Burns v. Gagnon

PRESENT: All the Justices

TRAVIS BURNS

v. Record No. 110754

GREGORY JOSEPH GAGNON, ET AL.
OPINION BY
JUSTICE LEROY F. MILLETTE, JR.
April 20, 2012
GREGORY JOSEPH GAGNON

v. Record No. 110767

TRAVIS BURNS, ET AL.

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
R. Bruce Long, Judge

These companion appeals arise out of a personal-injury

suit brought by a former Gloucester High School (GHS or school)

student who was injured in a fight with another student on

school grounds. On the morning of the fight, an assistant

principal at the school received a report that the fight would

occur sometime that day. He did not act on the report before

the fight.

The injured student sued the other student involved in the

fight, a third student who encouraged the fight, and the

assistant principal, asserting claims for simple and gross

negligence, assault, and battery. A jury returned a verdict

against all three defendants and awarded the injured student a

total of $5 million in damages, with a different amount awarded

against each defendant. The circuit court entered judgment on
the verdict but refused to hold the defendants jointly and

severally liable.

We granted the assistant principal's appeal 1 and the

injured student's cross-appeal to consider (1) whether the

assistant principal owed the injured student a legal duty; (2)

whether the assistant principal is entitled to the protection

of sovereign immunity; (3) whether there was evidence to

support the injured student's proffered jury instruction on

gross negligence; (4) whether the deposition of an absent

witness was admissible; and (5) whether intentional and

negligent tortfeasors can be held jointly and severally liable.

For the reasons that follow, we reverse in part and remand the

case to the circuit court for a new trial.

I.

A.

At around 9:00 a.m. on December 14, 2006, Shannon H. Diaz,

a student at GHS, met with Principal Layton H. Beverage and

Vice Principal W. R. Travis Burns to discuss a disciplinary

offense. When the meeting ended, Diaz informed Burns that,

according to messages sent through the social-networking

website MySpace, his friend and fellow student Gregory J.

Gagnon was going to get into a fight with another student

1
Neither of the other two defendants appealed; thus, the
judgment is final as to them.
2
sometime that day. Burns wrote down Gagnon's name and told

Diaz that he would "alert [his] security and we'll make sure

this problem gets taken care of." Burns did not, however, act

on Diaz' report that morning.

Roughly two hours after Diaz and Burns met, Gagnon was

approached by another student, James S. Newsome, Jr. (Newsome),

in the school's cafeteria. The two exchanged words, and

Newsome's sister and fellow student, Christine D. Newsome

(Christine), who was standing behind Newsome, said, "either

. . . hit [Gagnon] or walk away." Newsome then punched Gagnon

once in the face, knocking his head back into a brick pillar.

B.

In 2009, Gagnon filed an amended complaint against Burns,

Newsome, and Christine, asserting claims for simple and gross

negligence, assault, and battery. With respect to Newsome and

Christine, Gagnon alleged that Newsome assaulted and battered

him, and that Christine aided and abetted the assault and

battery. As for Burns, Gagnon alleged that he owed him various

duties of care and that he breached those duties by, among

other things, (1) failing to implement necessary policies and

procedures to "rein[] [in] student-on-student fights" at the

school; (2) taking no action in response to Diaz' report; and

(3) failing to protect him from Newsome's conduct. Gagnon

claimed that the defendants' intentional and negligent acts

3
caused him to suffer permanent disability, including a "present

and future brain injury." He sought judgment against all three

defendants, jointly and severally, in the amount of $9,000,000. 2

Burns filed a demurrer and plea in bar, arguing that he

owed no legal duty to Gagnon and that he was immune from

Gagnon's simple negligence claim under both Code § 8.01-220.1:2

and the common law. In addition, Burns contended that Gagnon's

allegations were insufficient to support a claim against him

for gross negligence.

C.

The circuit court held an evidentiary hearing on Burns'

plea in bar. At that hearing, Burns testified that, in 2006,

he was the assistant principal at GHS in charge of ninth-grade

student discipline and that his duties included receiving

reports of disciplinary offenses. When asked to recount the

events of December 14, 2006, Burns said that he and Beverage

met with Diaz that morning to discuss a disciplinary matter.

Burns testified that, after the meeting, Diaz told him that,

based on "some exchanges" happening on MySpace, there was a

fight that "may occur between . . . Gagnon[] and another boy."

According to Burns, Diaz did not give him the name of the other

student or the date, time, or place of the fight. Burns

2
Gagnon originally prayed for punitive damages as well,
but he later abandoned that claim.
4
further testified that "the only thing [he] did" in response to

Diaz' report "was [he] took . . . Gagnon's name down and . . .

told [Diaz] that [he] would look into the matter."

When asked why he did not act on Diaz' report, Burns said

that he had other priorities to attend to that morning and that

he did not consider the report to present an immediate concern.

Yet Burns acknowledged that, had he "see[n the report] as

pressing," he could have located Gagnon that morning using the

school's computer system, could have asked one of the school's

security guards to remove Gagnon from class, and could have had

Gagnon brought to his office.

Over Burns' objection, Gagnon introduced portions of Diaz'

de bene esse deposition at the hearing, representing to the

circuit court that Diaz was unable to appear because he was on

active military duty. In the admitted portions, Diaz testified

that he told Burns on December 14, 2006, that Gagnon was going

to get into a fight with another student sometime that day, but

that he did not say who the other student would be. According

to Diaz, Burns told him that he would "alert security" and

"make sure this problem [was] taken care of." But Diaz said

that Burns never asked him for the name of the other student or

for the time or place of the fight.

Gagnon's mother and father both testified at the hearing

that Burns spoke to them individually in the days following the

5
fight and apologized for "dropp[ing] the ball." And a deputy

assigned to GHS testified that soon after the fight, Burns

admitted that "he believe[d] he screwed up." During his

testimony, Burns denied making these admissions.

The circuit court denied Burns' demurrer and plea in bar.

On the threshold issue of legal duty, the circuit court held

that Burns owed Gagnon "legal duties," but it did not specify

what those duties were. As to whether Burns was entitled to

common-law sovereign immunity, the circuit court applied the

four-factor test established in James v. Jane, 221 Va. 43, 53,

282 S.E.2d 864, 869 (1980), and explained in Messina v. Burden,

228 Va. 301, 312-13, 321 S.E.2d 657, 663-64 (1984), finding

that the only factor that was contested by the parties was

whether Burns' alleged wrongful act was discretionary or

ministerial. Relying on B.M.H. v. School Bd. of City of

Chesapeake, 833 F. Supp. 560, 571 (E.D. Va. 1993), as

persuasive authority, the circuit court concluded that Burns'

omitted act of "notifying school security of the reported

impending physical altercation or otherwise investigating the

report of . . . Diaz" was ministerial. The circuit court thus

held that Burns was not entitled to common-law sovereign

immunity. It also held that Burns was not entitled to

statutory sovereign immunity because Code § 8.01-220.1:2 –

6
which provides, among other things, civil immunity to teachers

under certain circumstances — did not apply to Gagnon's claims.

The circuit court further concluded that "Burns' acts or

omissions did not constitute gross negligence, but did, for

purposes of the plea in bar, make out a sufficient case of

simple negligence to permit the issue to be determined by a

jury." Lastly, the circuit court denied Burns' post-hearing

motion to strike Diaz' deposition, finding that the deposition

was taken in another action with substantially similar parties

and issues, 3 that Diaz was an unavailable witness, and that

Burns' counsel had participated in the deposition.

D.

The case proceeded to a nine-day jury trial in which Burns

and Gagnon presented substantially the same evidence that they

offered at the plea in bar hearing. In addition, Burns

testified that he asked Diaz the name of the other student who

would be involved in the fight with Gagnon, but that Diaz said

that he did not know. According to Burns, Diaz also said that

he did not know the other student's grade or "what the conflict

was about." Burns further testified that he believed that Diaz

had a "credibility issue" because he was slow to admit that he,

and not some other students that he had initially implicated,

3
Gagnon originally sued Burns and the Gloucester County
School Board. That case was nonsuited, and this case was filed
against Burns, Newsome, and Christine.
7
had committed the disciplinary offense that was being

investigated on the morning of the fight.

At the close of all evidence, the circuit court considered

jury instructions and verdict forms. As relevant here, Gagnon

proposed an instruction and special interrogatory on gross

negligence. The circuit court refused both, citing its prior

ruling at the plea in bar stage that Burns' acts or omissions

did not constitute gross negligence.

With respect to damages, Gagnon argued that Burns should

be liable for all of the damages awarded by the jury, even

those damages that resulted from Newsome's assault and battery.

Gagnon accordingly offered a "general personal injury and

property damage" instruction that did not separate the damages

awards for each defendant. The circuit court rejected the

instruction, ruling that damages for assault and battery would

be specific to Newsome in the instructions.

Gagnon proposed that a single verdict form be used, but

the circuit court expressed its preference for separate forms

for all three defendants. The circuit court thus prepared a

form for each defendant, which asked the jury to find whether

the particular defendant was liable, and, if so, to list the

amount of damages as to that defendant.

The jury returned a verdict in favor of Gagnon against

Burns in the amount of $1,250,000, against Newsome in the

8
amount of $3,250,000, and against Christine in the amount of

$500,000. Burns asked the circuit court to give an

interrogatory to the jury asking whether it was its intent to

render separate damages verdicts for each defendant. Gagnon

objected to the interrogatory, stating that the jury rendered a

verdict on the forms provided by the circuit court. Although

the circuit court thought it clear that the jury had rendered

separate verdicts, it nonetheless asked the jury whether its

intent was that each defendant be responsible only for the

amount awarded against him or her, and not liable for the

amounts awarded against the other defendants; and the jury

responded in the affirmative.

E.

In a post-trial motion, Gagnon asked the circuit court to

hold the defendants jointly and severally liable for the total

$5,000,000 verdict. He argued that his injury was indivisible

and that the jury found all three defendants liable as joint

tortfeasors. Moreover, he maintained, the jury had no right to

dictate the legal consequences of its damages calculation, and

Code § 8.01-443 commanded joint and several liability. The

circuit court denied the motion and entered judgment in

accordance with the verdict.

Burns and Gagnon now cross-appeal. Burns challenges the

circuit court's rulings on the issues of legal duty, sovereign

9
immunity, and Diaz' deposition. And Gagnon challenges the

circuit court's rulings on the issues of gross negligence and

joint and several liability.

II.

"Negligence," we have long said, "is not actionable unless

there is a legal duty, a violation of the duty, and consequent

damage." Marshall v. Winston, 239 Va. 315, 318, 389 S.E.2d

902, 904 (1990). The first question that we must answer, then,

is whether Burns owed Gagnon a legal duty. "The issue whether

a legal duty in tort exists is a pure question of law," and

thus is subject to de novo review. Kellermann v. McDonough,

278 Va. 478, 487, 684 S.E.2d 786, 790 (2009); see also Fox v.

Custis, 236 Va. 69, 74, 372 S.E.2d 373, 375 (1988).

The circuit court ruled that Burns owed Gagnon "legal

duties," but it did not indicate what those duties were.

Gagnon argues, as he did below, that Burns owed three: (1) an

elevated duty of care to protect him from Newsome's conduct;

(2) a common-law duty of ordinary care; and (3) an assumed duty

to investigate Diaz' report and notify school security about

the fight.

A.

"We have consistently held that 'generally a person does

not have a duty to protect another from the conduct of third

persons.' " Kellermann, 278 Va. at 492, 684 S.E.2d at 793

10
(quoting Didato v. Strehler, 262 Va. 617, 628-29, 554 S.E.2d

42, 49 (2001)). "This is particularly so when the third person

commits acts of assaultive criminal behavior because such acts

cannot reasonably be foreseen." Burdette v. Marks, 244 Va.

309, 311-12, 421 S.E.2d 419, 420 (1992). There is an exception

to the general rule, however, where "a special relation exists

(1) between the defendant and the third person which imposes a

duty upon the defendant to control the third person's conduct,

or (2) between the defendant and the plaintiff which gives a

right to protection to the plaintiff." Id. at 312, 421 S.E.2d

at 420.

Whether a special relationship exists between a principal

and a student is a question of first impression in this Court.

"Examples of special relationships we have recognized between a

defendant and a plaintiff include common carrier-passenger,

business proprietor-invitee, innkeeper-guest, and employer-

employee with regard to the employer's potential duty of

protecting or warning an employee." Kellermann, 278 Va. at

492, 684 S.E.2d at 793. While "this list of relationships that

give rise to a special relationship is not exhaustive," we have

exercised caution in expanding it to include new relationships.

See id.

"When a negligence claim is made against a public

official, a distinction must be drawn between the official's

11
public duty owed to the citizenry at large and the official's

special duty owed to a specific, identifiable person or class

of persons." Burdette, 244 Va. at 312, 421 S.E.2d at 421.

Only a violation of the latter will give rise to liability

"because it is not in society's best interest to subject public

officials to potential liability for every action undertaken."

Id.

In determining whether a special relationship exists under

the facts presented here, "it is important to consider whether

[Burns] reasonably could have foreseen that he would be

expected to take affirmative action to protect [Gagnon] from

harm." Id. Although Diaz told Burns on the morning of the

fight that Gagnon was going to be in a fight with another

student sometime that day, Diaz did not tell Burns who the

other student would be or the time or place of the fight.

These facts, we think, make this case distinguishable from

Burdette, in which we held that a deputy sheriff owed a duty to

protect a motorist from the criminal conduct of a third person

because the particular facts alleged created an exception to

the general rule. Id. at 312-13, 421 S.E.2d at 421. In that

case, the deputy sheriff responded to the scene of a car crash,

where he witnessed the motorist being attacked by a third

person, with first a shovel and then an iron pipe. Id. at 310-

11, 421 S.E.2d at 420. Despite the motorist's calls for help,

12
the deputy sheriff did not intervene. Id. at 311, 421 S.E.2d

at 420. We concluded that a special relationship existed

between the deputy sheriff and the motorist, because the

sheriff "knew or should have known that [the motorist] was in

great danger of serious bodily injury or death." Id. at 312,

421 S.E.2d at 421.

In this case, by contrast, there is no evidence in the

record suggesting that Burns knew or should have known that

Gagnon "was in great danger of serious bodily injury or death."

Id. Again, all that Diaz told Burns was that, according to

messages sent through MySpace, there would be a fight involving

Gagnon sometime that day. Moreover, Burns was not present when

Newsome punched Gagnon; thus, unlike the deputy sheriff in

Burdette, Burns was not in a position to step in and stop the

fight.

This case is also distinguishable, in our view, from

Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428

(2006), a case upon which Gagnon heavily relies. There we

reaffirmed that a special relationship exists between an

innkeeper and guest. Id. at 323, 626 S.E.2d at 432. In doing

so, we noted that the innkeeper-guest special relationship

dates back to the Middle Ages when travellers were "[e]xposed

. . . to robbery and violence" while on their pilgrimages, and

thus were "compelled to repose confidence" in innkeepers when

13
stopping for the night; "and hence there grew up the salutary

principles that a host owed his guest the duty, not only of

hospitality, but also of protection." Id. at 323 n.4, 626

S.E.2d at 432 n.4 (quoting Kveragas v. Scottish Inns, Inc., 733

F.2d 409, 412 (6th Cir. 1905)).

Gagnon argues that the principal-student relationship is

similar to the innkeeper-guest relationship and therefore asks

us to recognize it as a special relationship, too. Just as the

guest entrusts his safety to the innkeeper, Gagnon maintains,

so also the student entrusts his safety to the principal. In

addition, Gagnon contends, the student, like the guest, has

little ability to control his environment and thus relies on

the principal to make the school safe, just as the guest relies

on the innkeeper to make the inn safe.

We decline Gagnon's invitation to expand our special-

relationship jurisprudence to include the principal-student

relationship. For one thing, the innkeeper-guest relationship

has long been recognized by this and other courts as a special

relationship. See id. at 323 & n.4, 626 S.E.2d at 432-33 &

n.4. Indeed, as noted above, its status as such in the common

law dates back to the Middle Ages. Id. at 323 n.4, 626 S.E.2d

at 432 n.4. The principal-student relationship, on the other

hand, has no history – deep-rooted or otherwise – in the common

14
law. In fact, Gagnon fails to point us to even a single case

in which a court has recognized it as a special relationship.

In addition, we have repeatedly been hesitant to recognize

a special relationship where a public official is being sued

for acts committed in his official capacity. See, e.g.,

Marshall, 239 Va. at 319, 389 S.E.2d at 905 (holding that a

sheriff and a jailer had no special relationship with a member

of the general public); Fox, 236 Va. at 75-76, 372 S.E.2d at

376 (concluding that two parole officers did not have a special

relationship with a parolee). The reason for our hesitation,

we have explained, is that "it is not in society's best

interest to subject public officials to potential liability for

every action undertaken." Burdette, 244 Va. at 312, 421 S.E.2d

at 421.

B.

This Court recently held that under the common law, "when

a parent relinquishes the supervision and care of a child to an

adult who agrees to supervise and care for that child, the

supervising adult must discharge that duty with reasonable

care." Kellermann, 278 Va. at 487, 684 S.E.2d at 790. But we

were careful to note that the supervising adult "is not an

insurer of the child's safety. Rather, the supervising adult

must discharge his or her duties as a reasonably prudent person

would under similar circumstances." Id.

15
 Gagnon argues that, pursuant to our holding in Kellermann,

Burns had a common-law duty to supervise and care for him.

Admittedly, the facts presented in this case are markedly

different from those we confronted in Kellermann, where the

defendants agreed to supervise and care for their daughter's

teenage friend. Id. at 484-85, 684 S.E.2d at 788-89. We

nonetheless agree with Gagnon that the duty recognized in that

case is applicable here.

By law, Gagnon's parents had to send Gagnon to school,

where it was the responsibility of Burns and other school

officials to supervise and ensure that "students could . . .

have an education in an atmosphere conducive to learning, free

of disruption, and threat to person." Thus, just as the

defendants in Kellermann owed a duty to supervise and care for

their daughter's teenage friend, Burns owed a duty to supervise

and care for Gagnon. That does not mean, however, that Burns

was an insurer of Gagnon's safety; instead, like the defendants

in Kellermann, Burns can only be held liable if he failed to

"discharge his . . . duties as a reasonably prudent person

would under similar circumstances." Id. at 487, 684 S.E.2d at

790.

C.

We have adopted the common-law principle of assumption of

a duty. Didato, 262 Va. at 629, 554 S.E.2d at 48. Under that

16
principle, "one who assumes to act, even though gratuitously,

may thereby become subject to the duty of acting carefully, if

he acts at all." Kellermann, 278 Va. at 489, 684 S.E.2d at 791

(quoting Nolde Bros. v. Wray, 221 Va. 25, 28, 266 S.E.2d 882,

884 (1980)) (quotation marks omitted). As noted earlier,

whether a defendant owes a plaintiff a duty in tort is

generally a question of law. But when the issue is not whether

the law recognizes a duty, but rather whether the defendant by

his conduct assumed a duty, the existence of that duty is a

question for the fact-finder. Id. at 490, 684 S.E.2d at 791-

92; Didato, 262 Va. at 629, 554 S.E.2d at 48.

In accordance with the principle of assumption of a duty,

an actor who fails to exercise reasonable care in performing

his undertaking may be subject to liability for physical harm

caused not only to the one to whom he has agreed to render

services, but also to a third person. Liability to the latter

is addressed in Restatement (Second) of Torts § 324A, which

provides:

One who undertakes, gratuitously or for
consideration, to render services to another which he
should recognize as necessary for the protection of a
third person or his things, is subject to liability to
the third person for physical harm resulting from his
failure to exercise reasonable care to protect his
undertaking, if

(a) his failure to exercise reasonable care
increases the risk of such harm, or

17
 (b) he has undertaken to perform a duty owed by
the other to the third person, or

(c) the harm is suffered because of reliance of
the other or the third person upon the
undertaking.

Gagnon argues that Burns assumed a duty to investigate

Diaz' report and notify school security about the fight under

the principle of assumption of a duty, because Burns told Diaz

that he would "alert security," "look into it," and "take care

of it." While there is evidence in the record pertinent to the

issue whether Burns assumed this duty, neither the circuit

court at the plea in bar hearing nor the jury at trial made

such a finding. In truth, they were never asked to. Because

we cannot decide the issue as a matter of law, it is to be

decided by the fact-finder on remand. We stress, however, that

Burns can only be subject to liability for Gagnon's physical

harm under Restatement § 324A if Gagnon proves, first that

Burns undertook to investigate Diaz' report and notify school

security about the fight, and then either: (1) that Burns'

failure to exercise reasonable care in performing his

undertaking increased the risk of the harm; (2) that Burns

undertook to perform a duty owed by Diaz to Gagnon; or (3) that

the harm was a result of Diaz' or Gagnon's reliance upon Burns'

undertaking.

18
 III.

Having concluded that Burns owed at least a common-law

duty to supervise and care for Gagnon, we now turn to the

question whether Burns is entitled to the protection of

sovereign immunity. " 'The existence of sovereign immunity is

a question of law that is reviewed de novo.' " Lee v. City of

Norfolk, 281 Va. 423, 439, 706 S.E.2d 330, 338 (2011) (quoting

City of Chesapeake v. Cunningham, 268 Va. 624, 633, 604 S.E.2d

420, 426 (2004)).

Burns asserts that he is immune from Gagnon's simple

negligence claim under both Code § 8.01-220.1:2 and the common

law. We disagree that the statute affords Burns immunity, but

agree that the common law does.

A.

Entitled "Civil immunity for teachers under certain

circumstances," Code § 8.01-220.1:2, in relevant part,

provides:

A. Any teacher employed by a local school board
in the Commonwealth shall not be liable for any civil
damages for any acts or omissions resulting from the
supervision, care or discipline of students when such
acts or omissions are within such teacher's scope of
employment and are taken in good faith in the course
of supervision, care or discipline of students, unless
such acts or omissions were the result of gross
negligence or willful misconduct.

B. No school employee or school volunteer shall
be liable for any civil damages arising from the
prompt good faith reporting of alleged acts of

19
 bullying or crimes against others to the appropriate
school official in compliance with specified
procedures.

Burns maintains that he is entitled to immunity from Gagnon's

simple negligence claim under both of these subsections. We

address them in turn.

1.

Burns argues that he is immune under subsection (A)

because Gagnon's simple negligence claim arises out of acts or

omissions relating to the "supervision, care or discipline of

students" within the scope of Burns' employment. Code § 8.01-

220.1:2(A). Burns acknowledges that subsection (A) speaks only

of "[a]ny teacher," id., but argues that, under this Court's

decision in Tazewell County School Board v. Brown, 267 Va. 150,

162, 591 S.E.2d 671, 677 (2004), "teacher" includes principals.

Hence, he concludes, principals, too, are shielded from

liability under subsection (A).

We disagree. By its terms, subsection (A) applies only to

"[a]ny teacher." Code § 8.01-220.1:2(A). Because "teacher" is

not defined in Code § 8.01-220.1:2, we must accord the term its

"ordinary meaning." James v. City of Falls Church, 280 Va. 31,

43, 694 S.E.2d 568, 575 (2010); see also Hubbard v. Henrico

Ltd. P'ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998)

("When . . . a statute contains no express definition of a

term, the general rule of statutory construction is to infer

20
the legislature's intent from the plain meaning of the language

used."). A "teacher" is defined as "one whose occupation is to

instruct." Webster's Third New International Dictionary 2346

(1993).

Burns' reliance on Brown to argue that, for purposes of

subsection (A), "teacher" also includes principals – i.e.,

those whose occupation is to lead educational institutions, id.

at 1802 – is misplaced. In that case, we considered, among

other things, whether "teacher" includes "the position of

principal" for purposes of Part III of the State Grievance

Procedure. Brown, 267 Va. at 162, 591 S.E.2d at 677. And we

held that it did. Id. at 164, 591 S.E.2d at 678.

In reaching that result, we first noted that "teacher" was

not defined anywhere in Part III. Id. at 162, 591 S.E.2d at

677. We then observed that the term had been defined by the

Board of Education, in accordance with its rule-making

authority: "The definition of the term 'teacher' for purposes

of Part III . . . includes 'all regularly certified/licensed

professional public school personnel employed under a written

contract . . . as a teacher or supervisor of classroom

teachers." Id. (second alteration in original; citation

omitted). Because a principal is required to hold a license

and because a principal is a supervisor of classroom teachers,

we reasoned that a principal fell under the definition of

21
"teacher" for purposes of Part III. Id. at 162-63, 591 S.E.2d

at 677.

Brown's definition of "teacher" has no application here.

As just explained, Brown dealt with a grievance procedure that

was promulgated and construed by a State agency. This case, in

contrast, involves an immunity provision enacted by the General

Assembly. In interpreting that provision, we cannot put a

construction upon the plain and definite words chosen that

"amounts to holding the legislature did not mean what it has

actually expressed." Id. at 162, 591 S.E.2d at 677. In other

words, we " 'cannot change or amend a statute under the guise

of construing it.' " Id. (quoting Coca-Cola Bottling Co. of

Roanoke, Inc. v. County of Botetourt, 259 Va. 559, 565, 526

S.E.2d 746, 750 (2000)). For purposes of subsection (A), then,

we define "teacher" according to its ordinary meaning, and not

according to the meaning we adopted in Brown and urged by

Burns.

Applying that ordinary meaning in this case, we think it

plain that Burns is not a "teacher" under subsection (A). His

occupation is not to instruct at an educational institution,

see Webster's, at 2346; rather, his occupation is to lead an

educational institution. See id. at 1802. We thus conclude

that subsection (A) affords Burns no immunity from Gagnon's

simple negligence claim.

22
 2.

Burns contends that he is also immune under subsection

(B), because, according to him, Gagnon's simple negligence

claim arises out of the "good faith reporting of alleged acts

of bullying or crimes against others to the appropriate school

official in compliance with specified procedures." Code

§ 8.01-220.1:2(B). We find this argument without merit. Burns

was not sued because he reported an alleged act of bullying or

crime against another to the appropriate school official;

rather, he was sued because he failed to respond to such a

report. We accordingly hold that Burns is not entitled to

immunity from Gagnon's simple negligence claim under subsection

(B).

3.

Since neither subsection (A) nor subsection (B) of Code

§ 8.01-220.1:2 applies in this case, we conclude that the

circuit court did not err in holding that Burns was not immune

from Gagnon's simple negligence claim under the statute.

B.

Burns further argues that the common law affords him

immunity from Gagnon's simple negligence claim. "This Court

has outlined a four-factor test for determining whether an

individual working for an immune governmental entity . . . is

entitled to the protection of sovereign immunity." Friday-

23
Spivey v. Collier, 268 Va. 384, 387-88, 601 S.E.2d 591, 593

(2004). See also Messina, 228 Va. at 312-13, 321 S.E.2d at

663-64; James, 221 Va. at 53, 282 S.E.2d at 869. Those factors

are: "(1) the nature of the function the employee performs;

(2) the extent of the governmental entity's interest and

involvement in the function; (3) the degree of control and

direction exercised by the governmental entity over the

employee; and (4) whether the alleged wrongful act involved the

exercise of judgment and discretion." Lentz v. Morris, 236 Va.

78, 82, 372 S.E.2d 608, 610 (1988). Burns and Gagnon, as the

circuit court noted, disagree only over whether the fourth

factor is satisfied. We agree with Burns that it is.

Burns contends that this case is on all fours with Banks

v. Sellers, 224 Va. 168, 294 S.E.2d 862 (1982). There we held,

among other things, that a high school principal is entitled to

immunity because he "performs a large number of discretional

and managerial functions in the school." Id. at 173, 294

S.E.2d at 865. Other than this oblique reference to the

discretionary nature of a number of the functions performed by

a principal, however, the Court did not discuss the application

of the governing four-factor immunity test in holding the

principal immune. See id. Thus, Banks is not dispositive

here.

24
 More recently, in Lentz, we considered whether a

schoolteacher's "supervision and control" of a physical

education class involved judgment and discretion. 236 Va. at

83, 372 S.E.2d at 610. We concluded that it did, reasoning:

"[A] teacher's supervision and control of a physical education

class, including the decision of what equipment and attire is

to be worn by the student participating, clearly involves, at

least in part, the exercise of judgment and discretion by the

teacher." Id., 372 S.E.2d at 611. We accordingly held that

the schoolteacher was entitled to immunity. Id.

Like the schoolteacher's supervision and control of his

physical education class in Lentz, Burns' response (or lack

thereof) to Diaz' report involved the exercise of judgment and

discretion. Upon receiving Diaz' report, Burns had to make

several decisions. To start, Burns had to decide whether to

respond at all. Diaz had misled Burns and Beverage that

morning about an unrelated disciplinary offense, so there was

reason to doubt the report's veracity. Next, Burns had to

decide when to respond. While Diaz said that the fight would

occur sometime that day, he did not provide Burns with a

specific time; thus, there was no reason to think that an

immediate response was required. And finally, Burns had to

decide how to respond. Diaz did not reveal the identity of the

other student who would be involved in the fight or say where

25
the fight would occur, so the type of response needed was not

readily apparent.

In light of these decisions that Burns had to make upon

receiving Diaz' report, we conclude that his response (or lack

thereof) was not simply a ministerial act; instead, it was an

act involving the exercise of judgment and discretion. The

circuit court therefore erred in holding that Burns was not

entitled to common-law immunity from Gagnon's simple negligence

claim.

IV.

If an individual working for an immune governmental entity

is entitled to the protection of sovereign immunity under the

common law, he is not immunized from suit. Colby v. Boyden,

241 Va. 125, 128, 400 S.E.2d 184, 186 (1991). "Rather, the

degree of negligence which must be shown to impose liability is

elevated from simple to gross negligence." Id. Here the

circuit court refused to give the jury a gross negligence

instruction, relying on its prior holding at the plea in bar

stage that Burns' acts or omissions did not amount to gross

negligence. Gagnon asserts that this ruling was in error. We

agree.

"A litigant is entitled to jury instructions supporting

his theory of the case if sufficient evidence is introduced to

support that theory." Price v. Taylor, 251 Va. 82, 85, 466

26
S.E.2d 87, 88 (1996); see also Bowers v. May, 233 Va. 411, 413-

14, 357 S.E.2d 29, 30 (1987). "It is immaterial that the jury

could have reached contrary conclusions. If a proffered

instruction finds any support in credible evidence, its refusal

is reversible error." McClung v. Commonwealth, 215 Va. 654,

657, 212 S.E.2d 290, 293 (1975). In this case, then, the

circuit court was required to instruct the jury on gross

negligence unless the evidence was " 'clearly insufficient to

support [that] theory.' " Price, 251 Va. at 85, 466 S.E.2d at

89 (quoting Provident Life & Accident Ins. Co. v. Walker, 190

Va. 1016, 1028, 59 S.E.2d 126, 131 (1950)).

"[G]ross negligence," we recently reiterated, is "the

utter disregard of prudence amounting to complete neglect of

the safety of another. It is a heedless and palpable violation

of legal duty respecting the rights of others which amounts to

the absence of slight diligence, or the want of even scant

care." Volpe v. City of Lexington, 281 Va. 630, 639, 708

S.E.2d 824, 829 (2011) (quoting Chapman v. City of Virginia

Beach, 252 Va. 186, 190, 475 S.E.2d 798, 800-01 (1996)).

"Ordinarily, the question whether gross negligence has been

established is a matter of fact to be decided by a jury."

Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688,

691 (1987).

27
 Viewing the evidence in the light most favorable to

Gagnon, we believe that it was sufficient to submit the

question whether Burns was grossly negligent to the jury. Diaz

told Burns on the morning of the fight that, according to

messages sent through MySpace, Gagnon "was going to get into a

fight" sometime that day. Upon receiving Diaz' report, Burns

wrote down Gagnon's name and said that he would "alert

security," that "he would look into it," and that he would

"take care of it." In our view, the fact that Burns did not

respond to Diaz' report – or at least did not respond in time

to stop the fight – could possibly lead a jury to conclude that

he acted in "utter disregard of prudence amounting to a

complete neglect of [Gagnon's] safety," and thus was grossly

negligent. Koffman v. Garnett, 265 Va. 12, 15, 574 S.E.2d 258,

260 (2003) (quoting Ferguson v. Ferguson, 212 Va. 86, 92, 181

S.E.2d 648, 653 (1971)). We thus hold that the circuit court

erred in refusing to instruct the jury on gross negligence.

V.

We finally turn to Diaz' deposition. Burns challenged its

admissibility both at the plea in bar hearing and at trial.

Although we remand this case for a new trial, we nonetheless

address the objections that Burns made at both stages of the

case because they may arise again on retrial. See Dandridge v.

Marshall, 267 Va. 591, 595, 594 S.E.2d 578, 581 (2004).

28
 Burns first argues, as he did at both the plea in bar

hearing and trial, that Diaz' deposition was inadmissible under

Rule 4:7, because Diaz' unavailability was not proved by Gagnon

or found by the circuit court, and because the deposition was

taken in a previous action involving different parties. We

disagree.

We review a circuit court's decision to admit the

deposition of an absent witness under Rule 4:7 for an abuse of

discretion. Greater Richmond Transit Co. v. Massey, 268 Va.

354, 357, 601 S.E.2d 609, 611 (2004). That Rule, as relevant

here, provides:

(4) The deposition of a witness, whether or not a
party, may be used by any party for any purpose in any
action upon a claim arising at law . . . if the court
finds: . . . (B) that the witness is at a greater
distance than 100 miles from the place of trial or
hearing, or is out of this Commonwealth, unless it
appears that the absence of the witness was procured
by the party offering the deposition . . . .

. . . .

(7) In any action, the fact that a deposition has
not been offered in evidence prior to an interlocutory
decree or order shall not prevent its thereafter being
so offered except as to matters ruled upon in such
interlocutory decree or order; provided, however, that
such deposition may be read as to matters ruled upon
in such an interlocutory decree or order if the
principles applicable to after-discovered evidence
would permit its introduction.

Substitution of parties does not affect the right
to use depositions previously taken; and when there
are pending in the same court several actions or suits
between the same parties, depending upon the same

29
 facts, or involving the same matter of controversy, in
whole or in part, a deposition taken in one of such
actions or suits, upon notice to the same party or
parties, may be read in all, so far as it is
applicable and relevant to the issue; and, when an
action in any court of the United States or of this or
any other state has been dismissed and another action
involving the same subject matter is afterward brought
between the same parties or their representatives or
successors in interest, all depositions lawfully taken
and duly filed in the one action may be used in the
other as if originally taken therefor.

Diaz' deposition was admissible under these subsections if

(1) he was more than "100 miles from the place of [the] trial

or hearing, or [was] out of this Commonwealth"; (2) it was

taken in a previous "action involving the same subject matter"

as the present action; and (3) the present action is "between

the same parties" as the previous action. We conclude that all

of these conditions were met. First, the evidence showed, and

Burns did not challenge, that Diaz was on active military duty

in Georgia, which is both more than "100 miles from the place

of [the] trial and hearing" and "out of this Commonwealth."

Second, this action "involv[es] the same subject matter" as the

action in which the deposition was taken — namely, the fight

between Newsome and Gagnon. Third, this action is between

Gagnon and Burns and so was the action in which the deposition

was taken; it did not matter that the other parties changed.

We accordingly hold that the circuit court did not abuse

its discretion in admitting Diaz' deposition at the plea in bar

30
hearing or at trial, pursuant to Rule 4:7. Of course, if Burns

wishes to introduce any portion of the deposition on retrial,

Diaz' unavailability will again have to be established in

accordance with Rule 4:7's requirements.

Burns also contends that numerous statements in the

portions of Diaz' deposition that were admitted at both the

plea in bar hearing and trial should have been excluded by the

circuit court because they contained inadmissible hearsay.

Specifically, Burns points to Diaz' "substantive references" to

an affidavit that Diaz executed some months after the fight,

which detailed, among other things, his interactions with Burns

before and after the fight. In one admitted portion of the

deposition, Diaz "dr[ew] a blank" when asked by Gagnon's

counsel whether Burns said "[a]nything else . . . about what he

could have done," so Diaz reviewed the affidavit. The

following colloquy then occurred:

[Gagnon's counsel]: Let the record reflect
you're looking through your affidavit on that.

By [Gagnon's counsel]:

Q. What page are you on?

A. The last, third page.

Q. Okay.

A. I wish he [Burns] would have done something.

Q. That's what you said to him?

31
 A. That is what I said to him.

Q. That's what your affidavit says?

A. That is what my affidavit says.

Q. Is that affidavit correct?

A. It's a hundred percent correct.

We will not overturn a circuit court's decision to admit

or exclude evidence unless the court abused its discretion.

Gray v. Rhoads, 268 Va. 81, 86, 597 S.E.2d 93, 96 (2004). Here

we cannot say that the circuit court abused its discretion in

admitting the above-quoted portion or any of the other portions

of Diaz' deposition in which the affidavit is mentioned at

either the plea in bar hearing or trial.

We have long upheld the use of written materials to

refresh a witness's recollection. As we recently explained:

[W]hen a witness has a memory lapse on the stand and
forgets some portion (or even all) of the facts of the
matter about which [he or she is] called to testify, a
party may attempt to "refresh" the witness's memory by
having the witness examine materials relating to the
matter for which they are testifying. After examining
such materials, a witness may then speak to the facts
from his own recollection.

Ruhlin v. Samaan, 282 Va. 371, 379, 718 S.E.2d 447, 451 (2011)

(second alteration in original; some internal quotation marks

and citation omitted).

In this case, we think it clear that Diaz' examination of

the affidavit was for the sole purpose of refreshing his

32
recollection about what occurred between him and Burns after

the fight. It is equally clear that Diaz' review of the

affidavit did refresh his recollection, as he avers that his

statement, "I wish he [Burns] would have done something," was

"a hundred percent correct." Although it may have been

improper for Gagnon's counsel to ask Diaz if his answer was as

stated in the affidavit and for the circuit court not to redact

that portion of the deposition, Diaz did have an independent

recollection of the events, and his testimony was not hearsay.

In the other admitted portions of the deposition in which

the affidavit is mentioned, Diaz merely confirms that he

executed one and explains that he waited several months to do

so because he was afraid of retribution by the school. Also,

he acknowledges that he reviewed the affidavit in preparation

for the deposition and, when asked by Gagnon's counsel whether,

"[a]part from the affidavit, [he] still ha[s] an independent

recollection of what happened [on the day of the fight]," Diaz

answers, "Yes, I do." We do not believe that any of these

references to the affidavit by Diaz or Gagnon's counsel

presented a hearsay problem.

Burns further claims that the admitted portions of Diaz'

deposition contained four other statements that should have

been excluded by the circuit court as inadmissible hearsay. He

did not, however, object to those statements on hearsay grounds

33
at the plea in bar hearing. And for purposes of trial, he only

objected to three of them as inadmissible hearsay. We thus

only consider whether the circuit court abused its discretion

in admitting those three statements into evidence at trial.

In the first statement, Diaz testified that he waited

until June 2007 to execute the affidavit because he was afraid

"of retribution" "[b]y the school about this particular

incident." This statement was not hearsay, since it was made

by Diaz while he was testifying under oath during his

deposition – which, pursuant to Rule 4:7, is treated as live,

in-person testimony. Horne v. Milgrim, 226 Va. 133, 138, 306

S.E.2d 893, 895 (1983) (stating that deposition testimony

admitted into evidence under rule 4:7 "as substantive proof is

oral testimony, not an exhibit"); Stevenson v. Commonwealth,

218 Va. 462, 465, 237 S.E.2d 779, 781 (1977) (" 'Hearsay' is a

statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted." (quoting Unif. R.

Evid. 801(c)).

In the second statement, Diaz testified that he informed a

hall monitor after the fight that he had "told Vice Principal

Burns about this already. And she was like, let's go talk to

Dr. Beverage." This statement was not hearsay because it was

not offered to prove the truth of what the hall monitor said.

34
Id. Rather, it was introduced to show the actions Diaz took

following the fight.

And in the third statement, Diaz testified that he told

Beverage that Burns had said that "he was going to get security

on it before the fight." Although this statement was hearsay,

it was admissible under the party-admission exception to the

rule against hearsay. Goins v. Commonwealth, 251 Va. 442, 461,

470 S.E.2d 114, 127 (1996) ("A statement made by a party is

admissible in evidence against him.").

Since these three statements were either not hearsay or

admissible under a well-established exception to the rule

against hearsay, we hold that the circuit court did not abuse

its discretion in admitting them into evidence with the other

portions of Diaz' deposition.

VI.

Because the circuit court erred by holding that Burns is

not entitled to the protection of sovereign immunity under the

common law and by refusing Gagnon's proffered jury instruction

on gross negligence, we reverse in part and remand the case to

the circuit court for a new trial limited to Gagnon's gross

negligence claim against Burns. In light of this decision, we

do not reach the question raised by Gagnon's cross-appeal,

namely, whether intentional and negligent tortfeasors can be

held jointly and severally liable.

35
 Record No. 110754 – Affirmed in part,
reversed in part,
and remanded.

Record No. 110767 — Dismissed.

JUSTICE MIMS, concurring in part and dissenting in part.

I agree with most of the majority opinion. However, I

disagree with its determination that Burns is immune under the

common-law doctrine of sovereign immunity and thus I must

dissent from Part III(B) and would not reach the issue of the

gross negligence jury instruction considered in Part IV.

The majority determines that the fourth prong of the test

for sovereign immunity applied in Lentz v. Morris, 236 Va. 78,

82, 372 S.E.2d 608, 610 (1988), is met because Burns had to

decide whether, when, and how to respond to Diaz’s warning. It

therefore concludes that his failure to notify the school’s

security personnel about the danger involved the exercise of

judgment and discretion, and consequently was not simply a

ministerial act. However, in my view, Burns’ statement to Diaz

that he would “alert [his] security and we’ll make sure this

problem gets taken care of” reflects that he had already

exercised his discretion and decided whether and how to

respond. All that remained was to put the course of action he

had decided upon into execution. Consequently, the

discretionary portion of his response had been fully discharged

36
and his failure to execute the decision he had made was as much

a failure to perform a ministerial act as if he had delegated

it to a subordinate who thereafter disobeyed his order.

I acknowledge that under ordinary circumstances an

official’s discretion may include not only the capacity to make

a decision in the first instance but also to change his mind

and make a new, even contradictory decision, at a later time.

But there is no evidence in this case that Burns first decided

to alert security and subsequently changed his mind. Moreover,

Burns’ statement assured Diaz that “this problem [would be]

taken care of,” thereby potentially deterring the student from

warning other administrators who might have decided, as Burns

did, to alert security but who actually would have followed

through on that decision as well.

I therefore believe that Burns’ failure to notify security

was the failure to perform a ministerial act and would hold

that the test for sovereign immunity was not met.

Consequently, the jury need not have decided whether Burns’

inaction was gross negligence and the circuit court was not

obliged to instruct them on it.

37