Most people understand that if one individual assaults another and causes injury, the injured party may sue her assailant for an award of damages designed to compensate her for the full measure of her injuries. But if a person is injured by an assailant, can the injured person sue a third party who knew that the assailant was dangerous, but failed to warn her about the danger? Lawsuits for negligent failure to warn of potential criminal acts by a third party are permitted in some circumstances but not in others, based on legal precedent created by prior rulings by the Virginia Supreme Court.
In order to recover damages against a defendant for negligence, the plaintiff must establish: (1) the defendant had a legal “duty”; (2) the defendant violated that legal duty; and (3) the plaintiff suffered damages as a result of the defendant’s violation.[1] According to the Virginia Supreme Court, a person does not have a duty to warn or protect another from the criminal acts of a third person unless one of two “special relationships” exists: (1) a relationship between the defendant and the third person which requires the defendant to control the third person’s conduct, or (2) a relationship between the defendant and the plaintiff which requires the defendant to protect the plaintiff.[2]
The Virginia Supreme Court has found the following to be “special relationships” for which a duty to warn of potential criminal acts of a third party is imposed: (1) common carrier and passenger; (2) innkeeper and guest; (3) employer and employee; (4) business owner and invitee; and (5) hospital and patient.[3]
In the most recent case on this topic, Brown v. Jacobs, the plaintiff argued that an attorney who hired a private process server to serve legal papers on a dangerous person (who ultimately attacked and killed the process server) had a legal duty to warn the process server of the potential for criminal assault.[4] The Supreme Court disagreed with the plaintiff. The Court ruled that the relationship between the plaintiff and defendant was that of employer and independent contractor, and whether or not the law recognizes a duty to warn in such a relationship depends on the facts of the specific case.
In the Brown case, the Court declined to impose a duty to warn on the defendant because the process server was an adult who was not inherently vulnerable, had been hired for one assignment, was free to carry out his work as he saw fit, and did not require supervision.[5] The Court contrasted these facts with a previous case, A.H. v. Rockingham Publishing Co., in which it found that a duty to warn existed in an employer and independent contractor relationship under the facts of that case.[6] In the A.H. case, the defendant was a newspaper publisher who failed to warn a thirteen-year-old newspaper carrier of the dangers of being attacked while delivering newspapers. The Court explained that there was a duty to warn because the delivery boy was a minor in need of protection, and he had worked for more than one year under the employer’s control. [7]
Whether or not the law recognizes a duty to warn of the potential criminal acts of a third party is a complicated question. Determining the answer requires detailed knowledge of the law in Virginia and the facts of the particular case. The answer to the question can make the difference as to whether or not the plaintiff is able to recover damages against the defendant.
About the Author: David M. Irvine is an experienced trial attorney focusing his practice on personal injury law working in the firm’s Charlottesville, Virginia office. He has handled cases involving car accidents, catastrophic injuries and wrongful death and has litigated cases across the Commonwealth on behalf of deserving clients. David has published on topics related to litigation in wrongful death cases and trial procedure and regularly speaks on litigation topics.
[1] Burdette v. Marks, 244 Va. 309 (1992).
[2] Burns v. Gagnon, 283 Va. 657 (2012).
[3] Kellerman v. McDonough, 278 Va. 478 (2009).
[4] Brown v. Jacobs, 2015 Va. LEXIS 15 (Feb. 26, 2015).
[6] A.H. v. Rockingham Publishing Co., 255 Va. 216 (1998).
[7] However, the Court ultimately concluded that the defendant did not have a duty to warn or protect the plaintiff did not establish that the assault was reasonably foreseeable. Id., at 225.
