Commonwealth of Virginia Not Responsible for Virginia Tech Murder

State Supreme Court rules state not responsible; massacre was not reasonably foreseeable.

In a case of direct relevance to the legal duty of churches to employ security guards, the Virginia Supreme Court ruled that the Commonwealth of Virginia was not legally responsible for the murder of 32 students by an armed assailant on campus property because the massacre was not reasonably foreseeable.

At approximately 7:30 a.m. on April 16, 2007, the Virginia Tech University Police Department received a call that an "incident" had occurred in a dormitory. The specifics of what happened were unknown. When officers arrived, they found two gunshot victims, a male and a female. Although officers from the university police department were the first on the scene, the municipal police department led the investigation.

During the investigation, police came to believe that they were investigating an isolated incident that posed no danger to others and that the shooter had fled the area. They did not believe that a campus lockdown was necessary.

At the crime scene, police learned that the female victim's boyfriend was a gun enthusiast and identified him as a person of interest. The police located the boyfriend at 9:45 a.m. As police spoke with him they received word that there were "active shots" in a Virginia Tech building.

The president of Virginia Tech learned of "a shooting" at approximately 8 a.m. and called a meeting of a group of administrators tasked with campus safety, named the University Policy Group, to assess the situation and handle the release of information. Shortly after 8 a.m., the president spoke with the chief of the Virginia Tech Police Department, and learned that a female and a male student had been shot, at least one of whom was dead, that the shootings were likely domestic in nature, and that the shooter apparently had left the campus.

The Policy Group convened around 8:30 a.m. During this meeting, the president learned that the police were on the lookout for the female victim's boyfriend as a person of interest. One of the group's members notified the governor's office at approximately 8:45 a.m. of what had happened but indicated that the information was not releasable because Virginia Tech was working on a press release. The e-mail to the governor's office stated "Not releasable yet. One student dead, one wounded. Gunman on loose. State police are involved. No details available yet."

Virginia Tech wanted to notify the next of kin before releasing the information to the public. The president instructed a Policy Group member to compose a campus notice, and following revisions and technical problems with the computer system, it was sent out by campus-wide "blast e-mail" at 9:26 a.m. The notice stated that "a shooting incident occurred … earlier this morning. Police are on the scene and investigating" and advised students to be alert for anything suspicious.

At approximately 9:45 a.m. the mass shooting in another campus building began. At 9:50 a.m. a second campus-wide "blast e-mail" was sent stating that "a gunman is loose on campus. Stay in buildings until further notice. Stay away from all windows." Police later identified Seung-Hui Cho as the shooter. It was later determined that he shot and killed 32 persons, and wounded 17 others, before committing suicide.

The families of two of the victims sued the Commonwealth of Virginia, the president of Virginia Tech, and several other persons (the "defendants") for wrongful death. The plaintiffs claimed that the defendants had a duty to warn students of criminal acts and that their failure to do so in a timely manner was the cause of most of the deaths and injuries.

The defendants argued that they had no duty to warn students since the massacre was not reasonably foreseeable. A jury returned a verdict in favor of the plaintiffs and awarded $4 million to each family. On appeal, the Virginia Supreme Court reversed the trial court's ruling and dismissed all claims against the defendants, concluding that "the facts in this case do not give rise to a duty to warn students of the potential for third party criminal acts."

The Virginia Supreme Court's Ruling

The court began its decision by noting that "as a general rule, a person does not have a duty to warn or protect another from the criminal acts of a third person," and that "this is particularly so when the third person commits acts of assaultive criminal behavior because such acts cannot reasonably be foreseen." The court concluded:

Here … there simply are not sufficient facts from which this court could conclude that the duty to protect students against third party criminal acts arose as a matter of law. In this case, the defendants knew that there had been a shooting in a dormitory in which one student was critically wounded and one was murdered. They also knew that the shooter had not been apprehended. At that time, the defendants did not know who the shooter was, as law enforcement was in the early stages of its investigation of the crime. However, based on representations from three different police departments, Virginia Tech officials believed that the shooting was a domestic incident and that the shooter may have been the boyfriend of one of the victims. Most importantly, based on the information available at that time, the defendants believed that the shooter had fled the area and posed no danger to others … . Based on the limited information available to the defendants prior to the shootings … it cannot be said that it was known or reasonably foreseeable that students would fall victim to criminal harm. Thus, as a matter of law, the defendants did not have a duty to protect students against third party criminal acts.

What This Means For Churches:

This case is important for the following reasons.

1. Impact on other courts
While only binding on state courts in the Commonwealth of Virginia, this case will be "persuasive" authority in other jurisdictions because it represents one of the few cases to address the liability of schools for deaths and injuries caused by armed shooters on their premises.

2. Liability based on foreseeability
The court applied the general rule that landowners generally are not liable for the acts of armed shooters on their premises unless such acts are reasonably foreseeable. The Restatement (Second) of Torts, a respected legal treatise, states the general rule as follows:

[A property owner] is not liable where he neither knows nor should know of the unreasonable risk… . He is not required to take precautions against a sudden attack from a third person which he has no reason to anticipate. Section 314A, comment e.

Similarly, Restatement (Second) of Torts § 344 (comment f), provides:

Since the possessor is not an insurer of the visitor's safety, 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.

In summary, according to the Virginia Supreme Court and the Restatement (Second) of Torts, the foreseeability of an unreasonable risk of criminal conduct is a precondition to imposing a duty on a property owner to protect others from that risk. It is important to note that

criminal conduct of a specific nature at a particular location is never foreseeable merely because crime is increasingly random and violent and may possibly occur almost anywhere, especially in a large city. If a [property owner] had a duty to protect people on his property from criminal conduct whenever crime might occur, the duty would be universal. This is not the law. A duty exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. Whether such risk was foreseeable must not be determined in hindsight but rather in light of what the premises owner knew or should have known before the criminal act occurred. Lefmark Management Company v. Old, 946 S.W.2d 52 (Tex. 1997).

Notable Quote

"[W]hat protective measures should be pursued to protect against a mass murderous assault truly defy exact delineation, because how can one know which measures will be effective against a degenerate, a psychopath or a psychotic?"
Lopez v. McDonald's Corporation, 238 Cal.Rptr. 436 (Cal. App. 1987)

In deciding if criminal conduct on a landowner's premises was foreseeable, the courts generally have examined the following factors:

whether any criminal conduct previously occurred on or near the property
how recently and how often similar crimes occurred
how similar the conduct was to the conduct on the property
what publicity was given the occurrences to indicate that the landowner knew or should have known about them.

Each of these factors is summarized below.

(1) Other crimes have occurred on the property or in its immediate vicinity
Criminal activity occurring far from a landowner's property bears less relevance because crime rates often vary significantly within a large geographic area. This is not to say that evidence of remote criminal activity can never indicate that crime is approaching a landowner's property. But such evidence must show that the risk of criminal conduct on the landowner's property is not merely increasing, but has reached a level as to make crime likely. One court explained foreseeability as follows: "It does not necessarily follow that the prior similar criminal activity must have taken place at the premises; it is required only that the criminal act or acts occurring near the premises in question give notice of the risk that crime may travel to the premises of the business owner."

(2) How recently and often similar crimes occurred on or near the property
Foreseeability also depends on how recently and how often criminal conduct has occurred in the past. The occurrence of a significant number of crimes within a short time period strengthens the claim that a particular crime was foreseeable. On the other hand, the complete absence of previous crimes, or the occurrence of a few crimes over an extended time period, negates the foreseeability element.

To illustrate, the courts have found a criminal act to be foreseeable when similar crimes occurred on or near the property in question (1) ten times within three years; (2) 394 times within two-and-a-half years; (3) 40 times within one year; (4) 85 times within three or four years; (5) seven times within one year; and (6) 75 to 100 incidents within three years.

On the other hand, the courts have concluded that a criminal act was not foreseeable in several cases, including the following: (1) an apartment owner was not liable for a criminal assault on a tenant because no violent crimes had occurred at the premises; (2) sexual assault on a female customer of a parking ramp was unforeseeable in light of only 17 previous crimes over a 10-year period; (3) a bank could not foresee an assault at one of its ATMs based on two previous crimes within the eight preceding years; (4) an assault in a grocery store was not foreseeable because no robberies or assaults had ever occurred in the store; (5) "because there are no reports of prior similar crimes occurring on the Wal-Mart Supercenter parking lot, the crime was unforeseeable"; (6) a cab company could not foresee an employee's criminal act based upon one prior incident in a 20-year period.

(3) Similarity of previous crimes
The previous crimes must be sufficiently similar to the crime in question to place the property owner on notice of the specific danger. To illustrate, one court found that the stabbing of a guest at an apartment complex was not foreseeable from four prior incidents of vandalism and the theft of a refrigerator.

The prior crimes need not be identical. A string of assaults and robberies in an apartment complex make the risk of other violent crimes, like murder and rape, foreseeable. On the other hand, a spate of domestic violence in the complex does not portend third-party sexual assaults or robberies.

To be sure, this factor is often difficult to apply because, as one court observed, "criminal activity is not easily compartmentalized." In addition, property crimes may facilitate personal crimes. For example, a burglar who breaks into a home to steal property may decide to assault a person who is discovered inside. On the other hand, vandalism to automobiles in an apartment complex's parking lot generally does not suggest the likelihood of sexual assault.

(4) Publicity given to prior crimes
The publicity surrounding the previous crimes helps determine whether a property owner knew or should have known of a foreseeable danger. Actual notice of past incidents strengthens the claim that future crime was foreseeable. However, unreported criminal activity on the premises is no evidence of foreseeability. Previous similar incidents cannot make future crime foreseeable if nobody knows or should have known that those incidents occurred. One court noted that "property owners bear no duty to regularly inspect criminal records to determine the risk of crime in the area. On the other hand, when the occurrence of criminal activity is widely publicized, a property owner can be expected to have knowledge of such crimes."

In summary, these factors (proximity, timing, similarity, and publicity) must be considered together in determining whether criminal conduct is foreseeable. The frequency of previous crimes necessary to show foreseeability lessens as the similarity of the previous crimes to the incident at issue increases. The frequent occurrence of property crimes in the vicinity is not as indicative of foreseeability as the less frequent occurrence of personal crimes on the landowner's property itself. The court must weigh the evidence using all the factors.

"Foresight, not retrospect, is the standard of diligence. It is nearly always easy, after an accident has happened, to see how it could have been avoided. But negligence is not a matter to be judged after the occurrence. It is always a question of what reasonably prudent men under the same circumstances would or should, in the exercise of reasonable care, have anticipated. Reasonable anticipation is that expectation created in the mind of the ordinarily prudent and competent person as the consequence of his reaction to any given set of circumstances. If such expectation carries recognition that the given set of circumstances is suggestive of danger, then failure to take appropriate safety measures constitutes negligence. On the contrary, there is no duty to guard when there is no danger reasonably to be apprehended. Negligence is gauged by the ability to anticipate. Precaution is a duty only so far as there is reason for apprehension. Reasonable apprehension does not include anticipation of every conceivable injury. There is no duty to guard against remote and doubtful dangers." Shearman and Redfield on Negligence.

If a church receives a threat of an attack by an armed assailant, this will immediately elevate foreseeability toward certainty, triggering a corresponding duty on the part of the church to implement the most stringent safeguards. Depending on the circumstances, this may require the cancellation of church services. It is imperative that church leaders coordinate the church's response with local enforcement agencies.

3. Other considerations
Most churches will not be legally liable for deaths and injuries caused by armed assailants on their premises because such violent acts ordinarily are not reasonably foreseeable. To be sure, there are exceptional cases in which such acts are foreseeable, but this will be the exception rather than the rule. As a result, most churches should not base their decisions regarding armed guards and other security measures on a desire to reduce legal liability, and the recent decision by the Virginia Supreme Court underscores this conclusion. That said, there are reasons other than the avoidance of liability why church leaders may consider implementing measures to respond to armed assailants, and these include theological and moral considerations. To illustrate, many church leaders and congregations, guided and informed by their theological values, feel compelled to take steps to protect human life from acts of violence whether or not they have a legal duty to do so. In responding to the risk of armed assailants, there are several factors for church leaders to consider, including the following:

Key point 10-11. A church may be legally responsible on the basis of negligent supervision for injuries resulting from a failure to exercise adequate supervision of its programs and activities.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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