Taboada v. Daly Seven, Inc.

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 2nd day March,
2007.

Ryan Taboada, Appellant,

against Record No. 051094
Circuit Court No. CL0301075

Daly Seven, Inc., Appellee.

Upon a Petition for Rehearing

On March 3, 2006, this Court rendered a judgment in favor of

Ryan Taboada, reversing in part the judgment of the trial court

sustaining Daly Seven, Inc.’s demurrer, and remanding the case for

further proceedings. Taboada v. Daly Seven, Inc., 271 Va. 313, 626

S.E.2d 428 (2006). On March 27, 2006, counsel for Daly Seven, Inc.

filed a petition for rehearing. In an order dated August 11, 2006,

for reasons not pertinent to the merits of this case, we struck the

petition for rehearing and permitted Daly Seven, Inc. to file

another petition for rehearing. Taboada v. Daly Seven, Inc., 272
Va. 211, 216, 636 S.E.2d 889, 891 (2006). Daly Seven, Inc. filed a

new petition for rehearing on August 31, 2006. By an order entered

November 17, 2006, this Court awarded Daly Seven, Inc. a rehearing

pursuant to the provisions of Rule 5:39(e), but in doing so, did not

set aside the judgment previously rendered on March 3, 2006.

Now, therefore, in consideration of the record, the briefs

originally filed by the parties, the petition for rehearing of Daly

Seven, Inc. filed pursuant to this Court’s order of August 11, 2006,

the response of Ryan Taboada to that petition, and the argument of

the parties, the Court is of the opinion that, for the reasons
stated in the opinion in this case dated March 3, 2006, the judgment

of this Court should not be set aside. Accordingly, we will affirm

the judgment of the trial court sustaining the demurrer to Ryan

Taboada’s claim under Code § 35.1-28, reverse the judgment of the

trial court sustaining the demurrer to Ryan Taboada’s common law

claim, and remand the case for a trial on the merits of that claim.

JUSTICE AGEE, with whom JUSTICE KINSER joins, concurring in part and
dissenting in part.

As the majority opinion accurately recites, this appeal arises

from the circuit court’s judgment sustaining Daly Seven’s demurrer

to Taboada’s amended motion for judgment alleging Daly Seven was

liable for injuries Taboada sustained as a result of Derrick Smith’s

criminal conduct. While I agree with the majority opinion as to the

disposition of Taboada’s claim under Code § 35.1-28, I respectfully

disagree that Taboada stated a common law claim for negligence

cognizable in Virginia under the facts alleged. In my view, the

majority opinion is in error for at least two reasons. First, the

majority misreads the standard our precedent has applied to the duty

of a common carrier to its passengers, which is the basis for the

duty it now imposes on innkeepers. Second, even if the standard

derived by the majority was supported by our case law, the majority

applies that standard in this case in a manner inconsistent with the

common carrier cases.

As a general rule, “the owner or possessor of land is under no

duty to protect invitees from assaults by third parties while the

invitee is upon the premises.” E.g., Wright v. Webb, 234 Va. 527,
2
530, 362 S.E.2d 919, 920 (1987); Yuzefovsky v. St. John’s Wood

Apartments, 261 Va. 97, 106, 540 S.E.2d 134, 139 (2001). A narrow

exception to this rule recognizes a cause of action when the

plaintiff can establish that a special relationship exists between

the defendant and either the plaintiff or the third party criminal

actor, such that the defendant owes a duty of care to warn or

protect the plaintiff from the danger of harm by the third party’s

criminal acts. Yuzefovsky, 261 Va. at 107, 540 S.E.2d at 139-40;

Thompson v. Skate America, Inc., 261 Va. 121, 129, 540 S.E.2d 123,

127 (2001). Because Taboada was a registered guest of Daly Seven at

the time of the assault, this case does involve a special

relationship previously recognized in our case law. Thompson, 261

Va. at 129, 540 S.E.2d at 127 (“[E]xamples of such necessary special

relationships that arise as a matter of law . . . include a common

carrier and its passengers, an employer and its employees, an

innkeeper and its guests, and a business owner and its invitees.”)

However, the existence of a special relationship alone does not

establish any liability on the part of a defendant. A potential

plaintiff must establish that the “special relationship also gave

rise to a duty of care on the part of [the defendant] to protect

[the plaintiff] from the danger of harm from the criminal act of

[the third party].” See id. “The question whether a duty of care

exists in a negligence action is a pure question of law.” Burns v.

Johnson, 250 Va. 41, 45, 458 S.E.2d 448, 451 (1995).

As the majority observes, this case presents the first occasion

the Court has opined on the merits regarding an innkeeper’s

liability in tort when the plaintiff was a guest of the innkeeper at
3
the time he was the victim of a third party’s criminal act. The

Court has, however, examined this issue in the context of other

“special relationships that arise as a matter of law.” Pertinent to

the analysis of the innkeeper’s duty is our decision in Wright,

where the plaintiff was the victim of a criminal act on the

innkeeper’s premises, but had the status of “business invitee”

rather than “guest.” We held in Wright that

a business invitor, whose method of business does not
attract or provide a climate for assaultive crimes, does
not have a duty to take measures to protect an invitee
against criminal assault unless he knows that criminal
assaults against persons are occurring, or are about to
occur, on the premises which indicate an imminent
probability of harm to an invitee.

Id. at 533, 362 S.E.2d at 922; see also Gupton v. Quicke, 247

Va. 362, 442 S.E.2d 658 (1994).

In Wright, the Court enunciated the standard of “imminent

probability of harm” from its analysis of the same cases the

majority cites concerning a common carrier’s duty to a

passenger. We determined in Wright that a condition precedent

for the common carrier’s duty established by case law was

“notice of a specific danger just prior to the assault.” Id.
at 533, 362 S.E.2d at 922.

Prior to articulating the “notice of a specific danger just

prior to the assault” and “imminent probability of harm” standard,

we declined to adopt a general affirmative duty to protect invitees

because “acts of assaultive criminal behavior cannot reasonably be

foreseen.” Id. at 531, 362 S.E.2d at 921. Under ordinary

circumstances, “it would be difficult to anticipate when, where, and

how a criminal might attack.” Id.; see also A.H. v. Rockingham
4
Publ’g Co., 255 Va. 216, 222, 495 S.E.2d 482, 486 (1998). Thus,

“imminent probability of harm” and “reasonably foreseeable” are

interconnected concepts, and – at least in determining liability in

Wright and subsequent cases involving the business owner-invitee

relationship – the foreseeability of a particular criminal act was

analyzed in terms of the business owner’s knowledge that assaults

“are occurring, or are about to occur . . . indicat[ing] an imminent

probability of harm to an invitee.” See, e.g., Wright, 234 Va. at

533, 362 S.E.2d at 921-22; Burns, 250 Va. at 43-45, 458 S.E.2d at

449-50 (assault at gas station).

Our later cases show a similar understanding. In Thompson,1 we

held that the plaintiff alleged facts sufficient to show that the

operator of a roller skating rink owed him a duty of care because

“it [was] alleged that a specific individual was known to [that

defendant] to be violent and to have committed assaults on other

invitees on its property in the recent past” prior to that

individual’s attack the plaintiff. Id. at 130, 540 S.E.2d at 128.

While in Wright, and other cases, we have declined to
“impose liability for negligence based solely upon . . . a
background” of prior criminal activity on the defendant’s
premises or in its vicinity by unknown persons, here the
circumstances are quite different. Indeed, the
allegations in Thompson’s motion for judgment plainly
state that Skate America had specific knowledge of
Bateman’s propensity to assault its other invitees, had
intervened to inhibit that behavior in the past, and had
taken steps to avoid a reoccurrence of that behavior in
the future. Thus, taking these allegations as true on
1
In Thompson, the plaintiff was skating at the defendant’s
rink when another patron assaulted him. Thompson’s motion for
judgment alleged his assailant had previously caused numerous
“disturbances, arguments and fights” at the rink, had been ejected
and banned by the defendant from reentry on multiple occasions, and
was supposedly banned from the rink at the time of the assault. 261
Va. at 124-25, 540 S.E.2d at 124-25.
5
 demurrer, we are of opinion that the allegations as to
Bateman’s presence on Skate America’s premises were
sufficient to state a claim that Skate America was on
notice specifically that Thompson was in danger of being
injured by Bateman in a criminal assault. The “imminent
probability” of that harm, as characterized in Wright, is
merely a heightened degree of the “foreseeability” of that
harm and here we are of opinion that the specific
allegations concerning the knowledge Skate America had of
Bateman’s prior violent conduct satisfied the necessary
degree of foreseeability.

Id. (internal citation omitted).

In a case decided the same day as Thompson, Dudas v. Glenwood

Golf Club, Inc., 261 Va. 133, 540 S.E.2d 129 (2001),2 the Court

rejected the plaintiff’s argument based on A.H. that “where there

are prior similar criminal attacks, the issue becomes whether the

plaintiff’s injury was reasonably foreseeable.”3 Dudas, 261 Va. at

139, 540 S.E.2d at 132. The Court explained that its “analysis in

A.H. focused on the particular special relationship and the

surrounding circumstances at issue there and did not modify [the]

holding in Wright concerning the potential duty of care owed by a

business invitor to its invitee with regard to criminal acts

committed by third parties on its premises.” Id. Instead, the

Court relied upon the analysis in Wright, noting, “[i]n applying
that exception [to the general rule of no liability], careful

2
In Dudas, the plaintiff was playing golf on the defendant’s
course when “two unknown male trespassers” robbed him at gunpoint.
“Two armed robberies and one attempted robbery of business invitees
had occurred” on the premises in the preceding month, and another
robbery had occurred more than seventeen months prior to this
incident. 261 Va. at 136, 540 S.E.2d at 131.
3
In A.H., the plaintiff was assaulted while delivering papers
for his employer, the defendant. The Court held the employer had no
duty to protect the plaintiff from a third party’s assault when the
evidence showed there had been three prior assaults on the
defendant’s employees “in the five years preceding the assault on
the plaintiff.” 255 Va. at 222, 495 S.E.2d at 486.
6
analysis of particular factual patterns in subsequent cases must be

used to avoid permitting the narrow exception to swallow the general

rule.” Id. at 139, 540 S.E.2d at 132-33. The Court stated the

proper inquiry was “whether this previous criminal activity was

sufficient to ‘lead a reasonable person . . . to conclude that there

was an imminent danger of criminal assault’ to the plaintiff.” Id.

at 140, 540 S.E.2d at 133 (quoting Wright, 234 Va. at 533, 362

S.E.2d at 922). Accordingly, the Court concluded the prior criminal

acts were insufficient to cause a “reasonable business owner to

conclude that its invitees were in imminent danger of criminal

assault, and there was certainly nothing to indicate that Dudas in

particular was in such danger.” Id. at 140, 540 S.E.2d at 133.

And, in Yuzefovsky, the Court assumed, without deciding, that

the plaintiff tenant alleged facts sufficient to show a special

relationship between himself and the landlord. Where that

relationship is established, the Court held that the same duty of

care applies to a landlord-tenant relationship as applies to

business owners and their invitees. Id. at 109, 540 S.E.2d at 141

(quoting Wright, 234 Va. at 533, 362 S.E.2d at 922). In concluding

that Yuzefovsky failed to establish that his landlord had a duty to

protect him from the assault, the Court noted the motion for

judgment did not allege “that [the landlord] knew that criminal

assaults against persons were occurring, or were about to occur, on

the premises that would indicate an imminent probability of harm to

[the plaintiff] or another tenant.” Id.
In the case at bar, the majority summarily rejects the imminent

probability of harm standard consistently applied in the business
7
owner-invitee context, finding:

[I]t is simply not applicable to the potential duty of

care owed to a guest as a result of the special

relationship of innkeeper and guest. And, in the context

of that special relationship [the relationship of

innkeeper and guest], we equate ‘notice of a specific

danger’ with the concept of a reasonably foreseeable

danger and not with the degree of knowledge of criminal

assaults that indicate ‘an imminent probability’ of harm.

See Skate America, 261 Va. at 130, 540 S.E.2d at 129

(“imminent probability” of harm is a heightened degree of

foreseeability).

Taboada v. Daly Seven, 271 Va. 313, 327, 626 S.E.2d 428, 435 (2006).

The majority’s rationale for doing so is its conclusion that

“[g]iven 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 the guest against reasonably foreseeable injury from the

criminal conduct of a third party” as that of a common carrier to

its passenger. Id. at 326-27, 626 S.E.2d at 434-35. I do not

believe our jurisprudence regarding common carrier liability

supports the majority’s conclusion.

Although the common carrier cases do not use the exact

“imminent probability of harm” language from Wright, those cases

reflect a narrow application of when the criminal conduct of a third

party is reasonably foreseeable so as to trigger a duty on behalf of
8
the carrier. Immediately before enunciating the “imminent

probability of harm” standard in Wright, the Court reviewed the

common carrier cases upon which the majority now relies. We found

no broad “foreseeability” standard because “[i]mplicit in . . .

common carrier cases is the element of notice of a specific danger

just prior to the assault.” Wright, 234 Va. at 533, 362 S.E.2d at

922. That standard has not changed in the twenty years since Wright

and cannot now be ignored to create a broad “reasonably foreseeable”

standard, as the majority posits. As the following analysis of the

common carrier cases shows, a “reasonably foreseeable” standard has

always been read in the context of whether a “specific danger just

prior to the assault” was known to the defendant carrier.

“[I]mminent probability of harm” in Wright was simply another way of

expressing the standard of “specific danger just prior to the

assault” from the common carrier cases.

For example, in Connell v. Chesapeake & Ohio Ry. Co., 93 Va.

44, 24 S.E. 467 (1896), the Court held the circuit court did not err

in sustaining the defendants’ demurrer to a motion for judgment

alleging they were negligent in failing to protect a passenger from

being assaulted and killed by a third party while on the train. Id.
at 53-55, 24 S.E. at 467-68. The Court noted that the plaintiff did

not allege that the defendants “knew that any danger impended over

the [victim], or that there was any circumstance to arouse their

suspicion” prior to the assault. Id. at 56, 24 S.E. at 468.

Furthermore, the Court stated that the defendants could not have

been required to anticipate such an event because such a requirement

would “require of [the defendants] more than human foresight as to
9
the minds and motives of men, and make them indeed insurers of the

safety of passengers, while under their care, against all dangers,

however remotely connected with their acts of omission or

commission.” Id. at 59, 24 S.E. at 469. Accordingly, in finding no

error in the circuit court’s dismissal of the claim, the Court

declared that common carriers

should be held responsible to a passenger for injuries

received at the hands of an intruder, a stranger, or a

fellow-passenger only in those cases where its agents or

employees knew, or, in light of surrounding circumstances,

ought to have known, that danger was threatened, or to be

apprehended, and then failed to use their authority and

power to protect him from the impending peril.

Id. at 62-63, 24 S.E. at 470-71 (emphasis added).

The Court found that a common carrier failed to fulfill this

duty in Hines v. Garrett, 131 Va. 125, 108 S.E. 690 (1921). There,

the Court held that the circuit court did not err in finding the

defendant liable for damages suffered by the plaintiff when she was

raped after being “required to leave the defendant’s train in a

dangerous and unprotected place.” Id. at 129, 108 S.E. at 691.
“[B]earing in mind the high degree of care due by a carrier to its

passengers,” the Court concluded the jury could have found that the

assault upon the plaintiff was “proximately caused by her wrongful

ejection from the train.” Id. at 136-37, 108 S.E. at 693-94. The

Court observed that the carrier “is bound to know the character of

the place at which it wrongfully discharge[d]” its passengers, and
10
the evidence showed the location to be “infested by worthless,

irresponsible and questionable characters known as tramps and

hoboes.” Id. at 138-39, 108 S.E. at 694. The common carrier was

liable not because it breached a duty of foreseeability as to the

passenger’s safety within the train itself or elsewhere on the

carrier’s property, but because the carrier committed an affirmative

act of negligence in discharging the plaintiff from the train.

In Norfolk & W. R. Co. v. Birchfield, 105 Va. 809, 54 S.E. 879

(1906), an agent of the defendant was present at the time a third

party assaulted the plaintiff inside a railroad car, yet the agent

failed to take adequate measures to protect the plaintiff from the

third party. Id. at 819-21, 54 S.E. at 883-84. The Court observed

the evidence showed “that the conductor must have heard the

altercation, and that it was of a character that should have warned

him that it was his duty to interpose” in order to fulfill its duty

to “carry safely those whom they take into their coaches in so far

as human care and foresight can provide.” Id. at 821, 54 S.E. at

883.

In contrast, in Virginia R. & Power Co. v. McDemmick, 117 Va.
862, 86 S.E. 744 (1915), the Court held that the circuit court erred

in refusing a jury instruction that would have required the jury to

find for the defendant if the attack upon the plaintiff by a third

party was “unexpected and inflicted at a time when the servants of

the defendant were unable to protect him.” Id. at 866-68, 86 S.E.
at 746. The Court reviewed the general proposition that common

carriers are not “insurer[s] of their [passengers’] safety,”

although they are “held to the highest degree of care and diligence
11
in guarding their safety.” Id. at 869, 86 S.E. at 747. The Court

reviewed the evidence and noted that it did not “appear that prior

to [the assault] the conduct or bearing of the [third party], though

insolent and very disagreeable, could reasonably have been regarded

as menacing the safety of the passengers on the car.” Id. at 867,

86 S.E. at 746. Thus, the jury “might have believed from the

evidence that the injury to the plaintiff was unexpected,” which

would require them to find for the defendant. Accordingly, the

Court held the circuit court erred in denying the instruction. Id.

at 871, 86 S.E. at 747.

In each of these cases, the defendants’ knowledge of a specific

danger of impending peril determined whether they owed a duty of

care to the plaintiffs. Connell, Birchfield, and McDemmick all

support the conclusion in Wright that the proper standard to measure

the duty owed by a common carrier to a passenger is contingent upon

notice of a “specific danger just prior to the assault.” Wright,

234 Va. at 533, 362 S.E.2d at 922. Consequently, the majority’s

reliance on the common carrier cases to establish an unconditional

“reasonably foreseeable” standard to measure the duty of care owed

by an innkeeper is not supported by the standard applied to

carriers. Accordingly, I believe the majority errs in imposing a

standard of foreseeability to measure the duty of an innkeeper that

is inconsistent with the duty we have applied to a common carrier.

Those cases, as we concluded in Wright, read foreseeability as
requiring notice of a “specific danger just prior to the assault,”

which is equivalently stated as requiring knowledge of an “imminent

probability of harm.”
12
 The majority does not argue that if the standard for duty of

care articulated in Wright is applied in this case, the circuit

court incorrectly ruled on the demurrer. To the contrary, it is

readily evident that under a standard requiring an innkeeper to have

“notice of a specific danger just prior to the assault” so that “an

imminent probability of harm to an invitee” is known, Taboada has

failed to plead facts sufficient to meet that standard. The circuit

court’s judgment is thus not erroneous when reviewed in the context

of the standard under Wright, which should be the applicable

standard in this case for the reasons outlined above.

Even if the majority were correct in deriving the standard of

care from the common carrier cases it now applies to Daly Seven, the

application of that standard under the circumstances of this case is

not supported by our precedent. This is so, in part, because no

common carrier case, the majority’s foundation for innkeeper

liability, has imposed an elevated duty upon the carrier outside the

confines of its vehicle or property in an area generally accessible

to the public. While the innkeeper-guest relationship may be

analogous in some circumstances to a common carrier-passenger

relationship when the guest is in his or her room, it is inapposite

for determining the duty of care owed a guest in other areas of an

inn readily accessible by the public, such as Daly Seven’s outside

parking lot.

The majority correctly recites from Birchfield and Connell our
prior language that a common carrier owed its passengers a duty of

“utmost care and diligence.” In imposing an equivalent duty upon an

innkeeper, however, the majority neglects to put the discussion in
13
the context in which it occurred in the common carrier cases. The

context makes an important and substantial difference because the

elevated duty ascribed to the common carrier is uniformly restricted

to “those whom [the carriers] take into their coaches.” Birchfield,

105 Va. at 821, 54 S.E. at 883; Connell, 93 Va. at 55, 24 S.E. at

468.4

As noted above, in all but one of the cases analyzing liability

for the criminal acts of a third party within the context of a

common carrier-passenger relationship, the alleged criminal act

occurred within the confined area of the carrier’s vessel, an area

not accessible to the public. Only in Hines did an attack occur

outside of the train car and engender liability on the part of the

common carrier. However, as described earlier, Hines is clearly

distinguishable from the other common carrier cases and the case at

bar because it involved an affirmative act by the defendant to

expose the plaintiff to criminal assault by discharging the

plaintiff from the train. As we noted in Wright, the carrier’s

“affirmative act of negligence in ejecting the passenger at a

dangerous place” distinguishes Hines, so it is inapplicable in the
context of the other common carrier cases. Wright, 234 Va. at 532,
362 S.E.2d at 922.

4
Although not a common carrier case, Crosswhite v. Shelby
Operating Corp., 182 Va. 713, 30 S.E.2d 673 (1944), is cited by the
majority, but does not support the majority’s conclusion. In fact,
Crosswhite is consistent with the limitation of the common carrier’s
duty to “those whom they take into their coaches,” Birchfield, 105
Va. at 821, 54 S.E. at 883; Connell, 93 Va. at 55, 24 S.E. at 468,
because the negligent act alleged in Crosswhite was within the
guest’s room. Id. at 714-16, 30 S.E.2d at 673-74. Thus, in areas
accessible to the general public, the more analogous relationship
for determining an innkeeper’s duty is not that of a common carrier
14
 Thus, the common carrier cases upon which the majority relies

to fashion its rule of liability only find a duty on the part of the

common carrier for criminal acts of a third party within the

confines of the carrier: an area only accessible to the passenger

and not to the public. No case imposes a duty on the carrier and

resulting liability for breach where the plaintiff passenger is, for

example, in the parking lot of a train station, at a bus station, or

an airport concourse. These areas, like the outdoor premises in a

hotel parking lot, are accessible by guests and the public and are

not areas where our common law has found an elevated duty on behalf

of the defendant common carrier to warn or protect the passenger or

guest from third party assaults.5

The majority’s failure to apply the appropriate standard and to

recognize the limitation of duty in publicly accessible areas also

produces an inequitable and unjustifiable paradox. Comparing the

facts and outcomes in Wright and the case at bar readily reveals

this conundrum.

For example, assume Individual A parks her car in a hotel

parking lot, steps inside the hotel to ask directions, and returns

to her car, where she is assaulted by a third party. Individual B

parks his car in the hotel parking lot space next to Individual A,

checks into the hotel at the same time, and returns to his car to

get luggage, where he is assaulted by the same third party who is

attacking Individual A. Assuming the same factual allegations as

and passenger, but that of the business owner and invitee.
5
A common carrier may indeed be liable in such circumstances
if the facts so warrant, but under the standard set out in Wright,
not the unrestricted foreseeability standard posited by the
15
Taboada makes here, under the analysis adopted in Wright and by the

majority, the hotel may be liable to Individual B, but not

Individual A although assaulted by the same perpetrator at the same

time and place.

Similarly, if a hotel, conference center, grocery store, and

service station operate within close proximity of each other with

adjoining parking lots and identical histories of criminal conduct

on their premises, distinctly different results arise under the

majority’s analysis. A guest assaulted at the hotel could have a

cause of action against the hotel, but no cause of action would lie

against the owners of the other facilities for similar acts by the

same assailant at the same time.

The majority’s standard for foreseeability appears to make the

innkeeper a de facto insurer of his guest’s safety and thereby

imposes a standard above that placed on a common carrier in a

similar context. In some respects, the innkeeper now has a higher

degree of liability than a common carrier because the innkeeper is

liable for assault in its outside parking area where no common

carrier has been held to a similar standard.

In conclusion, I believe the majority is in error because the

common carrier cases do not support the standard that it now applies

to innkeepers. Furthermore, even if the majority’s standard were

appropriate, it has not been applied to a common carrier for acts

outside the carrier’s vessel in areas accessible to the public, such

as Daly Seven’s outside parking lot. For these reasons, I find our

jurisprudence does not support the conclusion that Daly Seven had a

majority. 16
duty to protect Taboada from Smith’s attack. Therefore, I

respectfully dissent and would affirm the circuit court’s judgment

as to Taboada’s claims under Code § 35.1-28 and the common law.

This order shall be published in the Virginia Reports and shall

be certified to the Circuit Court of the City of Roanoke.

A Copy,

Teste:

Patricia L. Harrington, Clerk

17