongful death case, the court did not decide whether a special relationship existed between the Commonwealth and Virginia Tech students, but found that the facts did not create a duty to warn on the part of the Commonwealth. Justice Powell’s opinion notes that the Commonwealth did not know who the shooter was and that law enforcement officials believed the shooting was a domestic incident and the shooter had fled the area. Based on the “limited information available to the Commonwealth prior to the shootings in Norris Hall, it cannot be said that it was known or reasonably foreseeable that students in Norris Hall would fall victim to criminal harm.”

The Cochran Firm, D.C. represents families of wrongful death victims and has closely tracked this case due to its potential to influence future Virginia wrongful death decisions. Mass shootings have tragically become a more common occurrence in American public life. We strongly believe victims of these shootings and their families should have the right to seek justice against those who perpetrated a shooting or those who could have reasonably prevented it from happening. The arbitrary cap of $100,000 is too low and needs to be revisited. Legislative action is the only likely way to correct this injustice.