A.H. v. Rockingham Publishing Co.

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Whiting, Senior Justice

A.H.
OPINION BY
v. Record No. 961984 SENIOR JUSTICE HENRY H. WHITING
January 9, 1998
ROCKINGHAM PUBLISHING COMPANY, INC., ET AL.

FROM THE CIRCUIT COURT OF GREENE COUNTY
Lloyd C. Sullenberger, Judge

In this appeal, the primary issue is whether a newspaper

publishing company had a duty to warn a 13 or 14-year-old

independent contractor of the danger of a criminal assault by a
1
third party while delivering newspapers in early morning hours.
Because the trial court sustained the company's motion to strike

the evidence, we state the facts in the light most favorable to

the plaintiff. See Tarmac Mid-Atlantic, Inc. v. Smiley Block

Co., 250 Va. 161, 163, 458 S.E.2d 462, 464 (1995).

In May 1988, 13-year-old A.H. 2 and his parents agreed with

Rockingham Publishing Company, Inc., a newspaper publishing

company, that A.H. would deliver its newspapers in the City of

Harrisonburg. Due to A.H.'s age, under Virginia's child labor

law Rockingham could only permit A.H. and its other carriers of

the same age to distribute its "newspapers on regularly

established routes between the hours of four o'clock ante

meridian and seven o'clock post meridian, excluding the time

1
Although there may have been an issue whether the plaintiff
was an employee or an independent contractor, in this opinion, we
will assume, but not decide, that the plaintiff was an independent
contractor as he contends.
2
Because this claim arises out of a sexual assault on a minor,
the plaintiff used a pseudonym to protect his identity.
public schools are actually in session." Code § 40.1-109.

Eighteen months after A.H. started working for Rockingham, while

delivering newspapers on his regular route between six and six-

thirty a.m. on November 7, 1989, A.H. was sexually assaulted by a

then-unidentified young man.

There had been three previous pre-dawn assaults of a sexual

nature upon other young Rockingham carriers while they were

delivering their newspapers. None of the three prior assaults

was shown to have occurred on or near A.H.'s route.
Rockingham knew about all three attacks before the assault

on A.H. The first assault was about five years, the second about

four-and-a-half years, and the third about four months before the

assault upon A.H. All three victims gave similar descriptions of

the young man who assaulted them. The unknown assailant had not

been arrested prior to A.H.'s assault.

After he became an adult, A.H. filed this action against the

company and its circulation manager, K. Gary Anderson
3
(collectively, Rockingham). A.H. alleged that the newspaper

company and Anderson violated a legal duty of care owed him in

failing to advise him or his parents of the previous attacks or

to warn them of the danger of being attacked. Following

presentation of all parties' evidence before a jury, the trial

court sustained Rockingham's motions to strike the evidence. The

plaintiff appeals.

3
Although there may be differences in the potential liability
of Rockingham and Anderson, we need not consider them in this
appeal.
 We must first decide whether there was a duty of care upon

Rockingham in this negligence case. See Burns v. Johnson, 250

Va. 41, 44, 458 S.E.2d 448, 450 (1995). Whether such duty exists

is "a pure question of law." Id. at 45, 458 S.E.2d at 451; 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").

Familiar principles control our determination of whether

Rockingham had a duty of care in this case. Before any duty can

arise with regard to the conduct of third persons, there must be

a special relationship between the defendant and either the

plaintiff or the third person. Burdette v. Marks, 244 Va. 309,

312, 421 S.E.2d 419, 420 (1992). Examples of such a relationship

between a defendant and a plaintiff include common carrier-

passenger, business proprietor-invitee, and innkeeper-guest.

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

S.E.2d 200, 201 (1987). And these examples are not exclusive.
Gulf Reston, Inc. v. Rogers, 215 Va. 155, 157, 207 S.E.2d 841,

844 (1974). Another example of a special relationship is that of

employer-employee with regard to the employer's potential duty of

protecting or warning an employee. Restatement (Second) of Torts

§ 302B cmt. e (B) (1965).

Under the circumstances of this case, we conclude that

Rockingham owed the same degree of care to A.H. that it would

have owed if A.H. had been employed by Rockingham. See Peele v.

Bright, 119 Va. 182, 184, 89 S.E. 238, 239 (1916) (instruction

that degree of care owed to independent contractor less than that
owed toward employees erroneous and properly refused). And,

given the fact that Rockingham assigned a fixed route and time

for A.H. to distribute its newspapers, we conclude that the

necessary special relationship existed between Rockingham and

A.H. with regard to the conduct of third persons.

Even though the necessary special relationship is

established with regard to a defendant's potential duty to

protect or warn a plaintiff against the criminal conduct of a

third party, that duty, as in other negligence cases, is not

without limitations. A court must still determine whether the

danger of a plaintiff's injury from such conduct was known to the

defendant or was reasonably foreseeable. "[W]here the duty does

exist [arising from a requisite relationship], the obligation is

not an absolute one to insure the plaintiff's safety[;] . . . .

[t]here is . . . no liability . . . where the defendant neither

knows nor has reason to foresee the danger or otherwise to know

that precautions are called for." W. Page Keeton, et al.,

Prosser and Keeton on the Law of Torts § 56, at 385 (5th ed.

1984); see also Burdette, 244 Va. at 312, 421 S.E.2d at 421
(since citizen being assaulted in police official's presence

asked for aid, "[defendant] knew or should have known that

[plaintiff] was in great danger of serious bodily injury"); Gulf

Reston, 215 Va. at 159, 207 S.E.2d at 845 (insufficient evidence

to show criminal violence upon tenant reasonably foreseeable by

landlord); Trimyer v. Norfolk Tallow Co., 192 Va. 776, 785-86, 66
S.E.2d 441, 446 (1951) (insufficient evidence to show power

company should have anticipated danger from uninsulated electric
lines); Lynchburg Cotton Mills v. Stanley, 102 Va. 590, 594, 46

S.E. 908, 909 (1904) (employer liable for failing to warn boy not

quite 12 years old of known dangers of revolving wheels, belts,

and pulleys in place of employment); Linda A. Sharp, Annotation,

Employer's Liability to Employee or Agent for Injury or Death

Resulting from Assault or Criminal Attack by Third Person, 40

A.L.R.5th 1, 14 (1996) ("that a 'special relationship' may exist

is not dispositive of the duty question because the court must

also find that the 'harm is foreseeable'"). 4
We will apply the foregoing principles in this case.

Despite the special relationship, and even though the plaintiff's

age may have imposed a greater degree of care upon Rockingham

than it would have owed an adult in the plaintiff's

circumstances, Rockingham had no duty to warn or protect him

against harm unless the danger of an assault on the plaintiff was

known or reasonably foreseeable to Rockingham. Since Rockingham

did not know that the plaintiff was in danger of being assaulted

4
We noted in Gulf Reston that a landlord owed certain duties
of care to his tenant, 215 Va. at 157, 207 S.E.2d at 844, but held
that the facts did not establish a sufficient pattern of prior
criminal conduct to impose a duty upon the landlord to protect the
tenant against the criminal acts of third parties. Our statement
that "no special relationship existed between Gulf Reston and
Rogers" was made in the context of that holding. Id. at 159, 207
S.E.2d at 845.
In Burdette, we were dealing with a deputy sheriff's duty to
act in response to a citizen's request for aid when being
assaulted by a third party in the deputy's presence. Our
statement that "[i]n determining whether such a special relation
existed, it is important to consider whether [the deputy sheriff]
reasonably could have foreseen that he would be expected to take
affirmative action to protect [the plaintiff] from harm," was made
in the context of that situation. 244 Va. at 312, 421 S.E.2d at
421.
on that particular paper route, we consider whether the evidence

is sufficient to raise a jury question whether an assault on him

was reasonably foreseeable.

In ordinary circumstances, acts of assaultive criminal

behavior by third persons cannot reasonably be foreseen.

Burdette, 244 Va. at 311-12, 421 S.E.2d at 420; Marshall v.

Winston, 239 Va. 315, 318, 389 S.E.2d 902, 904 (1990); Wright v.

Webb, 234 Va. 527, 531, 362 S.E.2d 919, 921 (1987); Gulf Reston,

215 Va. at 158-59, 207 S.E.2d at 844-45; Connell v. Chesapeake &
Ohio Ry., 93 Va. 44, 57-58, 24 S.E. 467, 469 (1896).

Accordingly, Rockingham's alleged duty to warn the plaintiff of

the dangers of such an assault would not arise unless the then-

known background of the three prior assaults was sufficient to

create a reasonable foreseeability of the danger that similar

criminal acts would be committed upon A.H. See Gulf Reston, 215

Va. at 159, 207 S.E.2d at 845; Keeton, supra, § 56, at 385.

Recognizing his obligation to demonstrate the reasonable

foreseeability of this danger, the plaintiff claims that the

facts established at trial imposed a duty of care upon Rockingham

to warn him of the danger of such an assault. Rockingham

responds that the trial court correctly concluded that no such

duty arose under the circumstances in this case.

In our opinion, the three prior sexual assaults on

Rockingham carriers in various locations in the City of

Harrisonburg in the five years preceding the assault on the

plaintiff were insufficient to raise a jury issue of whether a

sexual attack on the plaintiff was reasonably foreseeable. This
is not a case in which it was shown that the prior assaults were

at or near the location of the plaintiff's assault, or that they

occurred frequently or sufficiently close in time to make it

reasonably foreseeable that the plaintiff would be similarly

assaulted. 5 Hence, we hold that the trial court correctly

concluded that Rockingham had no duty to warn the plaintiff or

his parents of the danger of an attack upon the plaintiff.

Nevertheless, plaintiff claims that his age and relationship

to Rockingham created an additional duty of disclosure to satisfy

a requirement that A.H. and his parents give an "informed

consent" to the alleged risk involved in the performance of

plaintiff's duties. We do not reach the merits of this claim,

however, because the plaintiff has not met his threshold

obligation of introducing evidence sufficient to create a jury

issue on the question of whether the assault on him was

reasonably foreseeable.
Plaintiff also asserts that Rockingham's "method of doing

business created an environment conducive to assault," basing

this conclusion on the three prior assaults on Rockingham's

carriers. Since those assaults were insufficient to indicate a

reasonable foreseeability that A.H. was in danger of future

assaults, we reject this contention.

Next, plaintiff contends that in advising carriers about
5
If the circumstances had been sufficient to suggest that
there was a reasonable foreseeability that the plaintiff would be
assaulted while on his early morning route, that issue would have
been submitted to a jury. See Page v. Arnold, 227 Va. 74, 80, 314
S.E.2d 57, 61 (1984) (court decides whether evidence of
foreseeable danger sufficient to create jury issue).
safety precautions while on their routes and in equipping them

with whistles, Rockingham voluntarily assumed a legal duty to (1)

advise the carriers of the three prior attacks, (2) warn the

carriers of the possibility of similar attacks, and (3) see that

all carriers, including the plaintiff, received whistles and

attended safety lectures. We decline to impose these additional

duties upon Rockingham merely because it took precautions not

required of it.
Duties imposed upon defendants and the violations of those

duties are premised upon the objective concept of what a

reasonably prudent person in the exercise of reasonable care

would have done in similar circumstances. Hall v. Hall, 240 Va.

360, 363, 397 S.E.2d 829, 831 (1990). A defendant ordinarily

cannot create duties to act merely by taking precautions not

required of a reasonably prudent person exercising reasonable

care in the absence of affirmative acts of negligence on his part

in taking the precautions. See Keeton, supra, § 56, at 378.

Here, the plaintiff complains that Rockingham gave

"inadequate" and "deceptive" warnings regarding the risks of

assaults upon its young carriers while on their early-morning

deliveries. Assuming, but not deciding, that Rockingham's safety

literature, video, and safety whistles were inadequate, we

conclude that, whatever Rockingham may have voluntarily done in

providing this material, Rockingham's actions did not give rise

to a duty to give a more complete warning. See St. Louis-San

Francisco Ry. v. Mills, 271 U.S. 344, 347 (1926) (voluntarily

furnishing one guard to protect strike-breaker did not raise duty
to provide additional guards). Moreover, creation of a duty

under these circumstances would discourage other parties from

taking extra precautions to avoid being subjected to a liability

which they otherwise would not have had.

Even if Rockingham's safety materials were deceptive, a

matter we do not decide, we do not think that a duty was created

in this case because neither the plaintiff nor his parents had

seen or read any of the safety literature. Plaintiff also

contends that the newspaper published a "deceptive" article about

a previous attack upon one of Rockingham's carriers. Although

the plaintiff's mother testified that she "probably read" the

article, it was not published as a part of Rockingham's safety

literature. Therefore, its publication did not create a duty in

this case.
In the rest of this opinion, we consider the plaintiff's

contentions regarding the court's exclusion of certain evidence.

At the outset, he notes that the court excluded allegedly

relevant evidence of prior attacks on non-paper carriers by an

assailant matching the description and method of operation of the

person who committed the assaults upon newspaper carriers.

When evidence of prior occurrences is sought to be

introduced to establish foreseeability of an unreasonable risk of

harm to others, a trial court must determine whether there is a

"substantial similarity" between the prior occurrences and the

occurrence in question. See General Motors Corp. v. Lupica, 237

Va. 516, 521, 379 S.E.2d 311, 314 (1989). In making that

determination, a trial court exercises its discretion. See
Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 138, 413

S.E.2d 630, 636 (1992). Absent an abuse of that discretion, we

will not reverse a trial court's decision in admitting or

excluding evidence of prior occurrences. See Roll 'R' Way Rinks,

Inc. v. Smith, 218 Va. 321, 327, 237 S.E.2d 157, 161 (1977).

The plaintiff proffered a chart prepared by a Harrisonburg

police sergeant summarizing the facts in five "non-carrier"

assaults that occurred prior to the assault upon the plaintiff.

According to the plaintiff, those assaults were "substantially

similar" to the attack upon him. In contrast to the early

morning assault upon the plaintiff, however, three of those

assaults occurred in the afternoon or evening. A fourth assault

took place in the victim's bedroom. The fifth assault, which

occurred in the early morning, was upon a 20-year-old female. In

view of these dissimilarities, we cannot say that the trial court

abused its discretion in excluding this evidence.
The court also excluded the proffered testimony of two

Harrisonburg police officers who investigated the assault upon

the plaintiff and the prior assaults. The officers would have

testified that they believed that all the assaults were committed

by the same perpetrator and that they closed their investigation

of all of the assaults upon the 1993 arrest of a young male who

confessed to many of the assaults, including the attack on the

plaintiff.

We think that the court correctly excluded this evidence.

The issue that plaintiff sought to submit to the jury was what a

reasonably prudent person in the exercise of reasonable care
should have concluded from the information reasonably available

to persons in Rockingham's position prior to the assault upon the

plaintiff. That issue was not addressed by evidence of what two

investigators may have concluded from information available to

them either before or after the assault.

Moreover, the testimony of a lay witness's conclusions from

certain facts in evidence is not admissible; the jury must draw

whatever conclusion should be drawn from those facts. See Lopez
v. Dobson, 240 Va. 421, 423, 397 S.E.2d 863, 865 (1990). And

evidence of what happened or what was discovered after the

assault upon the plaintiff was not admissible to show what

Rockingham should have known prior to the assault. See Turner v.

Manning, Maxwell & Moore, Inc., 216 Va. 245, 253, 217 S.E.2d 863,

869-70 (1975) (evidence of post-accident change of conditions

inadmissible to prove negligence).

Finally, the plaintiff contends that the court erred in

excluding the testimony of the mother of one of Rockingham's

previously assaulted carriers regarding that assault. The

plaintiff contends that this testimony was admissible to show

that Rockingham was on notice of that assault. We need not

consider this contention since other evidence shows what is

implicit in the trial court's ruling, viz., that Rockingham was

on notice of the three prior assaults on Rockingham's carriers.

In summary, we conclude that the plaintiff failed to

establish either that the defendant owed a duty of care to the

plaintiff under the facts of this case or that the court erred in

excluding evidence proffered by the plaintiff. Hence, we will
affirm the court's judgment.

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

I agree with the majority opinion except its conclusion that

the evidence is not sufficient to raise a jury question on

whether an assault on A.H. was reasonably foreseeable. In

reaching this conclusion, the majority emphasizes that the prior

assaults on Rockingham’s carriers did not occur at or near the

location of the assault on A.H. and that those assaults did not

occur frequently or sufficiently close in time. However, other

facts, about which Rockingham had knowledge, show that an assault

on A.H. was reasonably foreseeable. Thus, I believe the evidence

provides a sufficient basis upon which to submit to the jury the

question of whether a sexual assault on A.H. while he was

delivering papers on his route was reasonably foreseeable. See

Page v. Arnold, 227 Va. 74, 80, 314 S.E.2d 57, 61 (1984).

As the majority states, the three prior assaults occurred in

distinct parts of Harrisonburg, and not on any one paper route.

Even though the attacks occurred at different locations, they

shared the common elements of being attacks on carriers while

delivering papers on routes assigned by Rockingham. Thus, the

random locations of the assaults rendered an attack on any given

paper route more, rather than less, foreseeable. In other words,

if the prior assaults had occurred in only one area of the city

or on a particular paper route, then Rockingham would be
justified in arguing that it could not have foreseen that A.H.’s

route would be the site of an assault. Also persuasive is the

fact that the assaults occurred in the same type of location, a

paper route, thereby rendering an attack on A.H.'s route

foreseeable.

Furthermore, the modus operandi of the prior assaults and

the three victims’ descriptions of the assailant are significant

factors in the foreseeability analysis. With regard to the

assailant’s modus operandi, all prior attacks occurred in the

pre-dawn hours while the three victims were delivering

Rockingham’s papers. The victims reported that the assailant

grabbed them from behind and attempted to engage in sexual acts.

The victims also gave strikingly similar descriptions of their

assailant. All the descriptions included the same attributes as

to age, gender, race, and physique. In sum, the time and method

of the attacks, the sexual nature of the assaults, and the

similarity in the victims’ descriptions of the assailant are

facts sufficient to raise a jury question.
Finally, even though the first two assaults occurred four-

and-a-half and five years before the assault on A.H., Rockingham

knew that the assailant in the first two attacks had never been

apprehended. Thus, when the third assault occurred, four months

before the assault on A.H., and the victim provided a description

of the assailant remarkably similar to those given by the first

two victims, it was then reasonably foreseeable that the danger

to Rockingham's carriers still existed.

For these reasons, I would reverse the trial court’s
judgment sustaining the motions to strike the evidence and remand

the case for a new trial.