Legal Research AI

Burns v. Johnson

Court: Supreme Court of Virginia
Date filed: 1995-06-09
Citations: 458 S.E.2d 448, 250 Va. 41
Copy Citations
21 Citing Cases
Combined Opinion
Present:   All the Justices


JAMES P. BURNS, JR.,
T/A SOUTH NORFOLK AMOCO
                              OPINION BY JUSTICE A. CHRISTIAN COMPTON
v.   Record No. 941465                         June 9, 1995

TUWANNA E. JOHNSON


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                     Thomas S. Shadrick, Judge


      In this appeal, the sole question is whether an invitee

presented sufficient evidence to establish a duty upon the owner

of land to protect the invitee from the criminal act of a third

person committed while the invitee was upon the premises.     We

answer that question in the negative.
      Appellee Tuwanna E. Johnson filed a motion for judgment

against appellant James P. Burns, Jr., trading as South Norfolk

Amoco, seeking damages for negligently inflicted personal

injuries sustained when she was abducted from defendant's

premises and raped.   In a May 1994 trial, after the court

overruled defendant's several motions to strike the plaintiff's

evidence, a jury found for the plaintiff and assessed her damages

at $175,000.   The trial court entered judgment on the verdict

after overruling defendant's motion to set it aside.     We awarded

defendant this appeal.

      According to settled appellate principles, we shall recite

the facts in the light most favorable to the plaintiff.     In the

early morning hours of April 12, 1992, defendant's employee,

Denise Breaker, was on duty alone as the cashier at a self-

service gasoline station situated on property owned by defendant
in the city of Chesapeake.   The employee was working in a locked,

glass-enclosed booth equipped with bullet-proof glass, two

telephones, a silent alarm, and three television monitors.

Cigarettes, candy, and similar items were dispensed through a

window; there was no store accessible to the public.

     Near 2:00 a.m. on the day in question, a man later

identified as Nathaniel Bryant parked a vehicle at one of the gas

pumps on the premises, walked to the window, and bought a pack of

cigarettes.   Bryant, "a regular customer," was drunk and

repeatedly asked to come "inside of the booth," saying to the

employee, "I want to fuck you."   She refused and "requested him

to leave quite a few times."
     After Bryant had remained on the premises for ten to fifteen

minutes, the plaintiff, a young woman, drove a vehicle onto the

premises and parked at another gas pump.   The plaintiff came to

the window and paid two dollars for gasoline.   According to the

plaintiff, Bryant was standing at the window, and she heard the

employee say to him, "Sir, you have to leave now.   Sir, you have

to leave now."

     The plaintiff returned to her vehicle to pump the fuel.     At

this point, the employee left her position at the window, went to

the rear of the booth because "she needed to do some inventory on

her cigarettes or do something with the cigarettes," according to

a statement the employee later gave to an investigating police

officer.




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     As the plaintiff was pumping the gas, Bryant, a stranger to

the plaintiff, asked if he could help.   She declined the offer

and Bryant "walked away."    He immediately returned, "grabbed" her

arm, and said he would shoot her if she screamed.   He then forced

her into a field adjacent to defendant's premises and raped her.

     In the meantime, the employee returned to the front of the

booth.   She observed through the windows and monitors that "the

man and the woman" were "both gone."    She saw, however, that the

two vehicles remained at the gas pumps, but she "had no reason to

feel" the plaintiff "was in any danger."   She testified that

customers often left their cars at the pumps while they used

telephones or soft-drink machines available on the premises.     The

owner testified that he had "no problem" with cars remaining on

his premises during nighttime because "[i]t helps business" for a

car to be "sitting there."
     A "few minutes" after the employee returned to the front of

the booth, a young male friend of the plaintiff drove past the

premises, recognized the plaintiff's parked vehicle, "pulled in

the gas-station lot and started to look for her."   The friend

called plaintiff's name and asked the employee if she had seen

the plaintiff.   The employee responded, "She was just standing

over there with a gentleman . . . a few minutes ago."   The

employee said that "you better look around for her, because

something is wrong."

     The friend unsuccessfully searched the premises, including




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"behind the booth," for the plaintiff.   He asked the employee "to

call the police," she "looked up," and gave him "an okay."    The

friend then drove away.

     According to the plaintiff, the assailant sexually assaulted

her in the field during a period of one and one-half hours.

During that period, she "heard somebody call out something," but

was too frightened to respond.    Finally, the assailant left her

and drove away from the station.    In a few minutes, she drove

from the premises without speaking to defendant's employee.
     The plaintiff contends that the trial court, in its rulings

on the motions to strike and to set the verdict aside, correctly

decided that a jury question was presented whether defendant's

employee "breached her duty to [the plaintiff] when, with

knowledge that a criminal assault was imminent, she failed to

protect or warn [the plaintiff]."    We disagree.

     At the threshold, the plaintiff must establish a duty upon

the defendant.   The law is settled on this subject.   Virginia

adheres to the rule "that the owner or occupier of land

ordinarily is under no duty to protect an invitee from a third

person'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) (citing Wright v. Webb, 234 Va. 527, 530, 362 S.E.2d

919, 920 (1987)).

     In Wright, we fashioned a narrow, limited exception to the

general rule.    There, we held that an owner or occupier of land,



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"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."   234 Va. at 533, 362 S.E.2d at 922.   This

exception requires "notice of a specific danger just prior to the

assault."   Id.
     In the present case, the evidence utterly fails to establish

that defendant's employee knew a criminal assault was about to

occur on the premises which indicated an imminent probability of

harm to the plaintiff.    The employee was being harassed by a

drunk, regular customer whom she knew and who was making comments

personal to her.   She rejected his vile remarks and his requests

to enter the booth.    There is no evidence that he displayed a

firearm or that she was afraid for her own safety, or for the

safety of any customer.

     When the plaintiff arrived on the scene, the employee did

not perceive the plaintiff was in any danger; no conversation

between the plaintiff and her assailant was overheard by the

employee before she moved to the rear of the booth.   Indeed, the

plaintiff herself testified that "nothing" she observed "at the

time" made her "afraid."   When the employee returned to the

front, she still had no knowledge that any assault was occurring

or was about to occur.    The fact that two vehicles remained



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parked on the premises at nighttime was not an unusual

circumstance.

     When the plaintiff's friend arrived on the property, the

plaintiff already had been abducted and was in the process of

being attacked on adjacent property.     After the friend's

unsuccessful preliminary search for the plaintiff, the employee

indicated that "something is wrong."     However, because this

statement was made after the abduction already had occurred, it

fails as a matter of law to support a conclusion that, before the

plaintiff was forced from defendant's premises, the employee knew

of a specific danger to the plaintiff.
     The question whether a duty of care exists in a negligence

action is a pure question of law.      Fox v. Custis, 236 Va. 69, 74,

372 S.E.2d 373, 375 (1988).   In this case, the trial court erred

in refusing to rule, as a matter of law, that the plaintiff had

failed to establish defendant owed her a duty under these

circumstances.

     Consequently, we will reverse the judgment in favor of the

plaintiff and enter final judgment here for the defendant.
                                         Reversed and final judgment.




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