Present: All the Justices
MICHAEL H. KELLERMANN, ADMINISTRATOR OF THE ESTATE
OF JAIMEE ELIZABETH KELLERMANN, DECEASED
OPINION BY
CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 081718 November 5, 2009 ∗
PAUL MCDONOUGH, ET AL.
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Daniel T. Balfour, Judge
I.
The primary question that we consider in this appeal is
whether adults who agree to supervise and care for a child owe
a duty to exercise reasonable care in the supervision and care
of that child.
II.
Michael H. Kellermann, administrator of the estate of his
daughter, Jaimee Elizabeth Kellermann, filed a wrongful death
action against Paul McDonough and Paula McDonough (the
McDonoughs). Kellermann alleged in the complaint that Paul
McDonough and Paula McDonough breached numerous duties owed to
Jaimee and as a result of such breaches Jaimee died. The
McDonoughs filed a demurrer to the complaint asserting, among
other things, that they owed no duties in tort to Jaimee, a
14-year-old child under their supervision and care. Even
∗
The prior opinion in this appeal issued July 17, 2009,
was withdrawn and a rehearing was granted by Order of the
Court dated September 16, 2009.
1
though the circuit court initially overruled the demurrer, the
court subsequently sustained the demurrer and entered an order
dismissing the complaint. Kellermann appeals.
III.
A.
The purpose of a demurrer is to determine whether a
complaint states a cause of action upon which relief may be
granted. Tronfeld v. Nationwide Mutual Ins. Co., 272 Va. 709,
712-13, 636 S.E.2d 447, 449 (2006); Welding, Inc. v. Bland
County Service Auth., 261 Va. 218, 226, 541 S.E.2d 909, 913
(2001). "A demurrer admits the truth of all properly pleaded
material facts. 'All reasonable factual inferences fairly and
justly drawn from the facts alleged must be considered in aid
of the pleading. However, a demurrer does not admit the
correctness of the pleader's conclusions of law.' " Dodge v.
Randolph-Macon Woman's College, 276 Va. 1, 5, 661 S.E.2d 801,
803 (2008) (citations omitted); accord Tronfeld, 272 Va. at
713, 636 S.E.2d at 449; Fuste v. Riverside Healthcare Ass’n,
265 Va. 127, 131-32, 575 S.E.2d 858, 861 (2003). With these
principles in mind, we will consider the litigants' arguments.
2
B.
Kellermann pled the following facts in his complaint that
are relevant to our disposition of this appeal. Michael
Kellermann and Elizabeth Kellermann (the Kellermanns) were the
natural parents of Jaimee Kellermann. At the time of the
events described in the complaint, they lived in Wake Forest,
North Carolina.
In December 2004, the McDonoughs, husband and wife who
resided in Henrico County, informed the Kellermanns that the
McDonoughs' daughter, Becka McDonough, was "having a 'tough
time of it.' " The McDonoughs told the Kellermanns that
Becka’s "outlook and mood" might improve if she spent time
with her former classmate, Jaimee, who had moved from Henrico
County with her family to North Carolina in 2002. The
McDonoughs asked the Kellermanns if "Jaimee Kellermann could
stay a night or two at the McDonoughs' home."
The Kellermanns agreed that Jaimee could spend one night
with the McDonoughs and Becka. On Saturday, December 4, 2004,
Michael Kellermann left his home with Jaimee and traveled 150
miles, approximately half the distance between their home in
North Carolina and Richmond, Virginia, where they met Paula
McDonough and Becka. "Michael Kellermann asked . . . Paula
McDonough what activities were planned during Jaimee
3
Kellermann's stay at the McDonoughs' home. . . . Paula
McDonough said that they planned to go to the new shopping
mall. . . . Paula McDonough said that she would be taking the
girls to the mall. Michael Kellermann then said that Jaimee
Kellermann was not to be driven by any inexperienced drivers.
He then emphasized that his daughter was not to be in a car
with any young, male drivers, stating 'no boys with cars.'
The rule was intended for Jaimee Kellermann's safety and was a
rule enforced by the Kellermanns at their home." Paula
McDonough agreed and said "'don't worry, I promise we'll take
good care of her,' or words to that effect." Paula McDonough
returned to her home in Henrico County with Jaimee and Becka.
Later that day, Paula McDonough took Jaimee and Becka to
a shopping mall and movie theater complex in Henrico County.
Paula McDonough "dropped the girls off, and drove away,
leaving them unsupervised."
Mary Madelyn Lane (Maddie) joined Becka and Jaimee at the
shopping mall. All the girls were 14 years old and were
former classmates as well as best friends. The girls planned
to go to a movie theater.
Before the girls went to the movie theater, Nathan
DeFrank (Nate), a 17-year-old boy who was Becka's friend,
arrived at the shopping center in his car. Nate had a
reputation for reckless behavior. Allegedly, Becka had "gone
4
street racing with [Nate]; Becka McDonough may have driven the
car at times." Nate had been stopped by police officers
previously because Nate had driven his car more than 20 miles
per hour over the speed limit.
After meeting Nate, the girls attended a movie with Nate
and another young male, Bruce MacConnell, who was 15 years
old. After the movie concluded, Becka spoke, by telephone,
with her mother, Paula McDonough. Becka either asked Paula
McDonough if the girls could obtain a ride home with Nate, or
Becka "informed . . . Paula McDonough that the girls were
going to be driven [home] by [Nate]." Even though the
Kellermanns had instructed Paula McDonough that their
daughter, Jaimee, "was not to be driven by any non-adult
drivers," Paula McDonough "purposefully instructed or
otherwise permitted the girls to go home with [Nate] in his
car."
Jaimee and Maddie did not want to ride in the car with
Nate. After learning that Paula McDonough had directed the
girls to obtain a ride home with Nate, Jaimee and Maddie
"separated from Becka McDonough, [Nate], and Bruce." Jaimee
and Maddie tried to contact, by telephone, Maddie's father,
mother and brother. Jaimee and Maddie were unable to contact
them. Jaimee and Maddie also tried to contact one other
person, by telephone, but they were not successful.
5
Jaimee and Maddie reluctantly got into Nate's car about
10:00 p.m. Nate began to "drive wildly." "On a two-lane,
winding road, [Nate] drove [his car] at speeds that at times
approached or exceeded 80 miles per hour." Jaimee and Maddie,
"clutching each others['] hands in the back seat, begged
[Nate] to slow down or to let them out. At one point, while
driving at or over 25 miles per hour, [Nate] opened his door
and told Jaimee Kellermann and Maddie Lane they could get out
of the moving car if they wished."
"Fearing for her life, Jaimee Kellermann sent a 'text
message' to her father and a friend. She said to her friend
in real-time messages that: she wanted to go home, that she
wanted to get away from the 'guys,' and that she feared she
would 'die.' She also said that 'they're planning on street
racing.' "
As Nate drove his car, he approached oncoming "headlights
in the distance. [Nate] slammed on the brakes and pulled the
hand brake. [His] car skidded and the front end spun to the
right side of the road, causing the rear left passenger side
of the car, where Jaimee Kellermann was seated, [to leave the
road and] slam into a tree. The car recoiled off the tree and
came to rest in the roadway. The car left a skid mark 173
feet long, and a 'yaw mark' that measured 92 feet." When Nate
6
lost control of his car, he was traveling at least 77 miles
per hour.
Jaimee was transported by helicopter to the Virginia
Commonwealth University Medical Center, where she died the
next morning. Paula McDonough was informed of the car
accident and she went to the hospital. She repeatedly told
Maddie's parents "that she feared that she was 'going to be
sued' for directing the girls to go in [Nate]'s car, which
violated the Kellermann's clear instructions."
IV.
A.
Kellermann argues that he pled a cause of action in tort
against the McDonoughs and that they owed a duty of care to
Jaimee. Kellermann alleged that Jaimee was a 14-year-old
minor; she was visiting the McDonoughs' home at their
invitation; she was dependent upon the McDonoughs to make wise
decisions about her care and safety; and the McDonoughs
breached this duty of care. Responding, the McDonoughs argue
that they owed no duty of care to Jaimee, and hence the
circuit court properly sustained their demurrer. We disagree
with the McDonoughs' argument.
We have stated that a "plaintiff who seeks to establish
actionable negligence must plead the existence of a legal
duty, violation of that duty, and proximate causation which
7
results in injury." Delk v. Columbia/HCA Healthcare Corp.,
259 Va. 125, 132, 523 S.E.2d 826, 830 (2000); accord Marshall
v. Winston, 239 Va. 315, 318, 389 S.E.2d 902, 904 (1990); Fox
v. Custis, 236 Va. 69, 73-74, 372 S.E.2d 373, 375 (1988);
Chesapeake and Potomac Tel. Co. v. Dowdy, 235 Va. 55, 61, 365
S.E.2d 751, 754 (1988); Trimyer v. Norfolk Tallow Co., 192 Va.
776, 780, 66 S.E.2d 441, 443 (1951).
The issue whether a legal duty in tort exists is a pure
question of law. Yuzefovsky v. St. John's Wood Apartments,
261 Va. 97, 106, 540 S.E.2d 134, 139 (2001); Burns v. Johnson,
250 Va. 41, 45, 458 S.E.2d 448, 451 (1995). If the
allegations in a complaint are legally sufficient to establish
the existence of a duty, then a jury, upon consideration of
the evidence, must determine whether the duty has been
performed. Yuzefovsky, 261 Va. at 106, 540 S.E.2d at 139;
Acme Markets, Inc. v. Remschel, 181 Va. 171, 178, 24 S.E.2d
430, 434 (1943).
The gist of Kellermann's claim against the McDonoughs is
that they had a common law duty to supervise and care for
Jaimee, a 14-year-old child who was dependent upon the
McDonoughs' care and supervision. We agree with Kellermann
that he pled a common law cognizable cause of action in
negligence against the McDonoughs. We hold that when a parent
relinquishes the supervision and care of a child to an adult
8
who agrees to supervise and care for that child, the
supervising adult must discharge that duty with reasonable
care. However, such adult who agrees to supervise and care
for a child upon the relinquishment of that care and
supervision by the child's parent is not an insurer of the
child's safety. Rather, the supervising adult must discharge
his or her duties as a reasonably prudent person would under
similar circumstances.
In this case, Kellermann pled sufficient facts that
support the existence of this common law duty. As we have
already stated, both Paula and Paul McDonough invited Jaimee
to visit their family, and the McDonoughs knew Jaimee was a
14-year-old child. Kellermann alleged that Jaimee was in the
care of the McDonoughs for approximately two days, that she
was dependent upon their supervision and care, that they
breached their duty to supervise and care for her, and that
she died as a result of the McDonoughs' breaches of duty.
We note that our holding is consistent with the majority
rule embraced by most states that have considered the issue
whether an adult who agrees to supervise and care for a minor
has a duty in tort to exercise reasonable care in the
supervision of that minor. See e.g., Laite v. Baxter, 191
S.E.2d 531, 534 (Ga. Ct. App. 1972) (" 'measure of precaution
which must be taken by one having a child in his care, who
9
stands in no relation to the child except that he has
undertaken to care for it, is that care which a prudent person
would exercise under like circumstances' ") (citation
omitted); Putney v. Keith, 98 Ill. App. 285, 291 (Ill. App.
Ct. 1901) ("that which is ordinary care as respects adults,
may not be as regards children; nevertheless, as regards
children as well as adults, the care of persons having no
special relation to them, required by law, is that which
prudent people exercise under like circumstances"); Hernandez
v. Toney, 289 So. 2d 318, 320 (La. Ct. App. 1973) ("'[t]he
general rule, however, is that a person who undertakes the
control and supervision of a child has the duty to use
reasonable care commensurate with the reasonably foreseeable
risks of harm'"); Zalak v. Carroll, 205 N.E.2d 313, 313 (N.Y.
1965) ("[e]ven without compensation, when defendants undertook
to control a young child and provide care for her, they became
responsible for her injury through their negligence" and "were
required to use reasonable care to protect the infant
plaintiff from injury").
If this Court were to agree with the McDonoughs, that
they do not owe a duty in tort to supervise and care for a
child whose parents have relinquished such supervision and
control to them, such holding would yield absurd results. For
example, an adult who agreed to supervise and care for a group
10
of four-year-old children could permit the youngsters to play
in a street at a dangerous and busy intersection, and yet that
supervising adult would not be subject to tort liability for
her negligent supervision and care. Additionally, under the
McDonoughs' view of this case, an adult who agreed to baby-sit
and care for a group of four-year-old boys in her home
overnight could allow the boys to play with loaded pistols
without being subject to any tort liability in the event one
of the boys fired a pistol and killed another child.
B.
Kellermann argues that he pled sufficient facts in his
complaint that would support a conclusion that Paul McDonough
and Paula McDonough assumed a duty to Jaimee and that they
were required to discharge that duty with reasonable care.
Continuing, Kellermann asserts that the circuit court erred by
sustaining the demurrer to his claim of assumption of a duty.
Responding, the McDonoughs contend that Kellermann failed to
plead a viable cause of action for assumption of a duty in
tort by them. Additionally, Paul McDonough assigns as cross-
error the circuit court's failure to sustain the demurrer
filed on his behalf because the only allegations of alleged
liability on his part regarding this claim involved the
conduct of his wife.
11
This Court has recognized on many occasions that "[i]t is
ancient learning that one who assumes to act, even though
gratuitously, may thereby become subject to the duty of acting
carefully, if he acts at all." Nolde Bros. v. Wray, 221 Va.
25, 28, 266 S.E.2d 882, 884 (1980) (quoting Glanzer v.
Shepard, 135 N.E. 275, 276 (N.Y. 1922)). We recently restated
this principle in Fruiterman v. Granata, 276 Va. 629, 645, 668
S.E.2d 127, 136 (2008) and Didato v. Strehler, 262 Va. 617,
628, 554 S.E.2d 42, 48 (2001). Accord Ring v. Poelman, 240
Va. 323, 326, 397 S.E.2d 824, 826 (1990); Cofield v. Nuckles,
239 Va. 186, 192, 387 S.E.2d 493, 496 (1990).
In Didato, we observed that the common law principle of
assumption of a duty is embodied in the Restatement (Second)
of Torts § 323:
" 'One who undertakes, gratuitously or for
consideration, to render services to another which
he should recognize as necessary for the protection
of the other's person or things, is subject to
liability to the other for physical harm resulting
from his failure to exercise reasonable care to
perform his undertaking, if
"(a) his failure to exercise such care
increases the risk of such harm, or
"(b) the harm is suffered because of the
other's reliance upon the undertaking.' "
Didato, 262 Va. at 629, 554 S.E.2d at 48.
Applying our well established jurisprudence, we hold that
Kellermann pled a cause of action cognizable in tort against
Paula McDonough on the theory that she assumed a duty to
12
Jaimee. As we have already stated, Kellermann pled that he
and his wife allowed their daughter, Jaimee, to spend a night
at the McDonoughs' home in Henrico County. Michael Kellermann
specifically told Paula McDonough that Jaimee was "not to be
driven by any inexperienced drivers" and he emphasized that
Jaimee "was not to be in a car with any young, male drivers,
stating 'no boys with cars.' " Kellermann alleged that Paula
McDonough agreed and said " 'don't worry, I promise we'll take
good care of her,' or words to that effect." Kellermann also
alleged that Paula McDonough breached the duty that she
assumed and, as a proximate cause of that breach, his daughter
was killed in the car accident. Hence, Kellermann pled that
Paula McDonough undertook a duty to render services to Jaimee,
that Paula McDonough breached this duty, and the breach was a
proximate cause of Jaimee’s injuries and death.
Kellermann, however, failed to plead a cause of action in
tort based upon assumption of a duty against Paul McDonough.
The complaint contains no allegations that would permit the
finder of fact to find that Paul McDonough assumed any duty of
care to Jaimee. Indeed, according to the allegations in the
complaint, Paul McDonough was not present when Paula McDonough
assumed the duty to exercise reasonable care to prevent Jaimee
from riding in cars driven by inexperienced drivers or young
male drivers.
13
Contrary to the assertion in Justice Kinser’s concurrence
and dissent, Kellermann repeatedly contended in the circuit
court and in this Court that the McDonoughs owed a common law
duty of care to his daughter, Jaimee. For example, Kellermann
pled in his complaint that the McDonoughs “had a duty . . . to
provide ordinary and reasonable care to Jaimee Kellermann.
These duties included, but were not limited to, the obligation
of the [McDonoughs] to exercise ordinary and reasonable care
in transporting Jaimee Kellermann while she stayed at the
McDonoughs’ home.” Additionally, Kellermann alleged that the
McDonoughs were negligent in “failing to exercise ordinary and
reasonable care or otherwise failing to reasonably provide for
the safety of Jaimee Kellermann.”
Kellermann also asserted in the circuit court that the
McDonoughs “owed clear duties to Jaimee Kellermann, including
the duty to provide her with safe transportation and adequate
supervision.” Additionally, during a hearing in the circuit
court, Kellermann argued that the McDonoughs owed numerous
duties to Jaimee, including a duty to care for her.
Kellermann stated that the McDonoughs, “when they took
[Jaimee] in, had a duty to ensure that if she got ill, she[]
[would] be taken to a doctor, to feed her, to give her
shelter, and to provide her safe transportation.”
14
In this Court, Kellermann asserts in an assignment of
error that the circuit court erred by sustaining the demurrer
to his negligence claim because he pled sufficient facts that
constituted a sufficient cause of action against the
McDonoughs. Kellermann also argues in his brief, filed in
this Court, that an adult who accepts responsibility for the
supervision of a child has a duty to exercise reasonable care.
Code § 8.01-384(A) states:
“No party, after having made an objection or motion
known to the court, shall be required to make such
objection or motion again in order to preserve his
right to appeal, challenge, or move for
reconsideration of, a ruling, order, or action of
the court. No party shall be deemed to have agreed
to, or acquiesced in, any written order of a trial
court so as to forfeit his right to contest such
order on appeal except by express written agreement
in his endorsement of the order. Arguments made at
trial via written pleading, memorandum, recital of
objections in a final order, oral argument reduced
to transcript, or agreed written statements of facts
shall, unless expressly withdrawn or waived, be
deemed preserved therein for assertion on appeal.”
We recently discussed this statute this year in Helms v.
Manspile, 277 Va. 1, 6, 671 S.E.2d 127, 129 (2009). We stated
in Helms that “[o]nce a litigant informs the circuit court of
his or her legal argument, ‘[i]n order for a waiver to occur
within the meaning of Code § 8.01-384(A), the record must
affirmatively show that the party who has asserted an
objection has abandoned the objection or has demonstrated by
his conduct the intent to abandon that objection.’ ” Id.
15
(quoting Shelton v. Commonwealth, 274 Va. 121, 127-28, 645
S.E.2d 914, 917 (2007)); accord King v. Commonwealth, 264 Va.
576, 581, 570 S.E.2d 863, 865-66 (2002); Chawla v.
BurgerBusters, Inc., 255 Va. 616, 623, 499 S.E.2d 829, 833
(1998). Based on the record, Kellermann raised the issue
whether the McDonoughs owed a common law duty of care to
Jaimee and Kellermann never waived this legal argument.
C.
Kellermann argues that the circuit court erred in
sustaining the demurrer because the McDonoughs owed Jaimee a
duty to exercise reasonable care in controlling the conduct of
third parties to prevent her from harm. We disagree with
Kellermann's contention.
We have consistently held that "generally a person does
not have a duty to protect another from the conduct of third
persons." Didato, 262 Va. at 629, 554 S.E.2d at 49; accord
Taboada v. Daly Seven, Inc., 271 Va. 313, 322, 626 S.E.2d 428,
432 (2006); Delk, 259 Va. at 134-35, 523 S.E.2d at 832; A.H.
v. Rockingham Publishing Co., 255 Va. 216, 220, 495 S.E.2d
482, 485 (1998); Burdette v. Marks, 244 Va. 309, 311, 421
S.E.2d 419, 420 (1992). However, this general rule does not
apply when a special relationship exists between a defendant
and a plaintiff that gives rise to a right to protection to
the plaintiff or between the defendant and third persons that
16
imposes a duty upon the defendant to control the conduct of
the third person causing reasonably foreseeable danger to the
plaintiff. Taboada, 271 Va. at 323-24, 626 S.E.2d at 432-33;
Didato, 262 Va. at 630, 554 S.E.2d at 49; Delk, 259 Va. at
134-35, 523 S.E.2d at 832; A.H., 255 Va. at 220, 495 S.E.2d at
485; Burdette, 244 Va. at 312, 421 S.E.2d at 420.
Examples of special relationships that we have recognized
between a defendant and a plaintiff include common carrier-
passenger, business proprietor-invitee, innkeeper-guest, and
employer-employee with regard to the employer's potential duty
of protecting or warning an employee. Even though this list
of relationships that give rise to a special relationship is
not exhaustive, A.H., 255 Va. at 220, 495 S.E.2d at 485, we
perceive of no reason to expand our jurisprudence regarding
special relationships to include an adult who agrees to
supervise and provide care to a minor. Therefore, we hold
that the circuit court did not err when it sustained the
demurrer on this basis.
In view of our holding that the Kellermanns have failed
to establish a special relationship as we have defined this
particular legal concept in our jurisprudence, proof of
foreseeability in order to create a duty is not necessary.
The duties that do exist in this case are a general duty of
ordinary care and an assumed duty. And, as discussed in part
17
IV. D, infra, of this opinion, the Kellermanns must establish
proximate causation in order to impose liability upon the
McDonoughs.
D.
The McDonoughs argue that based upon the complaint, as a
matter of law, Nate's "actions were the sole proximate cause
of Jaimee Kellermann's death" and therefore, they could not be
liable in tort to her. We disagree with the McDonoughs.
Generally, issues of negligence and proximate causation
are questions of fact for the jury's determination. Moses v.
Southwestern Va. Transit Mgmt. Co., 273 Va. 672, 679, 643
S.E.2d 156, 160 (2007); Jenkins v. Payne, 251 Va. 122, 128,
465 S.E.2d 795, 799 (1996); Brown v. Koulizakis, 229 Va. 524,
531, 331 S.E.2d 440, 445 (1985); Armstrong v. Rose, 170 Va.
190, 200, 196 S.E. 613, 616 (1938). "'The proximate cause of
an event is that act or omission which, in natural and
continuous sequence, unbroken by an efficient intervening
cause, produces the event, and without which that event would
not have occurred.'" Beverly Enterprises-Virginia v. Nichols,
247 Va. 264, 269, 441 S.E.2d 1, 4 (1994) (quoting Coleman v.
Blankenship Oil Corp., 221 Va. 124, 131, 267 S.E.2d 143, 147
(1980)); accord Williams v. Le, 276 Va. 161, 167, 662 S.E.2d
73, 77 (2008); Beale v. Jones, 210 Va. 519, 522, 171 S.E.2d
851, 853 (1970). There may be more than one proximate cause
18
of an event. Williams, 276 Va. at 167, 662 S.E.2d at 77;
Atkinson v. Scheer, 256 Va. 448, 454, 508 S.E.2d 68, 71
(1998); Panousos v. Allen, 245 Va. 60, 65, 425 S.E.2d 496, 499
(1993); Coleman, 221 Va. at 131, 267 S.E.2d at 147. "A
subsequent proximate cause may or may not relieve a defendant
of liability for his negligence." Williams, 276 Va. at 167,
662 S.E.2d at 77.
We have stated:
" 'In order to relieve a defendant of liability for
his negligent act, the negligence intervening
between the defendant's negligent act and the injury
must so entirely supersede the operation of the
defendant's negligence that it alone, without any
contributing negligence by the defendant in the
slightest degree, causes the injury.' "
Atkinson, 256 Va. at 454, 508 S.E.2d at 71-72 (quoting
Jenkins, 251 Va. at 129, 465 S.E.2d at 799) (emphasis
omitted); accord Williams v. Joynes, 278 Va. 57, 63, 677
S.E.2d 261, 264 (2009); Panousos, 245 Va. at 65, 425 S.E.2d at
499; City of Richmond v. Gay, 103 Va. 320, 324, 49 S.E. 482,
483 (1905). We have emphasized that "a superseding cause of
an injury 'constitutes a new effective cause and operates
independently of any other act, making it and it only the
proximate cause of injury.' " Jenkins, 251 Va. at 129, 465
S.E.2d at 799 (quoting Maroulis v. Elliott, 207 Va. 503, 511,
151 S.E.2d 339, 345 (1966)); accord Joynes, 278 Va. at 63, 677
S.E.2d at 264; Atkinson, 256 Va. at 454, 508 S.E.2d at 72;
19
Dickenson v. Tabb, 208 Va. 184, 191, 156 S.E.2d 795, 801
(1967). We also note that:
"[N]ot every intervening cause is a superseding cause.
In order to relieve a defendant of liability for his
negligence, negligence intervening between the
defendant's negligence and the injury 'must so entirely
supersede the operation of the defendant's negligence
that it alone, without the defendant's [negligence
contributing] thereto in the slightest degree, produces
the injury.' Richmond v. Gay, 103 Va. 320, 324, 49 S.E.
482, 483 (1905). Furthermore, an intervening cause is
not a superseding cause if it was 'put into operation by
the defendant's wrongful act or omission.' Jefferson
Hospital, Inc. v. Van Lear, 186 Va. 74, 81, 41 S.E.2d
441, 444 (1947)."
Coleman, 221 Va. at 131, 267 S.E.2d at 147; accord Joynes, 278
Va. at 63, 677 S.E.2d at 264.
Based upon the above legal principles, if Kellermann
presents evidence at a trial to prove the factual allegations
in the complaint, and the jury finds that the McDonoughs
breached their duty of care and supervision of Jaimee, a jury
could also find that their breaches of duty constituted a
proximate cause of Jaimee's death and that Nate's acts were
not the sole proximate cause of her death. Additionally, if a
jury finds that Paula McDonough assumed a duty to Jaimee to
exercise reasonable care to provide safe transportation for
Jaimee and to prevent her from riding in cars with young males
and Paula McDonough breached that duty, the jury could also
find that Paula McDonough's breach of that duty was a
proximate cause of Jaimee's death.
20
V.
In conclusion, we hold as follows. Kellermann pled a
cause of action for negligence against the McDonoughs because
he alleged that they breached a common law duty in tort by
failing to supervise and care for Jaimee when her parents
relinquished supervision and care to the McDonoughs and the
McDonoughs agreed to supervise and care for Jaimee.
Kellermann also pled a viable cause of action against Paula
McDonough on the basis that she assumed a duty to Jaimee.
Kellermann failed to plead a cause of action based upon
assumption of a duty against Paul McDonough and the circuit
court erred by failing to sustain the demurrer on this basis.
Paul McDonough and Paula McDonough did not have a special
relationship with Jaimee and, therefore, they had no duty to
protect her from the criminal acts of third parties based on
this theory of negligence. Finally, Nate's acts did not
constitute, as a matter of law, a superseding act between the
McDonoughs' alleged negligent acts and Jaimee's death.
We will remand this proceeding to the circuit court for a
trial on Kellermann's claims of assumption of a duty against
Paula McDonough and breach of a common law tort duty of
supervision and care against both McDonoughs.
Affirmed in part,
reversed in part,
and remanded.
21
JUSTICE KOONTZ, with whom JUSTICE KINSER joins, concurring in
part and dissenting in part.
I respectfully dissent. At its core, this case involves
the tragic death of a fourteen year old child, Jaimee
Elizabeth Kellermann, who died as a result of an automobile
accident caused by the criminal acts of the juvenile operator
of the vehicle in which she was a passenger during the time in
which Jaimee was a social guest in the home of Paul and Paula
McDonough, the parents of her friend Becka McDonough. Today,
for the first time in this Commonwealth, a majority of this
Court under these factual circumstances fashions a generalized
common law duty upon a host parent to “supervise and care” for
a child guest “when a parent relinquishes the supervision and
care of [that] child to an adult who agrees to supervise and
care for that child.” In my view, the majority’s
characterization of this common law duty is too broad, both
because in this case it is made applicable to the criminal
acts of a third party not occurring on the premises of the
host parent and also because it implicitly makes the host
parent the virtual insurer of the guest child’s safety despite
the majority’s disclaimer to the contrary.
Justice Kinser in her dissenting opinion in this case
takes a persuasive view that the common law duty to supervise
and care for Jaimee now fashioned by the majority in this case
22
is not a theory of liability before this Court in this appeal.
Indeed, Justice Kinser correctly observes that the circuit
court when ruling on the McDonoughs’ demurrer specifically
identified the issues to be resolved as those involving a
“special relationship” from which a duty to protect Jaimee
might arise and proximate cause. The theory of liability
premised upon a special relationship upon which a duty to
protect a person from the criminal acts of a third party can
arise is distinctly different from a theory of liability
premised upon the assumption of a specific duty to care and
protect another. In this case, there is no dispute that
Michael H. Kellermann, in his capacity as the administrator of
Jaimee’s estate, asserted both of these theories of liability
against the McDonoughs. However, because the majority also
addresses the theory of a common law duty and I cannot concur
with the majority’s analysis of that issue, I write separately
here on that issue.
In Virginia, we adhere to the rule that “[g]enerally, a
person does not have a duty to protect another from the
conduct of third persons.” Delk v. Columbia/HCA Healthcare
Corp., 259 Va. 125, 132, 523 S.E.2d 826, 830 (2000). While we
have recognized a narrow exception to this general rule when a
“special relationship” exists between the defendant and the
plaintiff, see, e.g., Thompson v. Skate America, Inc., 261 Va.
23
121, 129, 540 S.E.2d 123, 127 (2001), in the present case
neither the plaintiff nor the majority is able to cite to any
prior decision of this Court which, in the absence of a
finding of a special relationship, creates an exception to
this general rule in the context of a guest child and host
adult with regard to the criminal acts of a third person
causing harm to the child. Additionally, it is notable that
the cases relied upon by the majority provide little, if any,
support for a holding that essentially creates a broad
exception to this general rule.
Laite v. Baxter, 191 S.E.2d 531 (Ga. Ct. App. 1972),
involved a twelve year old boy who died from injuries he
received when he slipped and fell on wet rocks below a dam
while he was on an outing as the guest of the parents of his
friend. While recognizing a general rule that “a person who
undertakes the control and supervision of a child, even
without compensation, has the duty to use reasonable care to
protect the child from injury,” the court stressed that such a
person “is required only to use reasonable care commensurate
with the reasonably foreseeable risk of harm” to the child.
Id. at 534. In finding no liability on the part of the
supervising adult, the court reasoned that the danger of the
wet rocks was open and obvious, that the child appreciated
that danger and, thus, that the incident was “nothing more
24
than an accident, for which no one can be held [liable].” Id.
at 536. Laite, unlike the present case, did not involve the
criminal acts of a third party.
Putney v. Keith, 98 Ill. App. 285 (Ill. App. Ct. 1901),
involved a two year old child who fell into a tub of hot water
on the floor of the kitchen and died as a result of her
injuries while a guest in the home of an adult who used the
hot water for housecleaning purposes. In finding no liability
on the part of the adult, the court reasoned that placing
“tubs of hot water upon a floor of the kitchen, to which small
children have access, for the purpose of cleaning the room, is
an ordinary occurrence, and an act such as prudent people
perform in the discharge of household duties.” Id. at 290.
Again, unlike the present case, Putney did not involve the
criminal acts of a third party.
Zalak v. Carroll, 205 N.E.2d 313 (N.Y. 1965), involved a
four year old child who was injured when a faulty swing set on
the defendants’ premises fell on her during the time the
defendants had assumed the duty to care for the child while
her mother was at work. Id. at 313. The court held that the
defendants owed a duty to maintain their premises in a
reasonably safe condition, and they had breached that duty.
Id. Again, Zalak was a premises liability case and did not
involve the criminal acts of a third party.
25
Finally, the majority cites Hernandez v. Toney, 289 So.2d
318 (La. Ct. App. 1973), which involved a young child who was
injured when he left the fenced playground of the apartment
complex in which he lived with his mother and was accidentally
struck and injured by a car driven by a third person in a
nearby parking lot. One of the defendants was the apartment
manager who had ordered the child to leave the playground
after observing the child throwing dirt in the face of the
manager’s child. The court reasoned that the manager
“undertook control and supervision of [the child, and] assumed
the duty to use reasonable care to protect the child from
injury,” and he “breached this duty by ordering [the child]
from the fenced playground without escorting him the short
distance to his home or notifying his mother that he was no
longer in the playground.” Id. at 321. The court further
reasoned that the manager “could easily have foreseen the
result of his action.” Id. In Hernandez, the driver of the
vehicle was not found to be negligent. Id. at 323. At best,
Hernandez supports a finding of a duty of care when the
supervising adult assumes a specific duty of care.
In the present case, the majority concludes that “we
perceive of no reason to expand our jurisprudence regarding
special relationships to include an adult who agrees to
supervise and provide care to a minor.” I agree and need not
26
unnecessarily lengthen this opinion by repeating the
majority’s citations to our prior cases that support this
conclusion. However, it is to be noted that our prior cases
make clear that it is the finding of a special relationship
between a defendant and a plaintiff that gives rise to a duty
upon the defendant to protect the plaintiff from the harmful
acts of a third person, and that duty is an exception to the
general rule that no such duty exists at common law. In this
regard, we have cautioned that application of exceptions to
this general rule “is always fact specific and, thus, not
amenable to a bright-line rule for resolution.” Yuzefovsky v.
St. John’s Wood Apartments, 261 Va. 97, 106, 540 S.E.2d 134,
139 (2001). We have also cautioned that each particular
factual circumstance must be carefully analyzed “to avoid
permitting the narrow exception to swallow the general rule.”
Dudas v. Glenwood Golf Club, Inc., 261 Va. 133, 139, 540
S.E.2d 129, 132-33 (2001).
In this case it has been determined that no “special
relationship” existed between Jaimee and the McDonoughs in her
capacity as a guest in their home. Jaimee was fatally injured
as a result of the criminal acts of a third person. Those
acts did not occur on the premises or in the presence of the
McDonoughs. Nor were those acts committed by a person under
the control of the McDonoughs. Until today, under such
27
factual circumstances, our prior cases have not recognized an
exception to the general rule that a person does not have a
duty to protect another from the criminal acts of a third
person. In my view, to fashion a generalized, common law duty
to “supervise and care” for a child guest, such as Jaimee,
upon adult hosts, such as the McDonoughs, so as to impose
potential liability upon the adult hosts for the criminal acts
of a third party which harm the child under the circumstances
of the present case effectively permits an exception to
swallow the general rule. Accordingly, I would hold that
Kellermann did not plead a viable cause of action against the
McDonoughs on the basis that they breached a duty in tort by
failing to supervise and care for Jaimee.
It is a matter of common knowledge and experience that
parents frequently invite friends of their children to visit
in their homes as their guests for periods of time.
Certainly, such visits can be both enjoyable and beneficial to
the children. While the parents undoubtedly assume a degree
of responsibility for the care and safety of the guest
children during these visits, the parents, as recognized by
the majority in this case, are not the insurers of these
childrens’ safety during the visits. The duty to “supervise
and care” fashioned by the majority in this case, however, is
potentially broad enough to bring that proposition into
28
serious question. I simply take this opportunity to assure
host parents in this Commonwealth that the host parent in this
case, Paula McDonough, assumed a specific duty not to permit
her guest child to be transported by a juvenile driver and her
potential liability for breaching that duty, if proven at
trial, does not make her an insurer of the guest child’s
safety, and I am confident that the majority does not intend
to suggest otherwise.
I respectfully concur with that portion of the majority’s
opinion holding that Kellermann failed to plead a viable cause
of action against Paul and Paula McDonough on the basis that
they had a special relationship with Jaimee and, therefore,
they had a duty to protect her from the criminal acts of a
third party. I also concur with those portions of the opinion
holding that Kellermann pled a viable cause of action against
Paula, and not Paul, on the basis of assumption of a specific
duty to Jaimee and that the acts of the third party did not
constitute, as a matter of law, a superseding act between
Paula’s alleged negligence and Jaimee’s death.
JUSTICE KINSER, concurring in part and dissenting in part.
The threshold question in any negligence case is whether
the defendant owed a duty of care to the plaintiff. Burns v.
Johnson, 250 Va. 41, 44, 458 S.E.2d 448, 450 (1995). The
29
majority addresses three sources of duty that it concludes are
at issue in this appeal: (1) a common law duty to supervise
and care for a minor child during a social visit; (2) an
assumption of duty; and (3) a special relationship. Michael
H. Kellermann, Administrator of the Estate of Jaimee Elizabeth
Kellermann, has asserted, however, only two bases for
liability, assumption of duty and special relationship, before
both the circuit court and this Court. Without explanation,
the majority is departing from the well-established principle
that "an appellate court may not reverse a judgment of the
trial court based upon an alleged error in a decision that was
not made or upon an issue that was not presented." McDonald
v. Commonwealth, 274 Va. 249, 255, 645 S.E.2d 918, 921 (2007).
Thus, I respectfully disagree with the majority's conclusion
that Kellermann pled a common law duty on the part of Paul and
Paula McDonough to supervise and care for Jaimee during her
visit with the McDonoughs. I concur in the majority's holding
with regard to the theories of liability based on assumption
of duty and special relationship. I will address each source
of duty seriatim.
30
I. COMMON LAW DUTY
To demonstrate why a common law duty to supervise and
care for Jaimee is not a theory of liability before us in this
appeal, I will first discuss the proceedings in the circuit
court and Kellermann's arguments before that court, and then
turn to his arguments in this Court.
In his wrongful death action, Kellermann alleged in the
complaint that, by the McDonoughs' inviting Jaimee to their
home for an overnight visit, "a special relationship of care
and trust" existed between the McDonoughs and the Kellermanns.
Kellermann claimed this special relationship gave rise to a
"duty to warn the Kellermanns and/or protect Jaimee Kellermann
from the danger of harm caused by the reasonably foreseeable
wrongful acts of others."
Continuing, Kellermann asserted that since Paula
"agree[d] to comply with the Kellermanns' directive" that
Jaimee was not to be in a vehicle with a young male driver,
the McDonoughs "were required to provide or otherwise ensure
transportation by an experienced, responsible, and safe
driver." Kellermann claimed "the McDonoughs failed to provide
safe transportation" for Jaimee when "the Defendants, through
Defendant Paula McDonough, knowingly, consciously, and
purposefully instructed or otherwise permitted [Jaimee] to go
home with [Nate] DeFrank in his car." Additionally,
31
Kellermann alleged that the McDonoughs agreed "to take Jaimee
Kellermann into Defendants' care" and "promis[ed] Kellermann
to provide Jaimee Kellermann with responsible, adult
supervision."
Finally, Kellermann alleged that the McDonoughs were
"negligent and/or grossly negligent . . . by failing to use
ordinary and reasonable care in transporting [Jaimee] or
otherwise providing for her safe transportation." The
McDonoughs' breach of these duties, according to Kellermann,
was a proximate cause of Jaimee's death. 1
In response to the complaint, the McDonoughs filed a
demurrer, claiming, among other things, that Kellermann failed
to state a cause of action because no duty extended from the
McDonoughs to either Jaimee or her parents. In response,
Kellermann asserted a special relationship arose between
Jaimee and the McDonoughs; "[c]onsequently, the McDonoughs
willingly assumed a myriad of duties to Jaimee and her parents
– among them to feed her, to take her to a doctor if she
became ill, to drive her in a safe manner and to look out for
her welfare like a parent would." The circuit court denied
the demurrer despite its "serious reservations as to whether a
1
Kellermann also alleged breach of an express contract,
breach of an implied contract, and breach of implied
warranties. The circuit court sustained the demurrer as to
these counts, and they are not before us in this appeal.
32
third party, as in this case, can be liable without more in a
non-paid in loco parentis arrangement." The court concluded
that the negligence claim could go forward if Kellermann could
prove a special relationship existed between the McDonoughs
and the Kellermanns.
After filing their answer to the complaint, the
McDonoughs filed a motion to revive their demurrer and a
motion for summary judgment. In support of both motions, the
McDonoughs asserted that, as a matter of law, they owed no
duty to protect Jaimee from the criminal acts of third parties
on the night of the accident because no special relationship
arose between the McDonoughs and Jaimee. They also claimed
that their alleged negligent conduct was not a proximate cause
of the accident and Jaimee's death. Finally, the McDonoughs
asserted the complaint failed to allege sufficient facts to
show that Paul had any involvement in the arrangements for
Jaimee's visit or participated in the decision to allow the
girls to ride in the vehicle driven by DeFrank.
Kellermann opposed the motions. He claimed that a
special relationship did exist between the McDonoughs and
Jaimee. Kellermann also asserted that the McDonoughs
voluntarily "assumed a duty to care for and protect Jaimee
Kellermann, including a duty to provide safe transportation
for her."
33
In a letter opinion, the circuit court enumerated the
issues before it:
1. Whether or not a "special relationship" exists
between the [Kellermanns] and the Defendants.
2. If a special relationship existed, whether or not
a duty was placed upon the Defendants while
acting in loco parentis of the minor during the
weekend visitation.
3. Generally, whether or not there is any basis for
proximate cause of the accident by Defendants.
The circuit court concluded that "the law in Virginia does not
recognize [a special] relationship creating a duty on the
[McDonoughs] that would lead to [the] proximate cause of this
accident." Thus, the court sustained the demurrer without
addressing the remaining two issues.
In my view, it is clear from the pleadings, the parties'
arguments, and the circuit court's findings that Kellermann
never asserted or relied on a common law duty to supervise and
care for a minor. The primary focus in the circuit court was
on the issue concerning whether a special relationship existed
between the McDonoughs and Jaimee. Kellermann also
specifically argued the McDonoughs assumed a duty to care for
and protect Jaimee. The common law duty addressed by the
majority was not mentioned by anyone.
On appeal to this Court, Kellermann argues "the
McDonoughs assumed willingly a myriad of duties to Jaimee –
34
among them, to feed her, to give her shelter in their house,
to take her to a doctor . . . if she became ill, to drive her
in a safe manner, to look out for her welfare, and to protect
her from harm." Kellermann states the McDonoughs "voluntarily
took upon themselves" responsibility for Jaimee and "assumed,
temporarily, at the least the minimum duty to exercise
ordinary care for [Jaimee's] safety." Kellermann also asserts
additional duties on the part of the McDonoughs because a
special relationship existed between them and Jaimee.
In support of his argument regarding assumption of duty,
Kellermann cites this Court's decision in Didato v. Strehler,
262 Va. 617, 554 S.E.2d 42 (2001) and Restatement (Second) of
Torts § 323. With regard to the issue of special
relationship, Kellermann relies on many of this Court's
decisions discussing special relationships that give rise to
an affirmative duty to protect an individual from the
reasonably foreseeable wrongful acts of a third party. See,
e.g., Taboada v. Daly Seven, Inc., 271 Va. 313, 626 S.E.2d 428
(2006); Thompson v. Skate America, Inc., 261 Va. 121, 540
S.E.2d 123 (2001).
While I believe there can be no confusion about
Kellermann's theories of liability, if there is any, he
resolves it in his reply brief. There, Kellermann expressly
refers to "the two bases for negligence liability in this
35
case." Again relying on Didato and Restatement (Second) of
Torts § 323, the first theory of liability, argues Kellermann,
is based on the McDonoughs' own negligent conduct, which
Kellermann describes as the McDonoughs' undertaking "to
supervise and care for Jaimee during her weekend stay at their
home (an obligation that they assumed voluntarily and had
acted upon), including agreeing to provide safe transportation
(free of boys with cars[])." Continuing, Kellermann argues:
"[The McDonoughs] failed to exercise reasonable care in that
undertaking; this failure increased the risk of harm to Jaimee
. . . and led to her tragic death. This basis of liability
comes from [the McDonoughs'] affirmative decision to put
[Jaimee] into harm's way." Then, Kellermann states: "The
second basis for liability is founded on the well-recognized
'special relationship' exception to the rule that, generally,
one does not have a duty to protect another from the wrongful
conduct of a third person."
Nowhere before this Court has Kellermann relied on a
theory of liability based on the common law duty used by
the majority as the basis of its decision. Even assuming
Kellermann initially pled such a duty in his complaint,
he has since waived it by failing to assert that legal
position in the proceedings in the circuit court and now
in this Court. In any event, he affirmatively abandoned
36
any such theory in his reply brief when he specifically
articulated only two bases for liability. The Court
therefore cannot and should not reach the issue. Rule
5:17(c)(4); see McDonald, 274 Va. at 255, 645 S.E.2d at
921 ("the arguments of the parties on appeal . . . must
be limited to issues preserved in the trial court . . .
and to issues presented before the appellate courts[;] an
appellate court may not reverse a judgment of the trial
court based upon an alleged error in a decision that was
not made or upon an issue that was not presented");
Shelton v. Commonwealth, 274 Va. 121, 127-28, 645 S.E.2d
914, 917 (2007) (waiver occurs if the record
affirmatively shows a party has abandoned an objection or
has demonstrated by conduct an intention to abandon the
objection); Bunch v. Commonwealth, 225 Va. 423, 436, 304
S.E.2d 271, 278 (1983) (an issue not raised or ruled on
by a trial court will not be noticed on appeal); Thrasher
v. Thrasher, 210 Va. 624, 628-29, 172 S.E.2d 771, 774
(1970) (a question not raised in the trial court and upon
which the record contains no evidence will not be
considered on appeal); Allaun v. First & Merchs. Nat'l
Bank of Richmond, 190 Va. 104, 113, 56 S.E.2d 83, 88
(1949) (a claim not decided by the trial court will not
be addressed on appeal).
37
Therefore, I respectfully dissent from the majority's
finding that Kellermann pled the existence of a common law
duty to supervise and care for Jaimee. 2 I firmly believe that
this Court's Rules must be applied consistently. Otherwise,
our decisions become arbitrary.
II. ASSUMPTION OF DUTY
Relying on this Court's decision in Didato and the
Restatement (Second) of Torts § 323, Kellermann argues the
McDonoughs undertook the responsibility to care for,
supervise, and provide safe transportation for Jaimee during
her overnight visit, thereby assuming a duty to exercise
reasonable care in performing the undertaking. He further
claims the McDonoughs failed to exercise reasonable care in
2
In light of my conclusion on this issue, it is not
necessary to address the majority's holding that "an adult who
agrees to supervise and care for a minor has a duty in tort to
exercise reasonable care in the supervision of that minor." I
do, however, wholeheartedly agree with Justice Koontz'
dissenting opinion regarding this common law duty. As Justice
Koontz correctly explains, the cases upon which the majority
relies, Laite v. Baxter, 191 S.E.2d 531, 534 (Ga. Ct. App.
1972); Putney v. Keith, 98 Ill. App. 285, 291 (Ill. App. Ct.
1901); Hernandez v. Toney, 289 So. 2d 318, 320 (La. Ct. App.
1973); Zalak v. Carroll, 205 N.E.2d 313, 313 (N.Y. 1965), did
not involve a duty to supervise and care for a minor in the
context of protecting that minor from the wrongful or
negligent acts of a third party, which is the only duty
allegedly breached by the McDonoughs in this case. Given the
nature of the alleged breach, the majority is giving
Kellermann the benefit of a common law duty to protect against
the wrongful acts of a third party without the attendant
restrictions concerning foreseeability that govern liability
38
carrying out that undertaking when they allowed Jaimee to ride
in a vehicle driven by DeFrank and that such failure increased
the risk of harm to Jaimee, leading to her death.
In Didato, the Court decided, among other things, whether
the plaintiffs stated cognizable causes of action against the
defendant healthcare providers on the theory that they had
assumed a duty to exercise reasonable care in the
communication of certain medical information to the plaintiffs
even if no duty existed prior to the undertaking to render
services. 262 Va. at 627-28, 554 S.E.2d at 47. The Court
concluded "the plaintiffs pled sufficient facts which, if
proven at trial, would permit the finder of fact to conclude
that the defendants assumed the duty to convey to the
plaintiffs the correct results of [a medical test]." Id. at
629, 554 S.E.2d at 48. The Court reiterated the legal
principle that "'[i]t is ancient learning that one who assumes
to act, even though gratuitously, may thereby become subject
to the duty of acting carefully, if he acts at all.'" 3 Id. at
628, 554 S.E.2d at 48 (quoting Nolde Bros., Inc. v. Wray, 221
Va. 25, 28, 266 S.E.2d 882, 884 (1980) (quoting Glanzer v.
based on a special relationship. A.H. v. Rockingham Publ'g
Co., 255 Va. 216, 220-21, 495 S.E.2d 482, 485 (1998).
3
This principle is often referred to as the "negligent
undertaking doctrine" or the "Good Samaritan" rule. See
Mukthar v. Latin Am. Sec. Serv., 42 Cal. Rptr. 3d 563, 566
(Cal. Ct. App. 2006).
39
Shepard, 135 N.E. 275, 276 (N.Y. 1922))); accord Fruiterman v.
Granata, 276 Va. 629, 645, 668 S.E.2d 127, 136 (2008); Ring v.
Poelman, 240 Va. 323, 326, 397 S.E.2d 824, 826 (1990); Cofield
v. Nuckles, 239 Va. 186, 192, 387 S.E.2d 493, 496 (1990).
Additionally, the Court referenced with approval
Restatement (Second) of Torts § 323:
One who undertakes, gratuitously or for
consideration, to render services to another which
he should recognize as necessary for the protection
of the other's person or things, is subject to
liability to the other for physical harm resulting
from his failure to exercise reasonable care to
perform his undertaking, if
(a) his failure to exercise such care
increases the risk of such harm, or
(b) the harm is suffered because of the
other's reliance upon the undertaking.
Didato, 262 Va. at 629, 554 S.E.2d at 48.
In Fruiterman, the Court further explained that, for an
assumption of duty to occur in the physician-patient context,
"a physician [must] personally engage[] in some affirmative
act amounting to a render[ing of] services to another." 276
Va. at 646, 668 S.E.2d at 137 (internal quotations and
citation omitted) (second and third alterations in original).
Whether in a physician-patient context or some other
circumstance, the threshold requirement for liability under
the voluntary undertaking theory is that the defendant must
specifically undertake to perform the task with which he or
she is charged as having performed without reasonable care.
40
Temporomandibular Joint (TMJ) Implant Recipients v. Dow Chem.
Co., 113 F.3d 1484, 1493 (8th Cir. 1997); Patentas v. United
States, 687 F.2d 707, 716 (3rd Cir. 1982); Artiglio v. Corning
Inc., 957 P.2d 1313, 1317 (Cal. 1998); Rogers v. Clark Equip.
Co., 744 N.E.2d 364, 368-69 (Ill. App. Ct. 2001); Lather v.
Berg, 519 N.E.2d 755, 766 (Ind. Ct. App. 1988); South v.
McCarter, 119 P.3d 1, 16-17 (Kan. 2005). 4 Without the
defendant's actual undertaking to render a service, there is
no correlative duty to perform the undertaking with reasonable
care. See South, 119 P.3d at 17. The extent of the
undertaking defines the scope of a defendant's duty. TMJ
Implant Recipients, 113 F.3d at 1493; Margaret W. v. Kelley
R., 42 Cal. Rptr. 3d 519, 536 (Cal. Ct. App. 2006); McGee v.
Chalfant, 806 P.2d 980, 983 (Kan. 1991).
The Court has not previously defined the phrase
"voluntary undertaking," nor has the Restatement (Second) of
Torts. One court, however, concluded "voluntarily undertaking
a duty requires some sort of affirmative acknowledgment or
recognition of the duty by the party who undertakes the duty;
4
Some of these cases discuss Restatement (Second) of
Torts § 324A instead of § 323. While the sections state
somewhat different rules, both pertain to a person who
voluntarily undertakes to render services to another and
provide that a person may be liable for failing to take
reasonable care in performing the undertaking. See Browne v.
Turner Constr. Co., 26 Cal. Rptr. 3d 433, 443 & n.4 (Cal. Ct.
App. 2005).
41
in other words, there must be a showing of the party's intent
to undertake the duty." Rogers, 744 N.E.2d at 368-69.
Another court stated, "the term 'undertaking' is potentially
somewhat ambiguous, since it may refer either to a promise
that one will do a thing, or to an actual endeavor or setting-
out to do the thing." Browne v. Turner Constr. Co., 26 Cal.
Rptr. 3d 433, 443 n.5 (Cal. Ct. App. 2005); see also
Restatement (Second) of Torts, § 323, caveat (expressing no
opinion whether "the making of a contract, or a gratuitous
promise, without in any way entering upon performance, is a
sufficient undertaking to result in liability"). I therefore
conclude, as indicated in Fruiterman, 276 Va. at 646, 668
S.E.2d at 137, that, in order to have a voluntary undertaking,
a party must engage in an affirmative act that amounts to a
rendering of services to another and demonstrates the party's
intent to undertake a duty.
Although Kellermann argues that the McDonoughs undertook
the responsibility to care for, supervise, and provide safe
transportation for Jaimee during her overnight visit, his
factual allegations concerning the alleged undertaking are not
so broad in scope. Kellermann specifically alleged that, when
he asked Paula about what activities were planned during
Jaimee's visit, he told Paula that Jaimee was not "to be
driven by any inexperienced drivers" and "emphasized that his
42
daughter was not to be in a car with any young, male drivers,
stating 'no boys with cars.' " According to Kellermann, Paula
"agreed," and said, " '[D]on't worry, I promise we'll take
good care of her.' "
Accepting these allegations as true, see Taboada, 271 Va.
at 317, 626 S.E.2d at 429, I conclude that Paula, by agreeing
to comply with Kellermann's directive that Jaimee not be
allowed to ride in a vehicle driven by an inexperienced and/or
young male driver, and then taking Jaimee with her and her
daughter, Becca McDonough, 5 to Henrico County for the overnight
visit, engaged in an affirmative act that amounted to the
rendering of a service to Jaimee and demonstrated Paula's
intent to assume a duty to protect Jaimee from inexperienced
and/or young male drivers. See Keenan v. Miriam Found., 784
S.W.2d 298, 304 (Mo. Ct. App. 1990) (holding the defendant
assumed a duty to protect the plaintiff from attacks by third
persons as the defendant's employee assured the plaintiff
someone would be present and would help her unload her donated
merchandise because the plaintiff was reluctant to go to the
rear of the shop alone due to the character of the
neighborhood).
5
Although Kellermann initially spelled her name "Becka"
in his pleadings below, he has conformed his spelling of Becca
to the McDonoughs' spelling of their daughter's name in the
briefs before this Court.
43
By this conclusion, I am not suggesting that any time a
parent invites his or her child's friend for a social visit
and assures the friend's parents that the friend will be
supervised and cared for, that parent has voluntarily
undertaken to protect the child from the wrongful acts of
third persons and thereby assumed a duty of care. My
conclusion in the case before us is based on the particular
allegations in the complaint, which if proven at trial, would
sustain a factfinder's determination that Paula voluntarily
and affirmatively undertook to protect Jaimee from a very
specific risk of harm, i.e., the risk of harm associated with
riding in a vehicle driven by an inexperienced and/or young
male driver. The scope of her undertaking was narrow and
defined the extent of her duty to exercise due care in
performing the undertaking. See South, 119 P.3d at 16 ("The
extent of the undertaking defines the scope of the duty.").
Thus, I concur with the majority in this regard and conclude
that Kellermann stated a cause of action against Paula based
on the theory of assumption of duty.
I also concur with the majority's decision as to Paul.
As the McDonoughs assert in their assignment of cross-
error, the complaint contains no factual allegations that
Paul engaged in any undertaking to protect Jaimee from
inexperienced and/or young male drivers. He was not
present when Paula met Kellermann halfway between their
respective homes and was not a party to the conversation
when Paula agreed to Kellermann's directive regarding
Jaimee. Paul's knowledge of and assent to Jaimee's
44
overnight visit were not affirmative acts amounting to
the rendering of a service to Jaimee and did not
demonstrate any intent by Paul to undertake a duty to
protect. Thus, I conclude that Kellermann did not state
a cause of action with regard to Paul.
Before addressing the issue of special relationship, I
find it appropriate at this juncture to turn to the
McDonoughs' remaining assignment of cross-error. Relying on
Robinson v. Matt Mary Moran, Inc., 259 Va. 412, 525 S.E.2d 559
(2000), and Turner v. Lotts, 244 Va. 554, 422 S.E.2d 765
(1992), the McDonoughs contend Paula's decision granting
permission for Jaimee to ride in the vehicle driven by DeFrank
was not a proximate cause of Jaimee's death. In response,
Kellermann asserts the issue of proximate cause is generally a
question of fact for the jury to decide. I agree with
Kellermann.
In Robinson, this Court held that the act of selling
alcoholic beverages, even to an intoxicated person under the
age of 21, is "too remote to be a proximate cause of an injury
to a third party resulting from the negligent conduct of the
purchaser of the beverages." 259 Va. at 417, 525 S.E.2d at
562; accord Williamson v. The Old Brogue, Inc., 232 Va. 350,
353, 350 S.E.2d 621, 623 (1986). Thus, the plaintiff's
pleading in that case was insufficient as a matter of law
because the defendant's act of serving alcohol to an
individual who subsequently drove an automobile negligently,
45
resulting in an accident, was not a proximate cause of the
passenger's death. Robinson, 259 Va. at 417, 525 S.E.2d at
562.
Likewise in Turner, which involved a claim against two
parents for the alleged negligent entrustment of an automobile
to their son, the Court stated that "the plaintiff must prove
that the negligent entrustment of the motor vehicle to the
tortfeasor was a proximate cause of the accident." 244 Va. at
557, 422 S.E.2d at 767 (citations omitted). This Court
concluded that there was no allegation that the son's "conduct
in prior accidents was negligent or that his accident with
[the plaintiff] was a proximate cause of similar negligence."
Id. at 558, 422 S.E.2d at 768.
Neither of these cases is analogous to the factual
scenario presented in the case before us. According to the
allegations in Kellermann's complaint, Paula undertook the
responsibility to protect Jaimee from the specific danger
associated with riding in a vehicle operated by an
inexperienced and/or a young male driver. Paula allegedly
failed to perform that particular undertaking with due care.
Thus, I cannot say in this context that Paula's decision
allowing Jaimee to ride in the vehicle driven by DeFrank is
too remote, as a matter of law, to constitute a proximate
cause of Jaimee's death.
46
A proximate cause of an event is that "act or omission
which, in natural and continuous sequence, unbroken by an
efficient intervening cause, produces the event, and without
which that event would not have occurred." Beale v. Jones,
210 Va. 519, 522, 171 S.E.2d 851, 853 (1970); accord Jenkins
v. Payne, 251 Va. 122, 128, 465 S.E.2d 795, 799 (1996); Banks
v. City of Richmond, 232 Va. 130, 135, 348 S.E.2d 280, 282
(1986). Generally, the issue of proximate causation is a
question of fact to be resolved by a jury. Jenkins, 251 Va.
at 128, 465 S.E.2d at 799 (citing Brown v. Koulizakis, 229 Va.
524, 531, 331 S.E.2d 440, 445 (1985)). In this case, it is a
question for the jury to decide. Thus, I concur with the
majority in holding the circuit court did not err by failing
to sustain the demurrer on this basis.
III. SPECIAL RELATIONSHIP
Kellermann argues that, based on the particular facts of
this case, a special relationship existed between the
McDonoughs and Jaimee because the McDonoughs invited Jaimee to
their home for an overnight visit and undertook the
responsibility of caring for and supervising her. Thus,
according to Kellermann, this special relationship gave rise
to an affirmative duty to protect Jaimee from the reasonably
foreseeable wrongful acts of third persons. The McDonoughs
counter that, while this Court has recognized certain
47
categories of special relationships, such as business
invitor/invitee, innkeeper/guest, common carrier/passenger,
and employer/employee, the "social host/sleepover" situation
alleged here is not a recognized special relationship.
"Generally, a person does not have a duty to protect
another from the conduct of third persons." Delk v.
Columbia/HCA Healthcare Corp., 259 Va. 125, 132, 523 S.E.2d
826, 830 (2000). There is, however, an exception to this
general rule "when a special relationship exists (1) between
the defendant and the plaintiff which gives rise to a right to
protection to the plaintiff, or (2) between the defendant and
the third person which imposes a duty upon the defendant to
control the third person's conduct." Id. at 132, 523 S.E.2d
at 830-31; see also Restatement (Second) of Torts § 315. We
have recognized that a special relationship may exist between
a particular plaintiff and defendant "either as a matter of
law or because of the particular factual circumstances in a
given case, which may give rise to a duty of care on the part
of the defendant to warn and/or protect the plaintiff against
the danger of harm from the reasonably foreseeable criminal
acts committed by a third person." Thompson, 261 Va. at 129,
540 S.E.2d at 127. In that regard, the "special relationships
that may create a duty of care include those of common carrier
and passenger, business proprietor and invitee, innkeeper and
48
guest, and employer and employee." Yuzefovsky v. St. John's
Wood Apts., 261 Va. 97, 108, 540 S.E.2d 134, 140 (2001); see
also A.H. v. Rockingham Publ'g Co., 255 Va. 216, 220, 495
S.E.2d 482, 485 (1998). This list, however, is not exclusive
and the determination whether a special relationship exists is
fact-specific. See Yuzefovsky, 261 Va. at 108, 540 S.E.2d at
140.
Because the imposition of a duty of care to warn and/or
protect a plaintiff from the reasonably foreseeable danger of
harm from the criminal acts of a third party is an exception
to the general tort rule, the Court must carefully analyze
each particular fact pattern so as "to avoid permitting the
narrow exception to swallow the general rule." Dudas v.
Glenwood Golf Club, Inc., 261 Va. 133, 139, 540 S.E.2d 129,
132-33 (2001). Additionally, " 'in determining whether a duty
exists, the likelihood of injury, the magnitude of the burden
of guarding against it, and the consequences of placing that
burden on the defendant must be taken into account.
Imposition of a duty does not depend upon foreseeability
alone.' " Gulf Reston, Inc. v. Rogers, 215 Va. 155, 159, 207
S.E.2d 841, 845 (1974) (quoting Trice v. Chicago Housing
Auth., 302 N.E.2d 207, 209 (Ill. App. Ct. 1973)); accord
Wright v. Webb, 234 Va. 527, 531, 362 S.E.2d 919, 921 (1987).
49
Aside from the traditional type of special relationships
that the Court has recognized, see Taboada, 271 Va. at 326,
626 S.E.2d at 434 (innkeeper/guest); Thompson, 261 Va. at 129,
540 S.E.2d at 127 (business invitor/invitee); A.H., 255 Va. at
220, 495 S.E.2d at 485 (employer/employee); Hines v. Garrett,
131 Va. 125, 137, 108 S.E. 690, 693-94 (1921) (common
carrier/passenger), the Court has, in only two instances,
found that a special relationship existed between a defendant
and a plaintiff that gave rise to a duty to protect based on
the particular factual scenario presented. 6 In the first case,
Burdette v. Marks, 244 Va. 309, 311, 421 S.E.2d 419, 420
(1992), a deputy sheriff failed to render assistance to and/or
protect a citizen who was being assaulted by a third person
even when the citizen asked for help. The deputy sheriff knew
the assailant and the victim and witnessed part of a first
attack and all of a second attack. Id.
The issue before this Court was twofold: (1) whether a
special relationship existed between the deputy sheriff and
the victim that "gave rise to a special duty" on the part of
the deputy sheriff to protect the victim; and (2) whether the
6
The Court, however, also held that a special
relationship may arise between a defendant and a third party
by the defendant's taking charge of the third party, which
therefore creates a duty to control the third party's conduct.
See, e.g., Dudley v. Offender Aid & Restoration of Richmond,
Inc., 241 Va. 270, 279-80, 401 S.E.2d 878, 883 (1991).
50
deputy sheriff "reasonably could have foreseen that he would
be expected to take affirmative action to protect" the citizen
from harm. Id. at 312, 421 S.E.2d at 421. Because the deputy
sheriff was on duty at the time, the Court concluded it could
be reasonably inferred that he was armed and possessed the
capabilities to subdue the assailant. Based on the particular
facts alleged, the Court held that "a special relation existed
between [the deputy sheriff and the citizen] which imposed a
duty upon [the deputy sheriff] to render assistance to [the
citizen]." Id. The Court further held that the case "falls
within one of the exceptions to the general rule [and] that,
under the facts alleged, [the deputy sheriff] owed a legal
duty to protect [the citizen] from [the assailant's] attack."
Id. at 313, 421 S.E.2d at 421.
In the second case, the plaintiff, who was a patient at a
psychiatric facility, alleged that another patient entered her
room and sexually assaulted her. Delk, 259 Va. at 130, 523
S.E.2d at 829-30. The plaintiff further alleged that the
defendants knew she was a danger to herself and others, was in
constant need of 24-hour supervision, had a history of
psychiatric problems associated with prior sexual assaults,
and was deemed a high risk to herself and others. Id. at 130,
523 S.E.2d at 829. Based on those allegations, the Court held
the plaintiff pled sufficient facts to establish a special
51
relationship between herself and the psychiatric facility that
would give rise to a duty on the part of the defendants to
protect the plaintiff from third persons. 7 See id. at 134, 523
S.E.2d at 831.
In contrast, the Court held in Holles v. Sunrise Terrace,
Inc., 257 Va. 131, 137, 509 S.E.2d 494, 498 (1999), that a
special relationship did not exist between a resident on an
"independent living" floor of an adult care residence center
and the defendant company that provided food and management
services, including security, for the center. The plaintiff
was robbed and raped by an intruder who gained entry into the
building by waiting until a side door was opened from within
and then walking through the open doorway past the person who
had opened the door. Id. at 134, 509 S.E.2d at 496. The
Court concluded the defendant did not have a special
relationship with the plaintiff "because there was no right of
protection inherent in their relationship separate and apart
from any duties imposed" by the defendant's contract with the
7
The Court also concluded that the plaintiff pled
sufficient facts to create a jury issue as to whether the
assault was reasonably foreseeable and to show that the
defendants had taken charge of the assailant because he was in
the acute care wing of the psychiatric facility but failed to
control him. Delk, 259 Va. at 135, 523 S.E.2d at 832.
52
local county to manage the center. 8 Id. at 137, 509 S.E.2d at
498.
In Burdette and Delk, as opposed to Holles, a duty of
protection from the criminal acts of third persons was
inherent in the particular relationship between the plaintiff
and the defendant. In Burdette, an on-duty deputy sheriff
witnessed an attack upon a citizen by a third person. 244 Va.
at 312, 421 S.E.2d at 421. Likewise in Delk, the plaintiff
was a patient at a psychiatric facility, was a danger to
herself and others, had a history of psychiatric problems
related to sexual assaults upon her, and needed constant 24-
hour supervision. See 259 Va. at 130, 523 S.E.2d at 829. In
both instances, the defendants were necessarily equipped to
protect against the criminal acts of third persons. Thus, the
magnitude of the burden of providing the protection and the
consequences of placing that burden on the defendant was not
8
The Court has also held in several cases that there was
not a special relationship between a landlord and a tenant as
to give rise to a duty on the part of the landlord to protect
a tenant from the criminal acts of third persons. See
Yuzefovsky, 261 Va. at 108, 540 S.E.2d at 140; Klingbeil Mgmt.
Group Co. v. Vito, 233 Va. 445, 447, 357 S.E.2d 200, 201
(1987); Gulf Reston, 215 Va. at 157, 207 S.E.2d at 844. In
denying the existence of a special relationship, we noted that
a landlord is not an insurer of a tenant's safety, Yuzefovsky,
261 Va. at 108, 540 S.E.2d at 140; Dudas, 261 Va. at 141, 540
S.E.2d at 133-34; Gulf Reston, 215 Va. at 159-60, 207 S.E.2d
at 845, and does not have a "duty to act as a policeman,"
Klingbeil, 233 Va. at 447, 357 S.E.2d at 201.
53
unfair or unreasonable given the particular facts presented in
each case.
Based on our prior cases and the factual scenario
presented here, I concur with the majority's holding that a
special relationship did not exist between the McDonoughs and
Jaimee. Jaimee was a social guest in the McDonoughs' home. A
duty to protect Jaimee from the wrongful acts of third persons
is not inherent in that relationship as it was in Burdette and
Delk. The magnitude of the burden to provide such protection
and the consequences of placing that burden on the McDonoughs
are too great.
Parents routinely invite their children's friends into
their homes for social visits. When doing so, they do not
become insurers of the friends' safety, especially against the
wrongful acts of third persons. To hold otherwise would
indeed stretch the exception of the special relationship
beyond the limits of the rule itself. I therefore conclude
the circuit court did not err in finding that a special
relationship did not exist between the McDonoughs and Jaimee. 9
9
Kellermann relies on the decisions in Doe v. Bruton
Parish Church, Law No. 7977 (City of Williamsburg and James
City County, July 10, 1997) and Schieszler v. Ferrum Coll.,
236 F. Supp. 2d 602 (W.D. Va. 2002), in support of his
assertion that a special relationship existed between the
McDonoughs and Jaimee. Those cases are not analogous to the
present case and do not persuade me to a contrary conclusion.
54
For these reasons, I respectfully dissent from that
portion of the majority's opinion holding that Kellermann pled
a common law duty on the part of the McDonoughs to supervise
and care for Jaimee during her visit. I respectfully concur
with the other portions of the majority's opinion. Thus, I
would reverse the circuit court's judgment sustaining the
demurrer with regard to the cause of action against Paula
McDonough on the theory of assumption of duty and remand for
further proceedings. I would otherwise affirm the circuit
court's judgment.
55