Dudas v. Glenwood Golf Club, Inc.

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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