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8/8/2019 Article by Richard Samet Revisions Final
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Survey of Liability for Criminal Assaults by Third Parties
By Richard S. Samet and D. Tyler Hawks ©2007
With Thanks to Stephen B. Royalty, Esquire, for his willingness to discuss the issues andhis experience in arguing Dudas v. Glenwood Golf Course, Inc., and other valuable
assistance.
I. INTRODUCTION
Recently the body of law that addresses the liability of business and land owners for the
criminal attacks of third parties on their premises has changed in Virginia. The intended scope
of this article is to familiarize the reader with these changes, as well as with the body of law from
which the rulings were derived.
Historically, Virginia jurisprudence has not allowed the imposition of liability of business
and land owners for the criminal acts of third parties against business invitees. 1 The basis of this
doctrine was foreseeability, and the concept that one should not have to shoulder the burden of
liability for failing to anticipate the criminal conduct of persons over whom one could exert no
control2. Criminal conduct was considered too unpredictable and thus not susceptible to
prevention by reasonable means. In light of the burden and expense involved in attempting to
prevent all but expected or imminent attacks, no such duty would be imposed on a landowner.3
The Virginia Supreme Court, however, has carved out numerous exceptions. One particular
exception is the duty that arises out of a special relationship between either the defendant and the
injured party or the defendant and the third party tortfeasor 4. Special relationships creating a
1 See, e.g. Wright v. Webb, 234 Va. 527, 531-33, 362 S.E.2d 919 (1987).
2 See, Dudas v. Glenwood Golf Club, 261 Va. 133, 540 S.E.2d 129 (2001); Delk v. Columbia/HCA Healthcare
Corp., 259 Va. 125, 523 S.E.2d 826 (2000).
3 Wright v. Webb, 234 Va. 527, 531-33, 362 S.E.2d 919 (1987).
4 Gupton v. Quicke, 247 Va. 362, 442 S.E.2d 658 (1994); Thompson v. Skate America, 261 Va. 121, 129-130, 540
S.E.2d 123, ___(2001); Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 523 S.E.2d 826 (2000); §314(A),
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duty of care have been found to arise out of the interactions between landlord and tenant 5,
common carrier and passenger 6, and innkeeper and guest7. More recently, under certain
circumstances, business invitees have also been extended a duty of care of business owners to
prevent third party attacks.8
In each of these areas the law evolved somewhat differently, yet the tests in each case
were relatively consistent. First, a special relationship had to be established, thus creating a duty
of care. Second, the plaintiff was required to show that the defendant either knew or should have
known that a criminal assault was foreseeable9. In defining foreseeability the court consistently
ruled that a history of previous criminal and assaultive activity at or near the location of the
attack in question was too nebulous to constitute notice.10 The risk of harm to a business invitee
was foreseeable only in cases in which a physical confrontation had already commenced, 11 a
Restatement (Second) of Torts (1965); §344 Restatement (Second) Torts (1965).
5 Yuzefovsky v. St. John's Wood Apts., 261 Va. 97, 102, 540 S.E.2d 134, 136-37 (2001); Klingbeil Management
Group, 233 Va. at 448, 357 S.E.2d at 201; Gulf Reston, Inc. v. Rogers, 215 Va. 155, 158, 207 S.E.2d 841, 844
(1974); See, §314(A), Restatement (Second) of Torts (1965); §344 Restatement (Second) Torts (1965).
6 Connell v. Chesapeake and Ohio Ry. Co., 93 Va. 44, 55, 24 S.E. 467, 468 (1896).
7 Kirby v. Moehlman, 182 Va. 876, 30 S.E.2d 548 (1944); Crosswhite v. Shelby Operating Corp, 182 Va. 713, 30
S.E.2d 673 (1944).
8 Gupton v. Quicke, 247 Va. 362, 442 S.E.2d 658 (1994); Thompson v. Skate America, 261 Va. 121, 129-130, 540
S.E.2d 123, ___(2001).
9 A.H. v. Rockingham Publishing Co., 255 Va. 216, 220, 495 S.E.2d 482, 485 (1998), Yuzefovsky v. St. John's Wood
Apts., 261 Va. 97, 102, 540 S.E.2d 134, 136-37 (2001); Klingbeil Management Group , 233 Va. at 448, 357 S.E.2d at201; Gulf Reston, Inc. v. Rogers, 215 Va. 155, 158, 207 S.E.2d 841, 844 (1974); Norfolk & W. R. Co. v. Birchfield,
105 Va. 809, 54 S.E. 879, (1906); Virginia R. & P. Co. v. McDemmick , 117 Va. 862, 870, 86 S.E. 744, 747 (1915);Connell v. Chesapeake and Ohio Ry. Co., 93 Va. 44, 55, 24 S.E. 467, 468 (1896) ; Gupton v. Quicke, 247 Va. 362,
442 S.E.2d 658 (1994); Thompson v. Skate America, 261 Va. 121, 129-130, 540 S.E.2d 123, ___(2001).
10 Wright v. Webb, 234 Va. 527, 531-33, 362 S.E.2d 919 (1987); Yuzefovsky v. St. John's Wood Apts., 261 Va. 97,
102, 540 S.E.2d 134, 136-37 (2001); Dudas v. Glenwood Golf Club, 261 Va. 133, 540 S.E.2d 129 (2001); Rosen v.
Red Roof Inns, Inc., 950 F. Supp. 156, 159 (E.D. Va. 1997); Godfrey v. Boddie-Noell Enterprises, Inc., 843 F. Supp.
114, 120 (E.D. Va. 1994); Cf, Thompson v. Skate America, 261 Va. 121, 129-130, 540 S.E.2d 123, ___(2001).
11 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879, (1906); Gupton v. Quicke, 247 Va. 362, 442 S.E.2d
658 (1994); Cf, Virginia R. & P. Co. v. McDemmick , 117 Va. 862, 870, 86 S.E. 744, 747 (1915).
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specific and identifiable person at the business was known to be a danger to other patrons, 12 or
the defendant proactively placed the injured party in harm’s way.13
Recently, however, the Virginia Supreme Court ruled in Taboada v. Daly Seven, Inc. that
an innkeeper has a legal duty to protect its guests from criminal assaults by third parties that
arises out of a history of criminal activity on and around the innkeeper’s premises. 14 The Court
in resolving the special relationship test ruled that vis-à-vis an innkeeper and its guests, the
innkeeper is analogous to a common carrier and guests to passengers. In so doing, the Court
expressly rejected the analogies of the relationships of a business/business invitee and landlord/
tenant.
15
In then resolving the issue of foreseeability, the Court relied upon a history of criminal
activity on or near the premises of an innkeeper as a predicate to liability of an innkeeper for
assault by strangers upon a registered guest. That history of criminal activity was, for the first
time in Virginia, ruled to provide notice to the innkeeper that an imminent risk of harm to its
guests existed. Thus arises the duty of the innkeeper to protect its guests from that risk of
harm.16 The previous test for notice, the existence of an imminent and present danger as well as
a specific risk of a precise harm, was found in Taboada to be satisfied if an attack is merely
12 Thompson v. Skate America, 261 Va. 121, 129-130, 540 S.E.2d 123, ___(2001).
13 Hines v. Garrett , 131 Va. 125, 108 S.E. 690 (1921); Houston v. Strickland, 184 Va. 994, 37 S.E.2d 64 (1946).
14 Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428 (2006). The case also involved a claim that Code of
Virginia §35.1-28 (Michie 1996) created a duty of care. The Virginia Supreme Court affirmed the demurrer to that
claim.
15 Taboada v. Daly Seven, Inc., 271 Va. 313, 325, 626 S.E.2d 428, ___ (2006).
16 “[I] t is reasonable for the law to impose upon the innkeeper, as on the common carrier, a duty to take reasonable
precautions to protect his guests against injury caused by the criminal conduct on the part other guests or strangers,
if the danger of injury by such conduct is known to the innkeeper or reasonably foreseeable.” Taboada v. Daly
Seven, Inc., 271 Va. 313, 325-26, 626 S.E.2d 428, ___ (2006).
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reasonably foreseeable.17 This duty, which is much broader than that in Section 314(A) of the
Restatement (Second) of Torts (1965), as well as Sections 315 and 344, had been previously
considered and expressly rejected in nearly all areas of special relationships, including Wright v.
Webb,18 which was previously the touchstone case in cases involving liability for criminal third
party acts.
Finally, once the duty and notice have been established the innkeeper is then constrained
under Taboada to exercise the “utmost diligence” to prevent injury to its guests, rather than
reasonable care.19
II. INNKEEPERS AND INVITEES
The duty that arises out of the special relationship between innkeepers and their guests is
not a new development. However, liability for latent defects in the premises, not the criminal
acts of third parties, was the most common point of contention.20 Such defects, once an
innkeeper realizes they exist, can be “easily removed” and corrected.21 Hence the issue of the
business owner’s control over the conditions that could lead to injury is again central to the
existence of a duty to the guest. The risk of assault, by comparison, is not so easily removed.22
Even the best efforts of an innkeeper at preventing assaults cannot provide the same resolution of
17 Taboada v. Daly Seven, Inc., 271 Va. 313, 325-26, 626 S.E.2d 428, ___ (2006).
18 Wright v. Webb, 234 Va. 527, 531-33, 362 S.E.2d 919 (1987).
19 Taboada v. Daly Seven, Inc., 271 Va. 313, 325-26, 626 S.E.2d 428, ___ (2006).
20 Crosswhite v. Shelby Operating Corp., 182 Va. 713, 715, 30 S.E. 2d 673, 674 (1944); Kirby v. Moehlman, 182
Va. 876, 30 S.E.2d 548 (1944).
21 Kirby v. Moehlman, 182 Va. 876, 887, 30 S.E.2d 548, ____ (1944); Crosswhite v. Shelby Operating Corp., 182
Va. 713, 715, 30 S.E. 2d 673, 674 (1944).
22 Wright v. Webb, 234 Va. 527, 533, 362 S.E.2d 919, 921 (1987).
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danger that removing a damaged rocking chair or reinforcing a screen would provide.23 These
efforts are more like the opportunity of a common carrier to remove or neutralize a violent and
threatening passenger or to make sure that a passenger is deposited at an appropriate location. 24
Furthermore, the condition, repair, and removal of defective rocking chairs, screens and other
structures of the inn is much like the maintenance, care, and inspection of the engines, cars, rails
and ties of a railroad.25 The Virginia Supreme Court did not impose liability on a railroad in the
instance of rails that could have an incipient defect, leading to sudden failure, but without any
way to determine where or when that failure would occur.26 While rails may fail from time to
time, the prediction of where and when was deemed an unfair burden to place upon the owner of
the rails, much like a criminal assault27. Again, it is the element of control and of ability to cure
the defect that either creates or defeats a duty to act on behalf of a guest or passenger.
1. Gupton v. Quicke
The Courts have applied, under the lesser duty of a business owner to an invitee, what is
effectively actual knowledge of the development of a situation that has imminent risk of harm to
a patron. For example, the risk of “imminent harm” was found where the employees of a café
allowed a violent and threatening patron, who had been in a confrontation with another patron, to
re-enter the café after being thrown out.28 Prior to his re-entry, the violent patron stated
repeatedly that he intended to assault the individual still within the café. Upon reentry, staying
true to his declaration, the third party directly approached the patron and attacked him. The
23 See, Id.
24 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879, (1906).
25 See, Chesapeake and Ohio R. Co. v. Baker, 149 Va. 54, 555, 141 S.E. 753(1927).
26 Id.
27 Wright 234 Va. at 533, 362 S.E.2d at 921.
28 Gupton v. Quicke, 247 Va. 362, 363, 442 S.E.2d 658 (1994).
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Virginia Supreme Court, in reversing the trial court’s dismissal on demurrer, stated that the
defendant’s knowledge of the stated intentions of the assailant created a duty to exercise
reasonable care to prevent the violent patron from injuring the other patron. 29 The violent
patron’s declaration amounted to notice that “imminent probability of harm” “was about to occur
inside the café. In doing so, the Court adopted the rationale of the Wright court.30 In essence, the
café had a duty to the victimized patron because the bouncer had control of the situation. The
bouncer not only knew of the altercation and the threats of violence against an invitee, but
additionally had control of the assailant himself.
2. Dudas v. Glenwood Golf Club, Inc.
During the same term that the Virginia Supreme Court decided Gupton, the Court also
decided Dudas v. Glenwood Golf Club, Inc.31 Dudas, a golfer, was robbed and shot in the leg
while playing on a golf course that had been plagued by repeated robberies of its guests. The
three most recent attacks, including one with gunfire, had occurred less than a month before Mr.
Dudas was injured. Dudas argued to the trial court that the history of attacks provided notice to
the golf course of the risk of injury to its guests at the hands of third parties. However, summary
judgment was awarded to the golf course and Dudas appealed.32
The Virginia Supreme Court stated the sole premise of Dudas’ theory of liability and
recovery was the forseeability of the assault. The Court stated, “we have stressed that whether a
duty of care arises from a special relationship between a business invitor and its invitee regarding
a criminal assault by a third party committed on the premises so as to qualify as an exception to
29 Id. citing Wright.
30 Gupton v. Quicke, 247 Va. 362, 363, 442 S.E.2d 658 (1994).
31 Dudas v. Glenwood Golf Club, 261 Va. 133, 540 S.E.2d 129 (2001).
32 Dudas v. Glenwood Golf Club, 261 Va. 133, 540 S.E.2d 129 (2001).
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the general rule of nonliability, involves a fact specific determination.”33 In making a fact
specific determination, the Court examined the similarity and chronological proximity of prior
crimes on the golf course. The Court declined to find that the prior criminal assaults on guests
imposed upon the golf course a duty to protect future guests from the risk of harm.34 In fact, the
Court declined to impose a duty to warn, citing the burden to the business in doing so. 35
Foreseeability, again, did not arise out of a general set of conditions of the location in question.
Forseeability was determined by a very specific threat that called for immediate intervention by
one with enough control over the situation to act upon it. 36 The Court reasoned that “the
magnitude of the burden of guarding against harm to the plaintiff and the consequences of
placing the burden on the business owner before imposing a duty to protect its invitees. . .
certainly, in the case of an 18 hole golf course, which is necessarily an extensive and open tract
of land, generally having at many points uncontrolled access from other property and public
ways, the cost of guarding against occasional criminal trespassers would be unduly great. Thus,
because the facts do not establish that there was an imminent probability of harm to Dudas from
a criminal assault by an unknown third party and it would have been unduly burdensome to
require Glenwood golf club to post a security force for his protection, we hold that Glenwood
golf course owned no duty to protect Dudas from the danger of injury from such an assault.” 37
The Court also declined a duty to warn because it would result in harm to reputation and loss of
trade.38
33 Dudas v. Glenwood Golf Club, 261 Va. 133, 540 S.E.2d 129 (2001).
34 Dudas, 261 Va. at 139, 540 S.E.2d at ___.
35 Dudas, 261 Va. at 139, 540 S.E.2d at ___.
36 Dudas, 261 Va. at 139, 540 S.E.2d at ___.
37 Id.
38 Id.
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3. Thompson v. Skate America, Inc.
Thompson was cited in Dudas as an example of a specific threat, rising to the level of
notice, to patrons.39 Thompson was injured by another youth who frequented Skate America and
was a known troublemaker. The youth had been thrown out of Skate America numerous times,
and had regularly demonstrated assaultive and violent behavior. Because Skate America was
aware of the very specific history of the individual, the Court reasoned that Skate America
assumed the risk in allowing this particular person to enter its premises. The Court found that
such an assumption imposed a duty to warn other patrons or to act to prevent the injury
sustained.
40
In contrast to Thompson, the golf course in Dudas attempted to exert control over
unknown third parties over the vast, open, and easily accessible areas of a golf course. The risk
of allowing the known attacker in Thompson into the relatively small area of Skate America was
considered and balanced.41
III. TABOADA v. DALY SEVEN, INC .
The plaintiff in Taboada was a traveler who had stopped for the night at a price-point
marketed motel in Roanoke, Virginia. The plaintiff checked in and then returned to his car to
retrieve his luggage at approximately 2:00 a.m. He was thereafter accosted in the motel parking
lot and shot eight times. When he filed suit against the innkeeper, he ultimately alleged the
following:
1. That he relied on representations that the motel was in a safe neighborhood when it
was in fact in a high crime area;
39 Dudas v. Glenwood Golf Club, 261 Va. 133, 540 S.E.2d 129 (2001).
40 Thompson v. Skate America, Inc., 261 Va. 121, 130 540 S.E.2d 123, 127 (2001).
41 Dudas, 261 Va. at 140-41, 540 S.E.2d at ___.
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2. That the innkeeper knew or should have known that the motel attracted assaultive
crimes by third parties;
3. That assaultive crimes were occurring, had occurred, and would continue to occur;
4. That the motel provided a known target for repeat criminal activity;
5. That the local police department had informed the motel’s management that its guests
were at risk for a specific imminent harm to their persons;
6. That the motel should have had guards on duty from 10:00 pm to 4:00 am, seven days
a week to protect its guests from the known risk of imminent harm from assaults; and
7. That it should have had cameras in place to identify criminal activity that might occur
near the front doors between 10:00 pm and 4:00 am42
The Roanoke Circuit Court, despite agreeing with the plaintiff that a special relationship
existed between the innkeeper and the guest, twice sustained the demurrers of the defendant
based upon lack of notice of imminent harm. As used in previous cases, such as Wright , the
business owner had to be on notice that crimes were actually under way that prompt intervention
would not prevent, but interrupt.43 The trial court ruled that the common law of Virginia did not
hold a history of criminal assaults to be specific or immediate enough to allow the case to
42 Taboada v. Daly Seven, Inc., 23 Cir. CL031075, 65 Va. Cir. 336 (2004).
43 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879 (1906).
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proceed.44 The trial court specifically cited Wright v. Webb,45 and applied it to determine that the
innkeeper did not have a duty to protect the guest from the intentional criminal assault of a non-
employee. The allegations were deficient because the innkeeper claimed not to have known that
“criminal assaults against persons were occurring or about to occur on the premises which
indicated that in imminent probability of harm and that such knowledge constituted notice of a
specify danger just prior to the assault.”
The trial court’s written opinion sustaining the first demurrer provided the plaintiff with a
check list of facts that, if alleged, would have stated a common law cause of action. In order to
state a viable claim, the plaintiff was required to set forth facts from which the court could at
least infer that the defendant:
• [S] hould have foreseen the type of criminal activity of which Taboada
was a victim, or was, or should have been, aware of a specific threat, or of
sufficiently similar and recent criminal assaults committed on the hotel's property,or of sufficiently similar and recent criminal assaults committed at the Holiday
Inn Express, constituting an imminent probability of harm.46(emphasis added).
Despite following the format provided by the trial court, the plaintiff’s Amended Motion
for Judgment also lacked specificity. Rather than reciting specific facts regarding the assault
which left the plaintiff injured, he provided a general history of a wide range of criminal activity
and broad and conclusory statements including, “criminal assaults against employees and guests
44 Taboada v. Daly Seven, Inc., 23 Cir. CL031075, 65 Va. Cir. 336 (2004)(“The allegation that the hotel knew or
should have known that its guests were at risk for such attacks is a bare conclusion, bereft of any assertion of facts
from which the court could draw the inferences in his favor.” Also “Nor are there any factual assertions from whichI can draw the inference that Daly Seven knew that there was any likelihood that guests were in imminent danger of
assault.”).
45 Taboada v. Daly Seven, Inc., 23 Cir. CL031075, 65 Va. Cir. 336 (2004) “The Court developed this rule by
applying its historically higher “common carrier” duty in the business invitor/invitee context, thus signaling that thisstandard is appropriate for comparable special relationships, including that of innkeeper and guest. Wright , 234 Va.
at 533.
46 Taboada v. Daly Seven, Inc., 23 Cir. CL031075, 65 Va. Cir. 336 (2004).
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were occurring,”47 following the form of the previous cases but ignoring the substance therein.
The trial court again sustained the demurrer of the defendant, finding a lack of notice.
The Virginia Supreme Court disagreed, overturned the demurrer to the common law claim, and
remanded the matter for trial on the merits.48
In summary, the elements of the decision in Taboada are as follow:
1. Daly Seven, Inc., as an innkeeper, had a special relationship with Taboada, but
that relationship did not make it the insurer of his safety49; and
2. As opposed to an invitee or a tenant, a guest is owed the identical higher duty of
care against attack by third parties that a common carrier owes a passenger 50; and
3. The guest/innkeeper relationship is more like that of a passenger/common carrier
than the relationships of invitees and tenants to businesses and landlords51; and
4. Because a guest of an inn entrusts his safety to the innkeeper and has little ability
to control his environment, the law imposes on the innkeeper a duty to take reasonable
precautions against conduct that is known and foreseeable52; and
5. Given the nature of the special relationship between the innkeeper and the guest,
the law imposes on the innkeeper the same potentially elevated duty of utmost care and diligence
to protect a guest from the danger of injury caused by the criminal conduct of a third party on theinnkeeper’s property53; and
6 For the purposes of determining this duty, “notice of a specific danger” equateswith the concept of “reasonably foreseeable and not with the degree of knowledge of criminal
assaults that indicate an ‘imminent probability of harm.’’54
47 See, Yuzefovsky v. St. John's Wood Apts., 261 Va. 97, 109, 540 S.E.2d 134, 136-37 (2001).
48 Taboada v. Daly Seven, Inc., 271 Va. 313, 323, 626 S.E.2d 428, ___ (2006).
49 Id ., 271 Va. at 326, 626 S.E.2d at ___.
50 Id ., 271 Va. at 326, 626 S.E.2d at ___.
51 Id ., 271 Va. At 326, 626 S.E.2d at ___.
52 Id ., 271 Va. At 325, 626 S.E.2d at ___.
53 Id ., 271 Va. At 326, 626 S.E.2d at ___.
54 Id ., 271 Va. At 326, 626 S.E.2d at ___.
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To a certain extent the Court narrowed the decision by stating that it was “not retreating
from the holding in Wright ,” 55 but was in fact limiting its consideration only to the whether the
facts alleged were sufficient to survive the demurrer. 56
The intended or unintended result, however, is that innkeepers now appear to be held to a
higher standard of care than that applied to common carriers.57 Innkeepers must now take pre-
emptive steps to assure the safety of their guests against the criminal attacks of strangers at any
point within their property, a duty which has never been imposed upon common carriers as non-
contemporaneous criminal activity has not previously been found to place a carrier on notice of
an imminent harm to a passenger.
58
In addition, once the plaintiff alleges a history of local criminal activity, the innkeeper
can be found to have a duty that, arguably, even the slightest negligence would violate. These
new burdens on innkeepers depart dramatically from the previously relied upon line of cases,
most notably Wright v. Webb.59 Thus, the Court has created a dual track in Virginia law
regarding land and business owners’ liability regarding criminal activity against their customers.
The factual allegations made by the plaintiff in Taboada were broad, vague and ignored
55 Id ., 271 Va. At 326, 626 S.E.2d at ___.
56 Id ., 271 Va. At 326, 626 S.E.2d at ___.
57 “Given the nature of the special relationship between an innkeeper and a guest, we hold that it imposes on the
innkeeper the same potential elevated duty of ‘utmost care and diligence’ to protect a guest from the danger of
injury caused by the criminal conduct of a third person on the innkeeper’s property. Id ., 271 Va. at 326, 626 S.E.2d
at ___.
58 Hines v. Garrett , 131 Va. 125, 108 S.E. 690 (1921), which was cited in Taboada, did not establish notice based
on a history of the area, but relied rather on the railroad’s failure to provide proper carriage to a designated station.
This is discussed in greater detail below.
59 Webb, 234 Va. 527, 362 S.E.2d 919 (1987)
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contextual application of terms used therein. As a result, the boundaries of what constitutes a
history sufficient to be deemed notice to a property owner remain undefined.60
IV. WRIGHT v. WEBB
Wright v. Webb is the seminal case involving liability of land and business owners for the
criminal attacks on guests by third parties. The case arose out of the attack of a business invitee
in a parking lot shared by a motel and a dinner theater. The plaintiff, Webb, alleged that the
owners of the parking lot were negligent for failing to install adequate exterior lighting, fencing,
security cameras, perimeter patrols and speed bumps to protect business invitees against
foreseeable criminal attacks. The plaintiff further alleged that the area had a history of larcenies
(at least one or two per month), prior physical assaults, and a double murder at a neighboring
golf course.
The attack which prompted the lawsuit occurred in the shared parking lot of a commonly
owned motel and dinner theater. The plaintiff entered the motel to ask directions and upon
leaving the motel was attacked on her way to the dinner theater.
The plaintiff urged the Court to adopt the Restatement (Second) of Torts, § 314(A)
(1965) and to thereby impose a duty on the innkeeper to protect her from criminal assaults. She
sought to establish that she and innkeeper had the special relationship of business and invitee,
and thus that the business was under a duty to protect her, an invitee, from harm by third
parties.61 The Court refused to impose on the landowner or business the burden of acting as a
60 Taboada v. Daly Seven, Inc., 23 Cir. CL031075, 65 Va. Cir. 336 (2004).
61 Wright v. Webb, 234 Va. 527, 530, 362 S.E.2d 919, ___ (1987). The Court had been asked to consider the
adoption of §314(A) previously, and had declined to do so. Klingbeil Management Group Co. v. Vito, 233 Va. 445,
447, 357 S.E.2d 200, 201 (1987) and Gulf Reston, Inc. v. Rogers, 215 Va. 155, 158, 207 S.E.2d 841, 844 (1974).
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“policeman”. To arrive at such a conclusion, the Court discussed the magnitude of the burden to
anticipate and to guard against criminal assaultive behavior.62
Webb cited the same common carrier cases that form the basis of the majority opinion in
Taboada.63 She asked the Virginia Supreme Court to apply that level of care to business owners
to protect their patrons from the criminal acts of third parties. The Virginia Supreme Court
rejected the plaintiff’s analogy.64
Webb asked the Court to rule that the historical level of criminal activity around the Lake
Wright complex rose to the level of imminent risk of harm to business invitees and thus created a
duty upon the owner to prevent assaults. However, the Court focused upon the impossibility of
anticipating when a criminal attack would occur. Consequently, the Court specifically declined
plaintiff’s request that it find that previous criminal activity, without more, made a criminal
attack foreseeable.65
V. THE RESTATEMENT (SECOND) OF TORTS
The Restatement (Second) of Torts, Section 314(A) and Section 344, have been discussed
by the Virginia Supreme Court in the context of the issue of liability for acts of third parties:
Section 314(A) has been examined numerous times by the Virginia Supreme Court, but has been
expressly declined. The section provides in relevant part that “a common carrier is under a duty
to its passengers to take reasonable actions (a) to protect them against unreasonable risk of
physical harm, and (b) to give them first aid after it knows or had reason to know that they are ill
or injured, and to care for them until they can be cared for by others (2) An innkeeper is under a
62 Wright v. Webb, 234 Va. 527, 530-31, 362 S.E.2d 919, ___ (1987).
63 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879, (1906); Virginia R. & P. Co. v. McDemmick , 117
Va. 862, 870, 86 S.E. 744, 747 (1915); Hines v. Garrett , 131 Va. 125, 108 S.E. 690 (1921).
64 Wright v. Webb, 234 Va. 527, 530-31, 362 S.E.2d 919, ___ (1987).
65 Wright v. Webb, 234 Va. 527, 530-31, 362 S.E.2d 919, ___ (1987).
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similar duty to its guests. (3) A possessor of land who holds it open to the public is under a
similar duty to members of the public who enter in response to his invitation. When the Virginia
Supreme Court addressed this language in Wright v. Webb, it reasoned, “in ordinary
circumstances, acts of assaultive criminal behavior cannot reasonably be foreseen.” 66 The Court
also addressed the very practical matter of crime prevention, stating that the best deterrent to
criminal acts of violence is the posting of a security force in the area of potential assaults.
However, in most cases the cost would be prohibitive and unfair to impose upon the invitor,
who, like the invitee, was an innocent victim of the criminal third party.67
Section 344 of the Restatement was referred to in the concurrence to Wright .
68
It
provides in pertinent part that “a possessor of land who holds it open to the public for entry for
his business purposes is subject to liability to members of the public while they are upon the land
for such a purpose, for physical harm caused by the accidental negligent or intentionally harmful
acts of third persons or animals and by failure of the possessor to exercise reasonable care to (a)
discover that such acts are being done or are likely to be done, or (b) give a warning adequate to
enable the visitors to avoid the harm, or otherwise to protect them against it.” The first comment
to this section provides that the rule had its origin in cases of carriers who failed to protect their
passengers against the acts of third persons. As it has developed, however, it no longer is limited
to carriers, and it applies to other businesses as well. Thus, without expressly stating it, the rule
appears to create a special relationship between a business and an invitee, but does not require
the exercise of utmost diligence that arises under Taboada. In the comments, the drafters of the
Restatement did offer a limitation. “Since the possessor is not an insurer of the visitor’s safety,
66 Wright v. Webb, 234 Va. 527, 531, 362 S.E.2d 919, ___ (1987).
67 234 Va. 527, 531, 362 S.E.2d 919, ___ (1987).
68 234 Va. 527, 534, 362 S.E.2d 919, ___ (1987).
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he is ordinarily under no duty to exercise any care until he knows or has reason to know that the
acts of the third person are occurring, or are about to occur. He may, however, know or have
reason to know, from past experience, that there is a likelihood of conduct on the part of third
persons in general which is likely to endanger the safety of the visitor, even though he has no
reason to expect it on the part of any particular individual.” Justice Poff also included a list of
jurisdictions that have adopted and those that have declined §344 of the Restatement (Second) of
Torts. 69Despite its similarity to the ruling in Taboada, §344 of the Restatement was never
adopted by the Virginia Supreme Court, and, more to the point, was expressly rejected due to the
financial burdens of insuring the safety of invitees against third party assaults.
The line of third party assault cases that arose after Wright bear out that the tests of the
Restatement were not being ignored but expressly rejected. It is impossible to reconcile the
Wright court’s treatment of Section 344 of the Restatement with Gulf-Reston,70 Yuzefovsky71 ,
Wright,72 Dudas73 and Klingbeil .74 Each of those cases, all with claims of notice predicated upon
a history of criminal and assaultive activity on or near the premises, specifically reject the
application of this test for invitees. Even assuming the existence special relationships, a
foreseeable risk of harm to the plaintiff was only established by contemporaneous conduct. The
Restatement requires only reasonable notice, which was decidedly insufficient to convince the
69 Id.
70 Gulf Reston, Inc. v. Rogers, 215 Va. 155, 158, 207 S.E.2d 841, 844 (1974).
71 Yuzefovsky v. St. John's Wood Apts., 261 Va. 97, 106, 540 S.E.2d 134, ___ (2001).
72 Wright v. Webb, 234 Va. 527, 530, 362 S.E.2d 919, 921 (1987).
73 Dudas v. Glenwood Golf Club, 261 Va. 133, 540 S.E.2d 129 (2001).
74 Klingbeil Management Group Co. v. Vito, 233 Va. 445, 448, 357 S.E.2d 200, 201(1987).
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Virginia Supreme Court that the plaintiff had stated a cause of action under Virginia’s common
law.75
The same is true of the test outlined in Section 314(A) of the Restatement. Unlike
Section 344, which was only mentioned in the concurrence, Section 314(A) was specifically
cited in Wright and rejected in the body of the opinion.76 That rejection of the Restatement was
based upon analysis of the same common carrier cases relied upon in Taboada. The most
notable of those are Birchfield, and McDemmick.77 In Wright, the Court stated “in both
Birchfield and McDemmick , we held that common carriers could be held liable for negligence in
failing to intervene to protect a passenger from another passenger’s assault if an agent of the
carrier was close enough to intervene.” 78 (emphasis added). The Court also stated, “implicit in
all three of these common carrier cases is the element of notice of a specific danger just prior to
the assault .”79 The insufficiency of foreseeability as opposed to imminence was the reason the
Wright court declined the invitation to adopt section 314(A) of the Restatement (Second) of
Torts.
VI. HAS WRIGHT BEEN ABANDONED?
1. Treatment of Wright by the Federal Courts
Wright has been relied upon in two cases in the Eastern Division of the United
States District Court, Rosen v. Red Roof Inns80 and Godfrey v. Boddie-Noell
75 Wright, 234 Va. 527, 536, 362 S.E.2d 919, 921.
76 Id.
77 Taboada v. Daly Seven, Inc., 271 Va. 313, 325, 626 S.E.2d 428, ___ (2006).
78 Wright v. Webb, 234 Va. 527, 533, 362 S.E.2d 919, 921 (1987).
79 234 Va. 527, 533, 362 S.E.2d 919, 921 (1987).
80 Rosen v. Red Roof Inns, Inc., 950 F. Supp. 156, 159 (E.D. Va. 1997).
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Enterprises, Inc.81 In both of these cases, the Virginia Supreme Court’s rejection of the tests
found in the Restatement (Second) of Torts (1965) was cited and incorporated into the courts’
rulings.82
A. Rosen v. Red Roof Inns
The facts in Rosen were strikingly similar to those in Taboada. In Rosen, the guest, Ms.
Rosen, was attacked, while at her car, shortly after checking into the Red Roof Inn. According
to the record, numerous assaults had occurred at the Red Roof Inn and its surrounding area.
These included two robberies of guests and at least one employee at gunpoint approximately four
months prior to the attack on Ms. Rosen. In addition, while security guards were normally
stationed at the motel, there were none working on the night of the attack. No surveillance
cameras were in use to monitor the interior or exterior of the motel. 83 The plaintiff in Rosen also
attempted to persuade the Court that because the Red Roof Inn was located a high crime area, it
provided a climate for assaultive crimes.84
The District Court analyzed the Virginia Supreme Court’s reasoning in Wright and
determined that even under an analysis that adopts the Restatement standard, the rule was still
based upon an imminent probability of harm standard.85 In defining “imminent probability,” the
district court relied upon Gupton v. Quick 86 in which the employees allowed a patron to reenter
an establishment after making specific threats against another patron who was still inside. The
81 Godfrey v. Boddie-Noell Enterprises, Inc., 843 F. Supp. 114, 120 (E.D. Va. 1994).
82
Godfrey v. Boddie-Noell Enterprises, 843 F. Supp. 114, 120 (E.D. Va. 1994), Rosen v. Red Roof Inns, Inc., 950 F.Supp. 156, 159 (E.D. Va. 1997).
83 950 F. Supp. at 158.
84 950 F. Supp. at 161.
85 950 F. Supp. at 160.
86 247 Va. 362, 442 S.E. 2d 658 (1994).
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Court stated that Rosen was unable to provide evidence that the Red Roof Inn knew of prior
interaction between Rosen and her assailants, such as in Gupton, nor that there was reason to
believe at any given time that potential assailants were on the premises. In short, there was no
evidence of a specific imminent or currently occurring attack on a guest, and thus no opportunity
for the Red Roof Inn to intervene and prevent the injury.87
B. Godfrey v. Boddie-Noell Enterprises
The issue of creation of an atmosphere that attracted assaultive crimes was also discussed
in depth in Godfrey v. Boddie-Noell Enterprises.88 Boddie-Noell owned a Hardee’s restaurant
located in Norfolk that was reputed to have significant after hours criminal activity, assaults, and
robberies. Mr. Godfrey was attacked in the Hardee’s parking lot and brought an action against
Boddie-Noell. Godfrey alleged that because the restaurant was located in a high crime area, it
attracted or provided a climate for assaultive crimes. 89 In addressing the allegations, the Godfrey
Court stated that merely being open at a particular time, in a particular part of town with a
reputation for crime, was not tantamount to providing such a climate.90 Additionally, the Court
cited a Tennessee case that summarized its concerns when is stated that the operation of a
business in a high crime area should not be made tantamount to negligence per se. “Landowners
in high crime areas ought not to be forced out of the area or out of business altogether by an
imposition of liability to the victims of violent crimes which the police have been unable to
87 950 F. Supp. at 160. Cf, Gupton v. Quicke, 247 Va. 362, 442 S.E. 2d 658 (1994).
88 Godfrey v. Boddie-Noell Enterprises, 843 F. Supp. 114, 120 (E.D. Va. 1994).
89 843 F. Supp. 114, 118-19 (E.D. Va. 1994).
90 843 F. Supp. 114, 122-23 (E.D. Va. 1994).
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prevent.”91 The imposition of such liability would be the equivalent of declaring the area a
condemned community.”92
2. Landlord/Tenant Cases, Wright, and the Restatement
The Virginia Supreme Court has cited, but not adopted the Restatement of Torts in
determining whether a landlord has a duty to protect its tenants from criminal assaults by third
parties.93 In Gulf Reston, Inc. v. Rogers94 the Court rejected the contention that a special
relationship existed between a landlord and its tenant.95 The plaintiff claimed that the landlord
was negligent for not preventing her rape in the apartment complex.96 The Court ruled that the
plaintiff did not have a legal claim and in doing so rejected the Restatement of Torts. The Court
referred to the Restatement only as contrast for its treatment of special relationships.97
3. Yuzefovsky v. St. John's Wood Apts.
In Yuzefovsky v. St. John's Wood Apartments a tenant brought suit after being robbed and
shot outside his apartment. He had lived in the apartment for about a year, but claimed that the
landlord had misinformed him of a history of violent assaults in the neighborhood. The tenant
91 843 F. Supp. 114, 122 (E.D. Va. 1994)(citing Nola M. v. Univ. of Southern California, 16 Cal App.4th 421,___, 20
Cal. Rptr.2d 97, 108 (1993).
92 843 F. Supp. 114, 121 (E.D. Va. 1994)(citing Cornprobst , 528 S.W.2d at 196(1975)); 950 F. Supp. at 161 (E.D.
Va. 1997).
93
Godfrey v. Boddie-Noell Enterprises, 843 F. Supp. 114, 120 (E.D. Va. 1994), Rosen v. Red Roof Inns, Inc., 950 F.Supp. 156, 159 (E.D. Va. 1997).
94 Gulf Reston, Inc. v. Rogers, 215 Va. 155, 158, 207 S.E.2d 841, 844 (1974).
95 215 Va. at 157, 207 S.E.2d at 844.
96 Klingbeil Management Group Co. v. Vito, 233 Va. 445, 448, 357 S.E.2d 200, 201(1987).
97 Id.
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sought to establish that a special relationship, like that described in the Restatement of Torts, did
in fact exist98 and that a duty of care arose therefrom.99
The Yuzefovsky court assumed without deciding that a special relationship did exist
between the landlord and tenant.100 Thus the only issue addressed and decided by the court was
whether that relationship would give rise to a duty of care on the part of the landlord.101
Drawing on Wright , the court stated that the duty of a business owner to an invitee was
found to be coextensive with the duty of a landlord to its tenant with regard to risk of injury at
the hands of third party criminals.102 That standard, however, was described without citation to
authority, and, in fact, Section 314 (A) of the Restatement (Second) of Torts (1965), as stated in
Gulf Reston and Klingbeil , does not expressly include landlord/tenant in the list of special
relationships. Thus the issue of the relationship remained unsettled in those two cases, and was
not resolved by the court in Yuzefovsky. Essentially, the Court in Yuzefovsky ruled that if a
special relationship existed between a landlord and a tenant, then knowledge of imminent
probability of an assault could create a duty to protect the tenant.103 In that regard, Yuzefovsky
placed the cart before the horse.
The difficulty is that the special relationship between a common carrier and passenger is
not a notice-based relationship. The relationship is created when the passenger boards the
98 Yuzefovsky v. St. John's Wood Apts., 261 Va. 97, 540 S.E.2d 134 (2001).
99 261 Va. at 108, 540 S.E.2d at _____.
100 261 Va. at 109, 540 S.E.2d at _____.
101 261 Va. at 109, 540 S.E.2d at _____.
102 261 Va. at 109, 540 S.E.2d at _____.
103 261 Va. at 109, 540 S.E.2d at _____. (Assuming, without deciding, that the facts and circumstances as alleged in
the second amended motion for judgment establish a special relationship between St. John’s Wood and Yuzefovsky,
we must also consider whether those facts and circumstance are also sufficient to establish that St. John’s Wood had
a duty of care to warn and or protect Yuzefovsky against the danger of harm from the criminal conduct of a third
party (emphasis added)).
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conveyance in question and surrenders the ability to protect himself from the risks associated
with public transportation.104
VII. THE DUTY OF CARE
While common carriers have long been held to very high standards of conduct, especially
regarding the safe transportation and deposit of passengers at their selected destinations, they
have never been declared by a Virginia court to be the insurers against all criminal acts of third
parties.105 The basis for the high standards of care imposed upon a carrier arises out of a
passenger on a common carrier relinquishing control over his own self protection once on board
a train,
106
a trolley,
107
a ferry,
108
a bus
109
a jitney
110
or a taxi.
111
At no time has the Virginia
Supreme Court ruled that a common carrier was liable for failing to prevent a non-specific risk of
harm to a passenger at the hands of third parties. Indeed, implicit in every case in which notice
of potential attack has been an issue, the events were such that notice was obtained as the
104 Connell v. Chesapeake and Ohio Ry. Co., 93 Va. 44, 55, 24 S.E. 467, 468 (1896); See also, City of Portsmouth
v. Madrey, 168 Va. 517, 526, 191 S.E. 595, ___ (1937).
105 Connell v. Chesapeake and Ohio Ry. Co., 93 Va. 44, 55, 24 S.E. 467, 468 (1896).
106 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879, (1906).
107 Richmond-Ashland Railway Co. v. Jackson , 157 Va. 628, 162 S.E. 18 (1932) “Of course passengers assume all
risks which are necessarily incidental to their journeys. Utmost care means no more than every care which is
practicable by carriers engaged in the transportation of their passengers.” Id ., 157 Va. at 641, 162 S.E. at ___.
108 Chesapeake Ferry Co. V. Cummings, 158 Va. 33, 164 S.E. 281 (1932); City of Portsmouth v. Madrey, 168 Va.
517, 523-24, 191 S.E. 595 (1937). “The carrier must use the highest degree of practical care for the safety of its
passengers, but it is not an insurer. Norfolk Southern R. Co. v. Tomlinson, 116 Va. 153, 81 S.E. 89 (1914). Nor is it
the guardian of its passengers. Burr v. Virginia Ry. & Pwr. Co., 151 Va. 934, 145 S.E. 833 (1928)”
109 Houston v. Strickland, 184 Va. 994, 37 S.E.2d 64 (1946).
110 Riggsby v. Tritton, 143 Va. 903, 129 S.E. 493 (1925).
111 See Carlton v. Boudar, 118 Va. 521, 88 S.E. 174 (1916).
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unfolding event. The duty was to intervene and stop the occurring assault, not prevent it from
commencing.112
1. Virginia R. & P. Co. v. McDemmick
In McDemmick ,113 a streetcar conductor detained a passenger who had refused to
extinguish a cigar. In the midst of that detention, and unrelated to the disturbance on board, the
trolley had come off of the overhead power cable, requiring the attention of the conductor. The
conductor asked another passenger to restrain the cigar smoker while he momentarily left the
streetcar to reconnect the trolley. Upon the conductor’s return to the streetcar the restrained
passenger lunged and kicked at the conductor, but missed and struck McDemmick instead.
114
Demmick claimed injuries, and that the conductor should have been on notice of the violent
nature of the unruly passenger.
A refused jury instruction was the principal issue. The instruction read, “the court
instructs the jury that if you believe from the evidence that the injury, if any, to the plaintiff was
unexpected and inflicted at a time when the servants of the defendant were unable to protect him
therefrom, you must find for the defendant”115 (emphasis added). The refusal to read the
instruction was deemed reversible error. 116 That test contains two parts: An expectation of an
attack and the ability to intervene. The immediate history of the presence of a specific unruly
passenger who was being held for arrest did not necessarily create the expectation of that the
112
Virginia R. & P. Co. v. McDemmick , 117 Va. 862, 870, 86 S.E. 744, 747 (1915); Connell v. Chesapeake and Ohio Ry. Co., 93 Va. 44, 55, 24 S.E. 467, 468 (1896).
113 McDemmick , 117 Va. 862, 86 S.E 744 (1915).
114 McDemmick, 117 Va. at 866, 86 S.E. at ___.
115 McDemmick, 117 Va. at 867-68, 86 S.E. at ___.
116 McDemmick, 117 Va. at 867-68, 86 S.E. at ___.
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attack would occur, 117 and being physically present and in the center of the disturbance did not
necessarily rise to the level of being able to intervene.118 Thus the duty was held to be one of
intervention, not prevention. 119 And while it remained an issue for the finder of fact, the
gravamen of the ruling was whether the carrier had the ability to control the events in question.
Indeed, the assailant was in the custody of the agents of the carrier at the time of the attack, and
still the question of ability to protect the plaintiff remained open. The plain meaning of the words
of the refused instruction, under those facts, did not leave open the issue of reasonable notice of
potential escalation of the conflict: the test was whether the carrier knew it would happen.
2. Norfolk & W. R. Co. v. Birchfield
By comparison, Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879 (1906)
illustrates the situation in which an unfolding drama does place a common carrier on notice of
imminent violence or misconduct that may be reasonably prevented. Mr. Birchfield was
assaulted for refusing to put out his pipe while on board a train owned and operated by the
defendant. Despite the ongoing and ever escalating nature of the altercation, the conductor
appeared to ignore it as he continued to collect tickets near the center of the car. 120 The
developing argument, however, was obvious enough that it drew the attention of passengers as
well as another railroad officer riding in the back of the train car. 121 The Court found that if the
preliminary argument was conspicuous enough to draw the attention of the passengers and the
117 117 Va. at 869, 86 S.E. at ___.
118 117 Va. at 869, 86 S.E. at ___.
119 McDemmick, 117 Va. at 867-68, 86 S.E. at ___.
120 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879 (1906).
121 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879 (1906).
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more distant officer, then it created an expectation that an assault was imminent.122 Since the
conductor continued to collect tickets rather than intervening and taking the necessary steps to
prevent the developing fight, the Court deemed that the railroad had breached its duty to
Birchfield to prevent the criminal assault.123
3. Chesapeake and Ohio R. Co. v. Hibbs
The Virginia Supreme Court has also addressed the issue of foreseeability in relation to
the duty of care to a passenger. Upon attempting to enter the train lavatory, a passenger had a
finger accidentally amputated by a heavy door that slammed shut.124 The accident was the result
of the train lurching on the tracks, in combination with the failed installation of a “door check”,
which would have prevented the door from slamming. After reciting the duty of utmost care and
diligence, the Court reversed a judgment for the passenger. Despite the passenger’s evidence
that half the train cars in Virginia, and seventy-five percent of the train cars in the region were
equipped with door checks, along with the fact that the door check most likely would have
prevented his injury, the Court found no duty to install the devices.125 The railroad was not
expected to anticipate every means by which a passenger could be injured, or that it was
foreseeable that a slamming door would amputate the passenger’s finger .126
4. Additional Liability of Common Carriers
The “utmost care and diligence” required of common carriers, and liability for the
“slightest negligence which human care, skill and foresight could have foreseen and guarded
122 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879 (1906).
123 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879 (1906).
124 Chesapeake and Ohio R. Co. v. Hibbs, 142 Va. 96, 128 S.E. 538 (1925).
125 Id ., 142 Va. at 104, 128 S.E. ___.
126See 142 Va. at 102, 128 S.E. ___.
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against” was tempered by the requirement of the opportunity for intervention and in the context
of the ability to exert control over the actors involved.127 Thus the duty of care was developed
and applied regarding the safe operation of equipment and the safe transportation of passengers
to their desired destinations.128 The McDemmick Court stated, “as was said by this court in
Connell v. Chesapeake and Ohio Ry. Co., 93 Va. 55, 24 S. E. 468, 32 L. R. A. 792, 57 Am. St.
Rep. 786, reaffirming the law as stated in Farish & Co. v. Reigle, 11 Gratt. 697, 62 Am. Dec.
666: ‘Railways engaged as carriers of passengers, while not insurers against all injuries except
by the act of God or of public enemies, as are the carriers of goods, are yet bound to carry safely
those whom they take into their coaches in so far as human care and foresight can
provide.’”(emphasis added).
Thus liability was only extended in those circumstances in which the passengers were
within the limited confines of the vehicles operated by the carrier. It is within these confines that
a common carrier was able to exercise control on the passengers, and thus to protect one from the
wrongful acts of another. Only when a passenger is wrongfully ejected from a conveyance is a
carrier liable for acts of third parties, and that liability arises out of the wrongful discharge of the
passenger from a place of safety to a place of danger. Hines v. Garrett is such a case.
5. Hines v. Garrett
127 Hines v. Garrett , 131 Va. 125, 108 S.E. 690 (1921). Hines, while it occurred off of the conveyance in question,
took place after the carrier failed to (a) deliver the plaintiff to her intended terminus and (b) arguably ejected her
from the train almost a mile from her station at near nightfall. Notice of the “neighborhood” was deemed to be of no
consequence in that decision.
128 Yellow Cab Co. v. Eden, 178 Va. 325, 337-38, 16 S.E. 625 (1941); Hines v. Garrett , 131 Va. 125, 108 S.E. 690
(1921).
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Julia Garrett, a nineteen year old woman, was let off of a train one-eighth of a mile past
her intended station. The train had failed to stop at Seminary Station, the stop for which she held
a ticket. Garrett approached the conductor and had the train stopped about one-sixth of a mile
past her stop. Her testimony revealed that she became anxious, and the conductor became
aggravated with her. The conductor informed Garrett that she would have to go all the way to
the next station and then come back if she did not get off the train immediately. Garrett,
reluctantly decided to walk to her station and left the train at or just after nightfall.
A ravine, known by the names “Hoboes’ Hollow”, “Tramps’ Hollow”, and “Tramps’
Den” ran along the track in the area where she was let off the train. Tragically, Garrett was
accosted and “ravished” twice as she walked through the hollow from the train toward the
station. The hollow was described as “infested by hoboes, tramps and questionable
characters.”129 Garrett sued the railroad and was awarded a judgment. Her argument, however,
alleged that she had been improperly ejected from the train and therefore she retained her status
as a passenger even though she was on foot outside the car.130 Additionally, she argued that the
railroad had breached its duty to her by failing to deliver her to her station, as contracted. 131 On
appeal, the railroad sought to have the judgment overturned. The railroad denied that Garrett had
been wrongfully ejected from the train and as such she had forfeited her status as a passenger.
Thus, any duty the railroad owed to her had been forfeited.132 The court agreed, stating that such
a defense was sufficient if the proposition upon which it rested was supported by the facts.133
129 131 Va. at 132, 108 S.E. at ___.
130 131 Va. at 135-36, 108 S.E. at ___.
131 131 Va. at 134-35, 108 S.E. at ___.
132 Id.
133 131 Va. at 133, 108 S.E. at ___.
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The Court determined that the salient issue of the matter was that railroad owed a duty to
its passenger to provide her with a reasonable opportunity to disembark at her designated
station.134 Clearly, the court ruled, the railroad, had failed in that duty. The next step of the
analysis was to determine whether Ms. Garrett was coerced or persuaded to leave the train. If so,
the court ruled, then she did not relinquish her status as a passenger. In that instance the carrier
acted at its own peril.135 The carrier’s failure to deliver the passenger to the contracted station
combined with a wrongful discharge from the conveyance, matters over which the plaintiff had
no control, and over which the railroad had complete control, created liability for whatever befell
the passenger at the place of wrongful discharge, without regard to notice of potential dangers at
that place.136
Although notice of the character of the area at which Julia Garret was discharged was
discussed, the Court specifically stated that it was of no consequence in the decision.137
Furthermore, the Court stated that Garrett was not required to establish that the railroad had
knowledge of the nature of Hoboes’ Hollow, making notice of the dangerous conditions of the
Hollow irrelevant to the Court’s holding.138 It was the positive act of wrongfully ejecting the
passenger from the train at a place other than a scheduled stop that would create liability for the
carrier, the determination of which required the remand of the matter to the trial court.139
134 131 Va. at. at 133, 108 S.E. at ___.
135 131 Va. at 138-39, 108 S.E. at ___.
136 Hines v. Garrett, 131 Va. 125, 131, 108 S.E. 690, ___ (1921).
137 131 Va. at 138-39, 108 S.E. at ___.
138 131 Va. at 138-39, 108 S.E. at ___.
139 131 Va. at 134-35, 108 S.E. at ___.
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The above referenced theory was not by any means a novel one. It had been previously
discussed in regard to ejecting sick, intoxicated, or female passengers from common carriers. 140
The issue was never one of notice of a specific danger, but the infirmity and helplessness, even if
self induced, of the ejected passenger and the duty of the carrier not to eject such a person. 141
Unlike the failure to intervene in a developing fracas as in Birchfield and McDemmick, in Hines
the railroad failed in its duty to provide contracted-for transportation to the designated location.
Furthermore, if the carrier wrongfully ejected Julia Garrett from its train, then it would be liable
for whatever injury ultimately befell her, reasonably anticipated or not. The carrier is indeed
“bound to know the character of the place at which it wrongfully discharges [a passenger] and if
the defendant wrongfully required the plaintiff to get off at a dangerous place without knowing it,
it did so at its own peril”142 (emphasis added). Indeed, the issue of whether Julia Garrett was
ejected or not was remanded for determination, as her status of passenger was crucial to the
Court’s analysis of whether the carrier had a continued duty to her. If she was no longer a
passenger due to a voluntary disembarkation, then the carrier would not be liable for her attack,
regardless of the character of the area in which she was discharged. 143 The utmost duty of care
did not extend beyond the walls of the train car, as that was the limitation of the area of the
carrier’s control over the environment.
140 Bragg v. Norfolk R. Co., 110 Va. 867, 871, 67 S.E. 593, ___ (1906).
141 Houston v. Strickland , 184 Va. 994,1004, 37 S.E. 2d 64, ___ (1946).
142 Hines v. Garrett , 131 Va. 125, 139, 108 S.E. 690, ___ (1921).
143 Hines v. Garrett , 131 Va. 125, 139, 108 S.E. 690, ___ (1921).
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VIII. THE LEVEL OF CONTROL
Control is one constant throughout cases involving the liability of a business owner to
third parties. The law appears to impose a duty commensurate with the level of control one has
over a given situation.
Common carriers are vested with a high degree of control over their passengers, and thus
have an elevated duty of care.144 Passengers repose their care and safety with the railroad while
they sleeping or when confined to the cars of the train. 145 This level of control, to an extent, is
the logic behind the duty created in Taboada. The majority in Taboada discussed the “direct and
continued control of the property” in contrast to the lesser control that a landlord exerts .
146
In
other contexts of liability for acts of third parties, the Virginia Supreme Court has drawn on the
issue of control. For example, control proved to be the primary issue when a deputy sheriff
failed to stop an attack on a witness to an accident, 147 a half way house failed to control one of its
residents,148 or a patient in a mental hospital attacked a fellow patient.149 By contract, in cases in
which control was not invested in the defendant, no liability would attach.150 This ability to
control formed the basis of the distinction between the landlord-tenant cases distinguished in
144 Connell v. Chesapeake and Ohio Ry. Co., 93 Va. 44, 55, 24 S.E. 467, 468 (1896).
145 Connell, 93 Va. 44, 55, 24 S.E. 467, 468.
146 Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428 (2006).
147 Burdette v. Marks, 244 Va. 309, 421 S.E.2d 419, (1992).
148 Dudley v. Offender Aid and Restoration of Richmond, Inc., 241 Va. 270, 401 S.E.2d 878 (1991).
149 Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 523 S.E.2d 826 (2000).
150 Nasser v. Parker , 249 Va. 172, 455 S.E. 502 (1995); Yellow Cab Co. v. Eden, 178 Va. 325. 338, 16 S.E. 2d 625
(1941)(“It was not the duty of Mrs. Eden to direct and control the driver nor to keep a lookout for approaching
cars…It would be a dangerous rule indeed to require that the passenger of the taxicab direct its driver how to operate
the cab”); Marshall v. Winston, 239 Va. 315, 318, 389 S.E.2d 902, ___ (1990).
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Taboada.151 Even as in Hines where Garrett retained authority over her own person and had
been forced from the train to a place of danger, the carrier remained liable.152 As implied in
Hines, the carrier would not have been liable for the attack on Garrett had she been dropped at
her station, as contracted.153
Furthermore, railroads were given authority commensurate with being a quasi-
governmental entity. In Birchfield , the Court reasoned as follows:
The conductor has the power, and it is his duty, to preserve order on the train; if necessary,stopping the train and calling to his assistance all the train employees and such passengers as
are willing to assist him. Until, at least, he has put forth the forces at his disposal, he has no
right to abandon the scene of conflict. In order that conductors may be clothed with authority
commensurate with their duty, they are in this State made conservators of the peace by Code,1904, section 1294d, clause 10. In the case at bar the conductor was derelict in the discharge
of his duty, and the carrier is liable154
Thus, railroads and common carriers are clothed with municipal authority over the
passengers who relinquished rights in order to make use of the conveyance offered. An
individual who has been asked to remove a shoe, dump out a bottle of water, or leave a pair of
nail clippers in the trash in order to board an airplane is aware of such relinquishments. Once on
an airliner, a small indicator light tells one when to stand up, use the restroom, or even unbuckle
a seatbelt. If one smokes in the airplane restroom, one must be prepared to meet with the United
States Marshals upon arriving at a destination. Federal pre-emption aside, these examples could
not have been foreseen when Birchfield, McDemmick, Connell, and Hines were decided.
151 Taboada v. Daly Seven, Inc., 271 Va. 313, 323, 626 S.E.2d 428, ___ (2006).
152 Hines v. Garrett , 131 Va. 125, 139, 108 S.E. 690, ___ (1921).
153 Hines v. Garrett , 131 Va. 125, 139, 108 S.E. 690, ___ (1921).
154 Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 823, 54 S.E. 879, ____ (1906).
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However, they illustrate the type of authority which the Courts at the time deemed a fair
exchange for an elevated level of care toward the passengers in their charge.155
As was alleged in both Wright and Taboada, motels can install cameras, lights and
fences, and hire security guards, as can any business that allows invitees onto its premises. But,
motels cannot control the ingress and egress, neither in frequency nor in time of day, of its
patrons. The resulting duty of an innkeeper, under the analysis in Taboada, is much broader. An
innkeeper cannot exercise that type of control over its guests. The issues of ingress and egress
and of the burden of limiting access by trespassers certainly resemble the logistics of the railroad
station. Additionally, there is no quasi-governmental power reposed in a motel in Virginia.
Hines, which the Taboada Court relied upon for the premise that a carrier is deemed to be
on notice of the areas around its railroad tracks, was distinguished as inapposite in Wright . Not
because Wright was a common carrier case, but because it involved an affirmative act of
negligence in ejecting a passenger from a place other than the scheduled destination.156 There
was no suggestion, either in Wright or Hines that had the attack against the Hines plaintiff taken
place at a designated stop that the railroad would have been responsible for the attack. In fact,
Hines was remanded because of the trail court’s failure to give an instruction which would have
exonerated the railroad for the attack, had the plaintiff voluntarily disembarked from the train.
Notice of the railroad concerning the environment was not the issue. Rather, it was whether the
plaintiff had maintained her status as a passenger. If she had, the railroad breached its duty of
care by the affirmative act of ejecting her from the train.
155 Connell v. Chesapeake and Ohio Ry. Co., 93 Va. 44, 55, 24 S.E. 467, 468 (1896).
156Wright v. Webb, 234 Va. 527, 533, 362 S.E.2d 919, ___ (1987).
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A subsequent issue for review is the creation of the artificial distinctions that now arise.
For example, when exactly is one considered a guest? Would the fact that Mr. Taboada had just
checked out of the motel, instead of in, created a different outcome? What about a guest of a
guest? The dissent in Taboada offered other hypotheticals, as well as a case against the ruling.
An innkeeper can control the interior spaces of a facility, just as a common carrier can control
the inside of a passenger car. A trespasser walking the halls of a motel certainly carries a
different connotation than a trespasser walking across the parking lot. It is much easier to
control the interior of a facility as opposed to open spaces.
The issue of control is directly associated with the ability of a property owner to
intervene, as in Birchfield and Gupton. In arguing the permutations of Taboada that will arise at
a future time, the best approach is to focus on control and intervention. As the Virginia Supreme
Court stated in Gulf Reston, “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 in account.”
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