Taboada v. Daly Seven, Inc.

Present: All the Justices

RYAN TABOADA
OPINION BY
v. Record No. 051094 JUSTICE LAWRENCE L. KOONTZ, JR.
March 3, 2006
DALY SEVEN, INC.

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge

In this appeal, we consider whether the trial court erred

in sustaining demurrers to a motion for judgment and an amended

motion for judgment against an innkeeper for injuries sustained

by a guest as the result of a criminal assault by a third party

while on the innkeeper’s property. In so doing, we consider as

an issue of first impression what duty of care is owed by an

innkeeper to a guest for injuries caused by a third party.

BACKGROUND

The principles of appellate review that guide our

consideration of this appeal are well-settled. “A demurrer

admits the truth of the facts contained in the pleading to which

it is addressed, as well as any facts that may be reasonably and

fairly implied and inferred from those allegations. A demurrer

does not, however, admit the correctness of the pleader’s

conclusions of law.” Yuzefovsky v. St. John’s Wood Apts., 261

Va. 97, 102, 540 S.E.2d 134, 136-37 (2001) (internal citation

omitted). Accordingly, we will consider the facts stated, and

those reasonably and fairly implied and inferred, in the two
motions for judgment in this case in a light most favorable to

the plaintiff, but we will review the sufficiency of the legal

conclusions ascribed to those facts de novo.1 Id. Applying this

standard, the relevant facts and legal conclusions in the

plaintiff’s motions for judgment are as follows.

Daly Seven, Inc. owns and operates hotels in Virginia

including a Holiday Inn Express located in downtown Roanoke. At

approximately 2 a.m. on March 27, 2003, Ryan Taboada and his

family arrived at the Holiday Inn Express seeking lodging for

the night. Taboada had selected the hotel relying, in part,

upon the hotel’s representation that the hotel was a “safe,

secure, and reliable place to lodge.” Taboada registered as a

guest at the hotel and was assigned a room.

Taboada then returned to his vehicle in the hotel’s parking

lot where his wife and two children were waiting and began to

unload the family’s luggage. Derrick W. Smith, who was not a

guest at the hotel, approached Taboada and demanded money from

1
As will be more fully related hereafter, this case
involves appeals from the trial court’s orders sustaining two
demurrers: the first to an original motion for judgment filed
by a guest against the owner of a hotel in which statutory and
common law negligence claims were asserted and a subsequent one
to an amended motion for judgment in which only the common law
claim was asserted. In light of this circumstance, our
references to the factual allegations are to be understood in
the context of the pertinent motion for judgment. See Fuste v.
Riverside Healthcare Ass’n., 265 Va. 127, 129-30, 575 S.E.2d
858, 860 (2003).
2
him. Smith then, immediately and without provocation, began to

fire a weapon at Taboada. Taboada was wounded eight times,

suffering severe bodily injuries. Smith took a wristwatch from

Taboada’s seven-year-old son and stole the family’s vehicle;

Taboada’s infant daughter was still in her car seat in the

vehicle at the time. Police apprehended Smith, recovered the

vehicle, and rescued the infant, who was not physically harmed.

On September 24, 2003, Taboada filed his original motion

for judgment in the Circuit Court of the City of Roanoke (trial

court) against Daly Seven seeking $3,000,000 in compensatory

damages for the injuries he sustained as the result of Smith’s

criminal act. In addition to a common law negligence claim,

Taboada asserted a statutory claim against Daly Seven based on

the duties imposed on innkeepers by Code § 35.1-28. The trial

court sustained Daly Seven’s demurrer to both claims. With

respect to the statutory claim, the trial court ruled that Code

§ 35.1-28(E) “unmistakably proclaims that the duties arising

[under the statute] have no application in personal injury

cases.” Accordingly, while granting Taboada leave to file an

amended motion for judgment with respect to the common law

claim, the trial court dismissed the statutory claim with

prejudice and without leave to amend.

On September 21, 2004, Taboada filed an amended motion for

judgment in which he again asserted his common law negligence

3
claim against Daly Seven premised upon the innkeeper’s breach of

a duty of care owed to Taboada as a guest. Taboada expanded

upon his factual allegations from the original motion for

judgment and increased his claim for compensatory damages to

$5,000,000.

Taboada alleged that Daly Seven had misrepresented that the

Holiday Inn Express was located in a “safe” area when, in fact,

Daly Seven “knew that the location of the Holiday Inn Express

was in a high crime area, that it attracted assaultive crimes,

that criminal assaults against employees and guests were

occurring, that criminal assaults would continue to occur, and

that the business provided a known target for repeat criminal

activity including assaultive crimes on employees and guests.”

In support of this allegation, Taboada alleged that “[f]rom

January 1, 2000 through March 26, 2003, [Daly Seven] regularly

called the Roanoke City Police Department on at least 96

occasions to report the presence of trespassers who refused to

leave the premises, the presence of suspicious persons on the

premises, larcenies, disorderly persons, suspicious

circumstances, and suspected drug offenses. Included in such

reports by [Daly Seven] were reports of robberies, malicious

woundings, shootings, and other such criminally assaultive acts

requiring the attention of the Roanoke City Police Department.”

Taboada alleged that these facts “specifically placed [Daly

4
Seven] on notice that uninvited persons regularly came upon the

parking lot and property of [Daly Seven] and created a risk of

imminent harm to the person of the employees of [Daly Seven] and

to the person of its guests.”

Taboada further alleged that Daly Seven “was informed by

the Roanoke City Police Department and by others that its guests

were at a specific imminent risk for harm to their persons from

uninvited persons coming into or upon its property and that to

avoid this imminent risk [Daly Seven] needed to retain the

services of uniformed security guards.” Taboada alleged that

Daly Seven had at one time employed uniformed security guards to

patrol the hotel and its parking lot during the overnight hours,

but that it had discontinued this practice “in favor of saving

expenses.”

Taboada premised Daly Seven’s liability for his injuries on

the legal theory that Daly Seven owed its guests a “standard of

care under the circumstances in which [Daly Seven] operated the

Holiday Inn Express.” According to Taboada, that standard of

care

required [Daly Seven] to have uniformed security
guards in place at least between the hours of 10:00
p.m. and 4:00 a.m. seven (7) days a week for the
purpose of protecting its guests from the known risk
of imminent harm from assaults from third persons. In
addition, the standard of care required [Daly Seven]
to have in place video cameras clearly identifying
unusual or criminal activity which might occur in
close proximity to the main entrance to its business

5
 so that it could provide assistance to guests who
intended to register or who had just completed
registration during the hours between 10:00 p.m. and
4:00 a.m. The requirement for video cameras was in
direct response to the known risk that guests were in
imminent danger of assaults in parking and attempting
to enter the premises for purposes of checking in or
for guests who had checked in and were returning from
the lobby to their vehicles in order to travel to
their rooms.

Taboada alleged that had Daly Seven continued to employ

uniformed security guards, the guards “would have been able to

see the assailant prior to the time of the assault [and] would

have been able to stop the assailant before the attack and

direct him to leave the premises or, in the alternative, would

have been able to warn [Taboada] of the approach of the

assailant in time for [Taboada] to protect himself and his

family.” Taboada further contended that use of a security

camera would have afforded similar protection.

On October 13, 2004, Daly Seven filed a demurrer to

Taboada’s amended motion for judgment. Daly Seven asserted that

it “did not have a duty to protect [Taboada] from the

intentional criminal assault of a non-employee under the

allegations” of the amended motion for judgment. Citing

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

123, 127 (2001), Daly Seven asserted that the amended motion for

judgment failed to state a common law negligence claim against

it because Taboada failed to allege that Daly Seven “knew that

6
criminal assaults against persons [were] occurring or about to

occur on the premises which indicate[d] an imminent probability

of harm and that such knowledge constituted notice of a specific

danger just prior to the assault.” (Internal quotation marks

omitted).

On February 24, 2005, the trial court entered a final order

sustaining Daly Seven’s demurrer and dismissing the amended

motion for judgment with prejudice, adopting by reference the

reasons stated in an opinion letter dated February 13, 2005. In

that opinion letter, the trial court, relying on Yuzefovsky,

opined that in “a suit against the owner of the property where

[a criminal] attack occurred . . . the plaintiff [must] set

forth facts from which the trier of fact could find that the

innkeeper knew ‘that criminal assaults against persons [were]

occurring, or [were] about to occur, on the premises which

indicate[d] an imminent probability of harm.’ ” Yuzefovsky, 261

Va. at 109, 540 S.E.2d at 141. The trial court ruled that

Taboada had failed to “set forth facts from which [the trial

court could] at least infer that the innkeeper should have

foreseen the type of criminal activity of which Taboada was a

victim.” Accordingly, the trial court determined that Taboada

7
had failed to adequately plead facts in support of his common

law claim of negligence.2

DISCUSSION

Although raised as the last of his four assignments of

error, we first address Taboada’s assertion that the trial court

erred in sustaining the demurrer to the statutory claim under

Code § 35.1-28 and dismissing that claim with prejudice. We do

so, before addressing the remaining assignments of error

directed to Taboada’s common law claim, in order to determine

whether the enactment of this statute changed or altered the

common law with respect to a duty of care owed by an innkeeper

to a guest for injuries caused by the intentional acts of third

parties.

The duty of care owed by an innkeeper “to take reasonable

precautions to protect the persons and property of [his] guests”

is defined, and the innkeeper’s liability is limited, by Code

§ 35.1-28. In summary, the duties prescribed and the limits of

monetary loss provided for in that statute relate to the

provision of adequate locks on doors and windows, and are

2
In the February 13, 2005 opinion letter, the trial court
also adopted by reference its prior ruling sustaining the
demurrer to Taboada’s statutory claim under Code § 35.1-28 in
the original motion for judgment, for which leave to amend had
not been granted. Thus, the final order addressed both claims,
and Taboada’s objection to that order preserved both issues for
appeal.
8
principally directed to the prevention of the loss of personal

property of the guest. See Code § 35.1-28(B)-(D). However, as

relevant to the issues raised in this appeal, Code § 35.1-28(E)

makes plain that the duties prescribed, and the limitation of

liability afforded, by the statute do not “change or alter the

principles of law concerning a hotel’s liability to a guest

. . . for personal injury.” Thus, with respect to the specific

facts of this case, the duty of care owed to Taboada by Daly

Seven with respect to protecting him from injury as the result

of a criminal assault by a third party is not governed by the

provisions of the statute, but remains governed by the common

law. See Couplin v. Payne, 270 Va. 129, 136, 613 S.E.2d 592,

595 (2005); Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d

301, 302 (1988). Accordingly, we hold that the trial court’s

judgment sustaining Daly Seven’s demurrer to Taboada’s statutory

claim under Code § 35.1-28 was correct.3

3
We recognize that in Crosswhite v. Shelby Operating Corp.,
182 Va. 713, 716, 30 S.E.2d 673, 674 (1944), an innkeeper-guest
liability case arising from a personal injury alleged to have
been caused by a defective condition of the hotel property, we
said, referring to former Code § 15-1602, that “[t]he Code
itself . . . tells us what is required of innkeepers.” We then
used the standard of care prescribed by that Code section in
determining that the trial court had improperly sustained a
demurrer to the motion for judgment. Former Code § 15-1602
corresponds in all relevant parts to subsection A of Code
§ 35.1-28. However, at the time Crosswhite was decided, the
Code contained no provision corresponding to Code § 35.1-28(E),
which was added to the Code in 1981 as part of the enactment of
9
 We turn now to consider Taboada’s three remaining

assignments of error. These all address the trial court’s

sustaining of the demurrers to his common law claim of

negligence. However, because Taboada was granted leave by the

trial court to file the amended motion for judgment in which he

expanded the allegations in support of his common law claim, we

will confine our discussion of this issue to the trial court’s

judgment sustaining the demurrer to Taboada’s amended motion for

judgment. Cf. Doe v. Zwelling, 270 Va. 594, 596, 620 S.E.2d

750, 751 (2005); Fuste v. Riverside Healthcare Assoc., 265 Va.

127, 129-30, 575 S.E.2d 858, 860 (2003).

The general rule in Virginia is that there is no common law

duty for an owner or occupier of land either to warn or to

protect an invitee on his property from the criminal act of a

third party. Yuzefovsky, 261 Va. at 106, 540 S.E.2d at 139.

“[T]here are narrow exceptions to this rule,” but the

application of those exceptions “is always fact specific and,

thus, not amenable to a bright-line rule for resolution.” Id.

However, before an exception to the general rule can apply so as

Title 35.1. See 1981 Va. Acts ch. 468. Accordingly, to the
extent that Crosswhite can be read to stand for the proposition
that an innkeeper’s duty of care to protect a guest from
personal injury arises only from the statute, the subsequent
legislative amendment of the successor statute has clarified
that it did not abrogate the duty or the liability imposed on
innkeepers for personal injuries to guests by the common law.
10
to impose a potential duty upon the owner of land, the facts

“must establish that there is a special relationship, either

between the [owner of land] and the [invitee] or between the

third party criminal actor and the [owner of land].” Id. at

107, 540 S.E.2d at 139. The relationship between innkeeper and

guest has long been recognized by the common law as constituting

just such a special relationship.4 See, e.g., Yuzefovsky, 261

Va. at 108, 540 S.E.2d at 140; Skate America, 261 Va. at 129,

540 S.E.2d at 127; Holles v. Sunrise Terrace, Inc., 257 Va. 131,

136, 509 S.E.2d 494, 497-98 (1999); A.H. v. Rockingham

4
The special legal relationship between innkeepers and
guests

“had its origin in the feudal conditions which were
the outgrowth of the Middle Ages. In those days there
was little safety outside of castles and fortified
towns for the wayfaring traveler, who, exposed on his
journey to the depredations of bandits and brigands,
had little protection when he sought at night
temporary refuge at the wayside inns, established and
conducted for his entertainment and convenience.
Exposed as he was to robbery and violence, he was
compelled to repose confidence, when stopping on his
pilgrimages over night, in [proprietors] who were not
exempt from temptation; and hence there grew up the
salutary principles that a host owed to his guest the
duty, not only of hospitality, but also of
protection.”

Kveragas v. Scottish Inns, Inc., 733 F.2d 409, 412 (6th Cir.
1984) (quoting Crapo v. Rockwell, 94 N.Y.S. 1122 (N.Y.Sup. Ct.
1905)). It continues to be recognized as a special one because
“[a]lthough castles and fortified towns are no longer a part of
our landscape, bandits and brigands remain” as hazards to those
who travel. Id.
11
Publishing Co., 255 Va. 216, 220, 495 S.E.2d 482, 485 (1998);

Klingbeil Management Group Co. v. Vito, 233 Va. 445, 448, 357

S.E.2d 200, 201 (1987).

The establishment of the necessary special relationship is

the threshold requirement for the application of an exception to

the general rule of non-liability in these cases. Even though

the necessary special relationship is established so as to

create a potential duty on the defendant to protect or warn the

plaintiff against criminal conduct of a third party, there is no

liability when the defendant neither knows of the danger of an

injury to a plaintiff from the criminal conduct of a third party

nor has reason to foresee that danger. In short, the special

relationship does not make the defendant an insurer of the

plaintiff’s safety. See Rockingham, 255 Va. at 220-21, 495

S.E.2d at 485.

Although we have previously addressed questions of

liability for injuries caused by third parties involving

property owners who were innkeepers, the plaintiffs in those

cases were regular business invitees on the property and not

guests of the innkeepers. See, e.g., Wright v. Webb, 234 Va.

527, 529, 362 S.E.2d 919, 920 (1987) (patron of adjoining

business using parking on innkeeper’s property by permission);

Alpaugh v. Wolverton, 184 Va. 943, 945, 36 S.E.2d 906, 907

(1946) (patron of restaurant located in innkeeper’s property).

12
In contrast, this case presents the opportunity to address

directly the question of what duty of care an innkeeper owes to

a guest as a result of that special relationship for injuries

caused by the criminal conduct of a third party while on the

innkeeper’s property.

In the absence of prior case law in Virginia concerning the

special relationship of innkeeper and guest with regard to

injuries suffered by criminal acts of a third party, the trial

court looked for guidance in our prior cases involving other

special relationships between owners of land and either invitees

or tenants. The trial court principally chose Yuzefovsky, which

involved the recognized special relationship of a landlord and

tenant, for that guidance. We are of opinion, however, that the

nature of the landlord-tenant relationship is not congruent with

the relationship of innkeeper and guest. Moreover, in

Yuzefovsky, we made clear that a higher duty of care may be

imposed on the landlord in the special relationship of landlord-

tenant because of the specific circumstances of a particular

case and not because of any unique aspect of the relationship

recognized by the common law. Such, generally, would be the

case in any owner-invitee relationship in order to invoke an

exception to the general rule of non-liability. Yuzefovsky, 261

Va. at 108, 540 S.E.2d at 140 (“we have consistently rejected

the contention that the relationship of landlord and tenant,

13
without more, constitutes a special relationship such that a

duty of care may arise with regard to the conduct of a third

party”); see also Klingbeil Management Group, 233 Va. at 448,

357 S.E.2d at 201; Gulf Reston, Inc. v. Rogers, 215 Va. 155,

158, 207 S.E.2d 841, 844 (1974).

Additionally, we are unpersuaded by the analogy of the

landlord-tenant relationship in this case because, unlike a

landlord, an innkeeper is in direct and continued control of the

property and usually maintains a presence on the property

personally or through agents. Thus, “while a lessee may be

expected to do many things for his own protection,” an

innkeeper’s guest is not as well situated to do so. Crosswhite

v. Shelby Operating Corp., 182 Va. 713, 715, 30 S.E.2d 673, 674

(1944).

In Kirby v. Moehlman, 182 Va. 876, 30 S.E.2d 548 (1944), a

premises liability case involving an innkeeper and guest, we

observed with regard to the common definition of negligence that

“negligence is a relative term and the degree of care in fact

should be greater or less commensurate with the circumstances.”

Id. at 884, 30 S.E.2d at 551 (quoting Eastern Shore of Va.

Agric. Assoc. v. LeCato, 151 Va. 614, 619, 144 S.E. 713, 714

(1928)). In a similar vein, we observed in Rockingham that even

though the necessary special relationship is established with

regard to a defendant’s potential duty to protect or warn a

14
plaintiff against criminal conduct, the defendant is not held to

be the insurer of the plaintiff’s safety but, rather, it must be

established that “the danger of a plaintiff’s injury from such

conduct was known to the defendant or was reasonably

foreseeable.” 255 Va. at 220, 495 S.E.2d at 485.

Consistent with these basic principles, we have long

recognized that some special relationships impose an elevated

duty of care on the property owner. One such special

relationship is that of common carrier and passenger. See,

e.g., Hines v. Garrett, 131 Va. 125, 137, 108 S.E. 690, 693-94

(1921); Virginia R. & P. Co. v. McDemmick, 117 Va. 862, 870, 86

S.E. 744, 747 (1915); see also Wright, 234 Va. at 532, 362

S.E.2d at 922 (“a business invitee does not entrust his safety

to a business invitor to the same extent a passenger does to a

common carrier”). Imposing an elevated duty of care upon the

carrier is justified essentially because the passenger entrusts

his safety to the carrier, who alone knows the condition of his

vehicle and the dangers of the neighborhoods and environs

through which the routes of travel may lie. This imbalance of

knowledge and control warrants imposition of a duty on a common

carrier “to protect its passengers against violence or

disorderly conduct on the part of its own agents, or other

passengers and strangers, when such violence or misconduct may

be reasonably expected and prevented, yet it is not liable to an

15
action for damages when it is not shown that the company had

notice of any acts which justified the expectation that a wrong

would be committed.” Virginia R. & P., 117 Va. at 870, 86 S.E.

at 747; see also Norfolk & Western Ry. v. Birchfield, 105 Va.

809, 822, 54 S.E. 879, 884 (1906).

Like a passenger, the guest of an innkeeper entrusts his

safety to the innkeeper and has little ability to control his

environment. The guest relies upon the innkeeper to make the

property safe and the innkeeper’s knowledge of the neighborhood

in taking the reasonably necessary precautions to do so. In

this regard, it is reasonable for the law to impose upon the

innkeeper, as on the common carrier, a duty to take reasonable

precautions to protect his guests against injury caused by the

criminal conduct on the part of other guests or strangers, if

the danger of injury by such conduct is known to the innkeeper

or reasonably foreseeable. Indeed, Code § 35.1-28(A) supports

the conclusion that such a duty rests upon the innkeeper

although under subsection (E) of that statute the parameters of

that duty are a matter of common law.

We have held that neither the innkeeper nor the common

carrier is an absolute insurer of the guest’s or the passenger’s

personal safety. See, e.g., Crosswhite, 182 Va. at 716, 30

S.E.2d at 674 (innkeeper); Norfolk & Western, 105 Va. at 821, 54

S.E. at 883 (common carrier). Nonetheless, we have held that

16
the duty of care imposed on common carriers is an elevated duty

that requires them “ ‘so far as human care and foresight can

provide . . . to use the utmost care and diligence of very

cautious persons; and they will be held liable for the slightest

negligence which human care, skill and foresight could have

foreseen and guarded against.’ ” Norfolk & Western, 105 Va. at

821, 54 S.E. at 883 (quoting Connell v. Chesapeake and Ohio Ry.

Co., 93 Va. 44, 55, 24 S.E. 467, 468 (1896)). Given the nature

of the special relationship between an innkeeper and a guest, we

hold that it imposes on the innkeeper the same potential

elevated duty of “utmost care and diligence” to protect a guest

from the danger of injury caused by the criminal conduct of a

third person on the innkeeper’s property.

Daly Seven contends that in Wright we extended the

application of the duty of care previously applied in our common

carrier cases “to business invitors in general” and, thus, that

liability for negligence in the latter cases is imposed only

when a business invitor “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.”

234 Va. at 533, 362 S.E.2d at 922. Our decision in Wright

involved a business invitee and not a guest of the hotel and for

that reason alone is not authority for Daly Seven’s broad

contention. Moreover, in Wright we specifically noted that in a

17
prior common carrier case, Hines v. Garrett, 131 Va. 125, 108

S.E. 690 (1921), we had recognized “the high degree of care a

common carrier owes its passengers and, therefore, a carrier’s

duty to protect passengers from criminal acts of third persons

which are reasonably foreseeable.” Wright, 234 Va. at 532, 362

S.E.2d at 922. We went on to hold that Hines was inapplicable

there “because a business invitee does not entrust his safety to

a business invitor to the same extent a passenger does to a

common carrier.” Id.

In commenting on three other common carrier cases, we noted

that implicit in all of them “is the element of notice of a

specific danger just prior to the assault.” Id. at 533, 362

S.E.2d at 922. We then stated that, in the context of a

business owner and invitee special relationship, we will not

impose liability for negligence based solely upon a background

of previous criminal activity on the owner’s property. Id. We

do not retreat from our holding in Wright; it 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, 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 128

18
(“imminent probability” of harm is a heightened degree of

foreseeability).

Having determined that the special relationship of

innkeeper and guest recognized by the common law imposes a duty

of “utmost care and diligence” to protect the guest against

reasonably foreseeable injury from the criminal conduct of a

third party, we now review the allegations of the amended motion

for judgment to determine whether Taboada adequately pled a

cause of action under that standard. See Sanchez v. Medicorp

Health Sys., 270 Va. 299, 303, 618 S.E.2d 331, 333 (2005).

Limiting our consideration only to whether the facts

alleged in the amended motion for judgment were sufficient to

survive Daly Seven’s demurrer, we hold that those allegations,

if proven, would be sufficient to permit a trier of fact to find

that Daly Seven had breached its duty of care. Taboada alleged

that, over a three-year period immediately prior to the attack

upon Taboada, Daly Seven’s employees had regularly contacted

police 96 times to report criminal conduct including robberies,

malicious woundings, shootings and other criminally assaultive

acts. As a result of these repeated incidents, Daly Seven had

been advised by police that “its guests were at a specific

imminent risk for harm to their persons from uninvited persons

coming into or upon its property.” These allegations are

sufficient to support a reasonable conclusion that Daly Seven

19
knew its property was located in a high crime area, and that

Daly Seven was on notice that its guests were in danger of

injury caused by similar criminal acts of third parties. These

allegations sufficiently support the further conclusion that the

injury to Taboada from the criminal act of the third party was

reasonably foreseeable.

For these reasons, we hold that the trial court erred in

sustaining Daly Seven’s demurrer to Taboada’s amended motion for

judgment.

CONCLUSION

Accordingly, we will affirm the judgment of the trial court

sustaining the demurrer to Taboada’s claim under Code § 35.1-28,

reverse the judgment of the trial court sustaining the demurrer

to Taboada’s common law claim, and remand the case for a trial

on the merits of that claim.

Affirmed in part,
reversed in part,
and remanded.

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