Present: All the Justices
MICHAEL R. DUDAS
OPINION BY
v. Record No. 001539 JUSTICE LAWRENCE L. KOONTZ, JR.
January 12, 2001
GLENWOOD GOLF CLUB, INC.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
In this appeal, we consider whether the trial court
properly awarded summary judgment to a business owner on the
ground that it did not owe a duty of care to warn or protect its
invitee who was the victim of a criminal assault by unknown
third parties while on the business owner’s premises.
BACKGROUND
Under well settled principles, we review the record
applying the same standard the trial court must adopt in
reviewing a motion for summary judgment, accepting as true
“those inferences from the facts that are most favorable to the
nonmoving party, unless the inferences are forced, strained, or
contrary to reason.” Dickerson v. Fatehi, 253 Va. 324, 327, 484
S.E.2d 880, 882 (1997); see also Carson v. LeBlanc, 245 Va. 135,
139-40, 427 S.E.2d 189, 192 (1993).
On November 1, 1997, Michael R. Dudas, a business invitee,
was playing golf on a public 18-hole golf course owned and
operated by Glenwood Golf Club, Inc. While playing near the
green of the 13th hole, Dudas and a companion were confronted by
two unknown male trespassers and robbed at gunpoint. One of the
assailants shot Dudas in the leg.
In an amended motion for judgment filed January 25, 1999,
Dudas alleges that in the month preceding this robbery and
assault there had been “at least two robberies of business
invitees, one with gunfire, [at] Glenwood Golf Club at the 7th
and 13th holes” and that the assailants responsible for these
two incidents had not been apprehended. The amended motion for
judgment contained three counts of negligence against Glenwood
Golf Club.
In Count One, Dudas alleges that Glenwood Golf Club
“negligently operated, managed, maintained, and repaired [its
premises], thus rendering the premises unsafe by affording [the]
assailants access and opportunity to harm Glenwood’s invitees.”
In Count Two, Dudas alleges that Glenwood Golf Club owed him, as
its invitee, a duty of care to warn him of the danger of a
criminal assault on its premises. In Count Three, he alleges
that Glenwood Golf Club owed him a duty to protect him from such
assaults. In a further count, Dudas alleges that in failing to
exercise these duties of care, Glenwood “acted consciously in
disregard of plaintiff’s rights and/or with reckless
indifference to the consequences” of its actions. Dudas sought
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$2,000,000 in compensatory damages and $350,000 in punitive
damages.
On February 25, 2000 and after more than a year of
discovery, Glenwood Golf Club filed a motion for summary
judgment and supporting brief contending that there were no
disputed material facts. For purposes of resolving that motion,
the parties agreed that two armed robberies and one attempted
robbery of business invitees had occurred on the premises of
Glenwood Golf Club during October 1997 and that another such
robbery had occurred in May 1996. Relying on Wright v. Webb,
234 Va. 527, 533, 362 S.E.2d 919, 922 (1987), Glenwood Golf Club
contended that it owed Dudas, as its invitee, no duty to warn or
protect him from the danger of being shot by a robber on its
premises in the absence of knowledge that such a criminal
assault was occurring or about to occur. In a responding brief,
Dudas contended that the prior criminal assaults on Glenwood
Golf Club’s premises were sufficient to place it on notice that
it owed a duty of care to warn or protect its invitees from
similar criminal assaults.
Following oral argument in which the parties adhered to the
positions stated in their briefs, the trial court issued an
opinion letter dated March 7, 2000. The trial court noted that
in Wright, this Court held that “a business invitor, whose
method of business does not attract or provide a climate for
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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.” 234 Va. at 533, 362 S.E.2d at 922.
Relying upon Wright, the trial court ruled that Dudas’ “claim
fails because there is nothing in the evidence to suggest that
the criminal acts [of] which [Dudas] was an unfortunate victim
were occurring or were imminent and that [Glenwood Golf Club]
knew of these circumstances.” A final order awarding summary
judgment to Glenwood Golf Club and incorporating the reasoning
of the trial court’s opinion letter was entered March 27, 2000.
We awarded Dudas this appeal.
DISCUSSION
The sole issue raised by Dudas on appeal is whether
Glenwood Golf Club owed him a duty of care to warn or protect
him against criminal assaults by unknown third parties while he
was an invitee on its premises. Whether such a duty of care is
imposed upon Glenwood Golf Club is “a pure question of law.”
Burns v. Johnson, 250 Va. 41, 45, 458 S.E.2d 448, 451 (1995).
Thus, the question whether Glenwood Golf Club had a duty of care
under the circumstances of this case was one for the trial court
to consider and determine, and summary judgment would be proper
only if the trial court correctly determined that no such duty
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exists. See Acme Markets, Inc. v. Remschel, 181 Va. 171, 178,
24 S.E.2d 430, 434 (1943) (“[t]he law determines the duty, and
the jury, upon the evidence, determines whether the duty has
been performed”).
Glenwood Golf Club contends that the facts of this case are
squarely on point with Wright. In that case, we said that
“[o]rdinarily, 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 . . . [unless] there is a special
relationship between [the] possessor of land and his invitee
giving rise to a duty to protect the invitee from such
assaults.” 234 Va. at 530, 362 S.E.2d at 920-21. We recognized
that one such special relationship is that of business invitor
and its business invitee. However, we declined to find inherent
in that bare relationship an absolute duty of the business
invitor to protect its invitees from criminal assaults by
unknown third parties on its premises. We observed that:
In ordinary circumstances, it would be difficult to
anticipate when, where, and how a criminal might
attack a business invitee. Experience demonstrates
that the most effective deterrent to criminal acts of
violence is the posting of a security force in the
area of potential assaults. In most cases, that cost
would be prohibitive. Where invitor and invitee are
both innocent victims of assaultive criminals, it is
unfair to place that burden on the invitor.
Id. at 531, 362 S.E.2d at 921. Accordingly, we limited the duty
owed by the business invitor to protect its invitee against
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criminal assaults to those instances where it “knows that
criminal assaults against persons are occurring, or are about to
occur, on the premises which indicate an imminent probability of
harm to [its] invitee.” (Emphasis added). Id. at 533, 362
S.E.2d at 922.
Dudas contends, however, that the appropriate analysis to
be applied in this case in determining whether he was owed any
duty of care by Glenwood Golf Club with regard to criminal acts
by unknown third parties does not involve consideration of
“imminent probability of harm” as stated in Wright. Rather, he
contends that once the special relationship of business invitor
and its business invitee is established, as it is here, then the
only remaining consideration in the analysis of the business
invitor’s potential liability is whether it was reasonably
foreseeable that the invitee would be injured by a criminal
assault committed by a third party. Dudas relies primarily on
A.H. v. Rockingham Publishing Co., 255 Va. 216, 495 S.E.2d 482
(1998), to support this contention.
The thrust of Dudas’ contention is that the prior criminal
acts in Wright were not similar in nature to the act which
resulted in the injury to the plaintiff in that case and,
therefore, an imminent probability of harm to the plaintiff was
necessary to establish liability on the business invitor.
However, Dudas contends that where there are prior similar
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criminal attacks, the issue becomes whether the plaintiff’s
injury was reasonably foreseeable. To the extent Dudas’
contention is that A.H. modified our holding in Wright or
established two distinct “tests” for determining whether a
business invitor owes a duty of care to its business invitees
with regard to the danger of harm from criminal assaults
committed by an unknown third party on its premises, Dudas
misreads A.H. Our analysis in A.H. focused on the particular
special relationship and the surrounding circumstances at issue
there and did not modify our 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.
We have consistently adhered to the rule that the owner or
occupier of land ordinarily is under no duty to protect its
invitee from a third party’s criminal act committed while the
invitee is upon the premises. Gupton v. Quicke, 247 Va. 362,
363, 442 S.E.2d 658, 658 (1994); see also Burns, 250 Va. at 44,
458 S.E.2d at 451. Our decision in Wright fashioned a narrow
exception to this general rule. In applying that exception,
careful analysis of particular factual patterns in subsequent
cases must be used to avoid permitting the narrow exception to
swallow the general rule. Dudas’ contention in the present case
would create such a result. This is so because Dudas’ theory of
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liability is premised solely upon the foreseeability of the
danger of injury to a business invitee.
In that context, we have stressed that whether a duty of
care arises from a special relationship between a business
invitor and its invitee regarding a criminal assault by a third
party committed on the premises so as to qualify as an exception
to the general rule of nonliability involves a fact specific
determination. Thus, in Thompson v. Skate America, Inc., 261
Va. ___, ___, ___ S.E.2d ___, ___ (2001)(decided today), we have
recognized that when a business invitor has knowledge that a
particular individual has a history of violent, criminal
behavior while on its premises, and thereby poses an imminent
probability of harm to an invitee, the business invitor has a
duty of care to protect its other invitee from assault by that
person.
However, we are of opinion that the facts of this case do
not satisfy the requirements of the narrow exception to the
general rule adopted in Wright. Dudas contends that the
similarity and chronological proximity of the prior crimes in
this case distinguish it from Wright. We disagree. In Wright,
the plaintiff’s injury resulted from an assault committed during
an apparent robbery by an unknown third party in the defendant’s
motel parking lot. The criminal activity that had occurred
prior to this assault included a double murder in an adjacent
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parking lot three and a half years before the assault, a
physical assault upon a female guest in a room of the motel
almost a year before the assault, and frequent recent larcenies
from motel rooms and vehicles in the parking lot. 234 Va. at
529-30, 362 S.E.2d at 920. Regardless whether this previous
criminal activity was sufficient to make the subsequent assault
on the plaintiff reasonably foreseeable, we narrowed the
appropriate inquiry to 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 533, 362 S.E.2d at 922.
The fact that the prior criminal acts on the premises of
Glenwood Golf Club were of the same nature as the criminal act
that caused Dudas’ injury does not change our analysis with
respect to the narrow exception adopted in Wright. Prior to the
two robberies and one attempted robbery, it had been over a year
since there had been any similar criminal activity on Glenwood
Golf Club’s premises. Thus, just as in Wright, the level of
criminal activity would not have led 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.
Moreover, in addition to the question of imminent danger of
injury from criminal assault by an unknown third party, we must
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also consider “the magnitude of the burden of guarding against
[harm to the plaintiff] and the consequences of placing that
burden on [the business owner]” before imposing a duty to
protect its invitees. Id. at 531, 362 S.E.2d at 921. It is in
that context that we have observed that “[e]xperience
demonstrates that the most effective deterrent to criminal acts
of violence is the posting of a security force in the area of
potential assaults. In most cases, that cost would be
prohibitive.” Id. Certainly, in the case of an 18-hole golf
course, which is necessarily an extensive and open tract of
land, generally having at many points uncontrolled access from
other property and public ways, the cost of guarding against
occasional criminal trespassers would be unduly great. Thus,
because the facts do not establish that there was an imminent
probability of harm to Dudas from a criminal assault by an
unknown third party and it would have been unduly burdensome to
require Glenwood Golf Club to post a security force for his
protection, we hold that Glenwood Golf Club owed no duty to
protect Dudas from the danger of injury from such an assault.
Similarly, we hold that under the facts of this case
Glenwood Golf Club had no duty to warn Dudas of the potential
danger of criminal assaults by third parties. Glenwood Golf
Club was not an insurer of Dudas’ safety. In our view, to
require a business owner who, through no fault of its own, has
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been victimized by assaultive criminals coming onto its
property, to thereafter give warnings of the remote but
potential danger of injury from the acts of such criminals would
unfairly burden that business owner in light of the potential
harm such warnings could do to its reputation and the loss of
its trade which would inevitably result.
For these reasons, we hold that the trial court did not err
in awarding summary judgment to Glenwood Golf Club.
Accordingly, the judgment of the trial court will be affirmed.
Affirmed.
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