Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Whiting, Senior Justice
A.H.
OPINION BY
v. Record No. 961984 SENIOR JUSTICE HENRY H. WHITING
January 9, 1998
ROCKINGHAM PUBLISHING COMPANY, INC., ET AL.
FROM THE CIRCUIT COURT OF GREENE COUNTY
Lloyd C. Sullenberger, Judge
In this appeal, the primary issue is whether a newspaper
publishing company had a duty to warn a 13 or 14-year-old
independent contractor of the danger of a criminal assault by a
1
third party while delivering newspapers in early morning hours.
Because the trial court sustained the company's motion to strike
the evidence, we state the facts in the light most favorable to
the plaintiff. See Tarmac Mid-Atlantic, Inc. v. Smiley Block
Co., 250 Va. 161, 163, 458 S.E.2d 462, 464 (1995).
In May 1988, 13-year-old A.H. 2 and his parents agreed with
Rockingham Publishing Company, Inc., a newspaper publishing
company, that A.H. would deliver its newspapers in the City of
Harrisonburg. Due to A.H.'s age, under Virginia's child labor
law Rockingham could only permit A.H. and its other carriers of
the same age to distribute its "newspapers on regularly
established routes between the hours of four o'clock ante
meridian and seven o'clock post meridian, excluding the time
1
Although there may have been an issue whether the plaintiff
was an employee or an independent contractor, in this opinion, we
will assume, but not decide, that the plaintiff was an independent
contractor as he contends.
2
Because this claim arises out of a sexual assault on a minor,
the plaintiff used a pseudonym to protect his identity.
public schools are actually in session." Code § 40.1-109.
Eighteen months after A.H. started working for Rockingham, while
delivering newspapers on his regular route between six and six-
thirty a.m. on November 7, 1989, A.H. was sexually assaulted by a
then-unidentified young man.
There had been three previous pre-dawn assaults of a sexual
nature upon other young Rockingham carriers while they were
delivering their newspapers. None of the three prior assaults
was shown to have occurred on or near A.H.'s route.
Rockingham knew about all three attacks before the assault
on A.H. The first assault was about five years, the second about
four-and-a-half years, and the third about four months before the
assault upon A.H. All three victims gave similar descriptions of
the young man who assaulted them. The unknown assailant had not
been arrested prior to A.H.'s assault.
After he became an adult, A.H. filed this action against the
company and its circulation manager, K. Gary Anderson
3
(collectively, Rockingham). A.H. alleged that the newspaper
company and Anderson violated a legal duty of care owed him in
failing to advise him or his parents of the previous attacks or
to warn them of the danger of being attacked. Following
presentation of all parties' evidence before a jury, the trial
court sustained Rockingham's motions to strike the evidence. The
plaintiff appeals.
3
Although there may be differences in the potential liability
of Rockingham and Anderson, we need not consider them in this
appeal.
We must first decide whether there was a duty of care upon
Rockingham in this negligence case. See Burns v. Johnson, 250
Va. 41, 44, 458 S.E.2d 448, 450 (1995). Whether such duty exists
is "a pure question of law." Id. at 45, 458 S.E.2d at 451; Acme
Markets, Inc. v. Remschel, 181 Va. 171, 178, 24 S.E.2d 430, 434
(1943) ("[t]he law determines the duty, and the jury, upon the
evidence, determines whether the duty has been performed").
Familiar principles control our determination of whether
Rockingham had a duty of care in this case. Before any duty can
arise with regard to the conduct of third persons, there must be
a special relationship between the defendant and either the
plaintiff or the third person. Burdette v. Marks, 244 Va. 309,
312, 421 S.E.2d 419, 420 (1992). Examples of such a relationship
between a defendant and a plaintiff include common carrier-
passenger, business proprietor-invitee, and innkeeper-guest.
Klingbeil Management Group Co. v. Vito, 233 Va. 445, 448, 357
S.E.2d 200, 201 (1987). And these examples are not exclusive.
Gulf Reston, Inc. v. Rogers, 215 Va. 155, 157, 207 S.E.2d 841,
844 (1974). Another example of a special relationship is that of
employer-employee with regard to the employer's potential duty of
protecting or warning an employee. Restatement (Second) of Torts
§ 302B cmt. e (B) (1965).
Under the circumstances of this case, we conclude that
Rockingham owed the same degree of care to A.H. that it would
have owed if A.H. had been employed by Rockingham. See Peele v.
Bright, 119 Va. 182, 184, 89 S.E. 238, 239 (1916) (instruction
that degree of care owed to independent contractor less than that
owed toward employees erroneous and properly refused). And,
given the fact that Rockingham assigned a fixed route and time
for A.H. to distribute its newspapers, we conclude that the
necessary special relationship existed between Rockingham and
A.H. with regard to the conduct of third persons.
Even though the necessary special relationship is
established with regard to a defendant's potential duty to
protect or warn a plaintiff against the criminal conduct of a
third party, that duty, as in other negligence cases, is not
without limitations. A court must still determine whether the
danger of a plaintiff's injury from such conduct was known to the
defendant or was reasonably foreseeable. "[W]here the duty does
exist [arising from a requisite relationship], the obligation is
not an absolute one to insure the plaintiff's safety[;] . . . .
[t]here is . . . no liability . . . where the defendant neither
knows nor has reason to foresee the danger or otherwise to know
that precautions are called for." W. Page Keeton, et al.,
Prosser and Keeton on the Law of Torts § 56, at 385 (5th ed.
1984); see also Burdette, 244 Va. at 312, 421 S.E.2d at 421
(since citizen being assaulted in police official's presence
asked for aid, "[defendant] knew or should have known that
[plaintiff] was in great danger of serious bodily injury"); Gulf
Reston, 215 Va. at 159, 207 S.E.2d at 845 (insufficient evidence
to show criminal violence upon tenant reasonably foreseeable by
landlord); Trimyer v. Norfolk Tallow Co., 192 Va. 776, 785-86, 66
S.E.2d 441, 446 (1951) (insufficient evidence to show power
company should have anticipated danger from uninsulated electric
lines); Lynchburg Cotton Mills v. Stanley, 102 Va. 590, 594, 46
S.E. 908, 909 (1904) (employer liable for failing to warn boy not
quite 12 years old of known dangers of revolving wheels, belts,
and pulleys in place of employment); Linda A. Sharp, Annotation,
Employer's Liability to Employee or Agent for Injury or Death
Resulting from Assault or Criminal Attack by Third Person, 40
A.L.R.5th 1, 14 (1996) ("that a 'special relationship' may exist
is not dispositive of the duty question because the court must
also find that the 'harm is foreseeable'"). 4
We will apply the foregoing principles in this case.
Despite the special relationship, and even though the plaintiff's
age may have imposed a greater degree of care upon Rockingham
than it would have owed an adult in the plaintiff's
circumstances, Rockingham had no duty to warn or protect him
against harm unless the danger of an assault on the plaintiff was
known or reasonably foreseeable to Rockingham. Since Rockingham
did not know that the plaintiff was in danger of being assaulted
4
We noted in Gulf Reston that a landlord owed certain duties
of care to his tenant, 215 Va. at 157, 207 S.E.2d at 844, but held
that the facts did not establish a sufficient pattern of prior
criminal conduct to impose a duty upon the landlord to protect the
tenant against the criminal acts of third parties. Our statement
that "no special relationship existed between Gulf Reston and
Rogers" was made in the context of that holding. Id. at 159, 207
S.E.2d at 845.
In Burdette, we were dealing with a deputy sheriff's duty to
act in response to a citizen's request for aid when being
assaulted by a third party in the deputy's presence. Our
statement that "[i]n determining whether such a special relation
existed, it is important to consider whether [the deputy sheriff]
reasonably could have foreseen that he would be expected to take
affirmative action to protect [the plaintiff] from harm," was made
in the context of that situation. 244 Va. at 312, 421 S.E.2d at
421.
on that particular paper route, we consider whether the evidence
is sufficient to raise a jury question whether an assault on him
was reasonably foreseeable.
In ordinary circumstances, acts of assaultive criminal
behavior by third persons cannot reasonably be foreseen.
Burdette, 244 Va. at 311-12, 421 S.E.2d at 420; Marshall v.
Winston, 239 Va. 315, 318, 389 S.E.2d 902, 904 (1990); Wright v.
Webb, 234 Va. 527, 531, 362 S.E.2d 919, 921 (1987); Gulf Reston,
215 Va. at 158-59, 207 S.E.2d at 844-45; Connell v. Chesapeake &
Ohio Ry., 93 Va. 44, 57-58, 24 S.E. 467, 469 (1896).
Accordingly, Rockingham's alleged duty to warn the plaintiff of
the dangers of such an assault would not arise unless the then-
known background of the three prior assaults was sufficient to
create a reasonable foreseeability of the danger that similar
criminal acts would be committed upon A.H. See Gulf Reston, 215
Va. at 159, 207 S.E.2d at 845; Keeton, supra, § 56, at 385.
Recognizing his obligation to demonstrate the reasonable
foreseeability of this danger, the plaintiff claims that the
facts established at trial imposed a duty of care upon Rockingham
to warn him of the danger of such an assault. Rockingham
responds that the trial court correctly concluded that no such
duty arose under the circumstances in this case.
In our opinion, the three prior sexual assaults on
Rockingham carriers in various locations in the City of
Harrisonburg in the five years preceding the assault on the
plaintiff were insufficient to raise a jury issue of whether a
sexual attack on the plaintiff was reasonably foreseeable. This
is not a case in which it was shown that the prior assaults were
at or near the location of the plaintiff's assault, or that they
occurred frequently or sufficiently close in time to make it
reasonably foreseeable that the plaintiff would be similarly
assaulted. 5 Hence, we hold that the trial court correctly
concluded that Rockingham had no duty to warn the plaintiff or
his parents of the danger of an attack upon the plaintiff.
Nevertheless, plaintiff claims that his age and relationship
to Rockingham created an additional duty of disclosure to satisfy
a requirement that A.H. and his parents give an "informed
consent" to the alleged risk involved in the performance of
plaintiff's duties. We do not reach the merits of this claim,
however, because the plaintiff has not met his threshold
obligation of introducing evidence sufficient to create a jury
issue on the question of whether the assault on him was
reasonably foreseeable.
Plaintiff also asserts that Rockingham's "method of doing
business created an environment conducive to assault," basing
this conclusion on the three prior assaults on Rockingham's
carriers. Since those assaults were insufficient to indicate a
reasonable foreseeability that A.H. was in danger of future
assaults, we reject this contention.
Next, plaintiff contends that in advising carriers about
5
If the circumstances had been sufficient to suggest that
there was a reasonable foreseeability that the plaintiff would be
assaulted while on his early morning route, that issue would have
been submitted to a jury. See Page v. Arnold, 227 Va. 74, 80, 314
S.E.2d 57, 61 (1984) (court decides whether evidence of
foreseeable danger sufficient to create jury issue).
safety precautions while on their routes and in equipping them
with whistles, Rockingham voluntarily assumed a legal duty to (1)
advise the carriers of the three prior attacks, (2) warn the
carriers of the possibility of similar attacks, and (3) see that
all carriers, including the plaintiff, received whistles and
attended safety lectures. We decline to impose these additional
duties upon Rockingham merely because it took precautions not
required of it.
Duties imposed upon defendants and the violations of those
duties are premised upon the objective concept of what a
reasonably prudent person in the exercise of reasonable care
would have done in similar circumstances. Hall v. Hall, 240 Va.
360, 363, 397 S.E.2d 829, 831 (1990). A defendant ordinarily
cannot create duties to act merely by taking precautions not
required of a reasonably prudent person exercising reasonable
care in the absence of affirmative acts of negligence on his part
in taking the precautions. See Keeton, supra, § 56, at 378.
Here, the plaintiff complains that Rockingham gave
"inadequate" and "deceptive" warnings regarding the risks of
assaults upon its young carriers while on their early-morning
deliveries. Assuming, but not deciding, that Rockingham's safety
literature, video, and safety whistles were inadequate, we
conclude that, whatever Rockingham may have voluntarily done in
providing this material, Rockingham's actions did not give rise
to a duty to give a more complete warning. See St. Louis-San
Francisco Ry. v. Mills, 271 U.S. 344, 347 (1926) (voluntarily
furnishing one guard to protect strike-breaker did not raise duty
to provide additional guards). Moreover, creation of a duty
under these circumstances would discourage other parties from
taking extra precautions to avoid being subjected to a liability
which they otherwise would not have had.
Even if Rockingham's safety materials were deceptive, a
matter we do not decide, we do not think that a duty was created
in this case because neither the plaintiff nor his parents had
seen or read any of the safety literature. Plaintiff also
contends that the newspaper published a "deceptive" article about
a previous attack upon one of Rockingham's carriers. Although
the plaintiff's mother testified that she "probably read" the
article, it was not published as a part of Rockingham's safety
literature. Therefore, its publication did not create a duty in
this case.
In the rest of this opinion, we consider the plaintiff's
contentions regarding the court's exclusion of certain evidence.
At the outset, he notes that the court excluded allegedly
relevant evidence of prior attacks on non-paper carriers by an
assailant matching the description and method of operation of the
person who committed the assaults upon newspaper carriers.
When evidence of prior occurrences is sought to be
introduced to establish foreseeability of an unreasonable risk of
harm to others, a trial court must determine whether there is a
"substantial similarity" between the prior occurrences and the
occurrence in question. See General Motors Corp. v. Lupica, 237
Va. 516, 521, 379 S.E.2d 311, 314 (1989). In making that
determination, a trial court exercises its discretion. See
Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 138, 413
S.E.2d 630, 636 (1992). Absent an abuse of that discretion, we
will not reverse a trial court's decision in admitting or
excluding evidence of prior occurrences. See Roll 'R' Way Rinks,
Inc. v. Smith, 218 Va. 321, 327, 237 S.E.2d 157, 161 (1977).
The plaintiff proffered a chart prepared by a Harrisonburg
police sergeant summarizing the facts in five "non-carrier"
assaults that occurred prior to the assault upon the plaintiff.
According to the plaintiff, those assaults were "substantially
similar" to the attack upon him. In contrast to the early
morning assault upon the plaintiff, however, three of those
assaults occurred in the afternoon or evening. A fourth assault
took place in the victim's bedroom. The fifth assault, which
occurred in the early morning, was upon a 20-year-old female. In
view of these dissimilarities, we cannot say that the trial court
abused its discretion in excluding this evidence.
The court also excluded the proffered testimony of two
Harrisonburg police officers who investigated the assault upon
the plaintiff and the prior assaults. The officers would have
testified that they believed that all the assaults were committed
by the same perpetrator and that they closed their investigation
of all of the assaults upon the 1993 arrest of a young male who
confessed to many of the assaults, including the attack on the
plaintiff.
We think that the court correctly excluded this evidence.
The issue that plaintiff sought to submit to the jury was what a
reasonably prudent person in the exercise of reasonable care
should have concluded from the information reasonably available
to persons in Rockingham's position prior to the assault upon the
plaintiff. That issue was not addressed by evidence of what two
investigators may have concluded from information available to
them either before or after the assault.
Moreover, the testimony of a lay witness's conclusions from
certain facts in evidence is not admissible; the jury must draw
whatever conclusion should be drawn from those facts. See Lopez
v. Dobson, 240 Va. 421, 423, 397 S.E.2d 863, 865 (1990). And
evidence of what happened or what was discovered after the
assault upon the plaintiff was not admissible to show what
Rockingham should have known prior to the assault. See Turner v.
Manning, Maxwell & Moore, Inc., 216 Va. 245, 253, 217 S.E.2d 863,
869-70 (1975) (evidence of post-accident change of conditions
inadmissible to prove negligence).
Finally, the plaintiff contends that the court erred in
excluding the testimony of the mother of one of Rockingham's
previously assaulted carriers regarding that assault. The
plaintiff contends that this testimony was admissible to show
that Rockingham was on notice of that assault. We need not
consider this contention since other evidence shows what is
implicit in the trial court's ruling, viz., that Rockingham was
on notice of the three prior assaults on Rockingham's carriers.
In summary, we conclude that the plaintiff failed to
establish either that the defendant owed a duty of care to the
plaintiff under the facts of this case or that the court erred in
excluding evidence proffered by the plaintiff. Hence, we will
affirm the court's judgment.
Affirmed.
JUSTICE KINSER, with whom JUSTICE LACY joins, concurring in part
and dissenting in part.
I agree with the majority opinion except its conclusion that
the evidence is not sufficient to raise a jury question on
whether an assault on A.H. was reasonably foreseeable. In
reaching this conclusion, the majority emphasizes that the prior
assaults on Rockingham’s carriers did not occur at or near the
location of the assault on A.H. and that those assaults did not
occur frequently or sufficiently close in time. However, other
facts, about which Rockingham had knowledge, show that an assault
on A.H. was reasonably foreseeable. Thus, I believe the evidence
provides a sufficient basis upon which to submit to the jury the
question of whether a sexual assault on A.H. while he was
delivering papers on his route was reasonably foreseeable. See
Page v. Arnold, 227 Va. 74, 80, 314 S.E.2d 57, 61 (1984).
As the majority states, the three prior assaults occurred in
distinct parts of Harrisonburg, and not on any one paper route.
Even though the attacks occurred at different locations, they
shared the common elements of being attacks on carriers while
delivering papers on routes assigned by Rockingham. Thus, the
random locations of the assaults rendered an attack on any given
paper route more, rather than less, foreseeable. In other words,
if the prior assaults had occurred in only one area of the city
or on a particular paper route, then Rockingham would be
justified in arguing that it could not have foreseen that A.H.’s
route would be the site of an assault. Also persuasive is the
fact that the assaults occurred in the same type of location, a
paper route, thereby rendering an attack on A.H.'s route
foreseeable.
Furthermore, the modus operandi of the prior assaults and
the three victims’ descriptions of the assailant are significant
factors in the foreseeability analysis. With regard to the
assailant’s modus operandi, all prior attacks occurred in the
pre-dawn hours while the three victims were delivering
Rockingham’s papers. The victims reported that the assailant
grabbed them from behind and attempted to engage in sexual acts.
The victims also gave strikingly similar descriptions of their
assailant. All the descriptions included the same attributes as
to age, gender, race, and physique. In sum, the time and method
of the attacks, the sexual nature of the assaults, and the
similarity in the victims’ descriptions of the assailant are
facts sufficient to raise a jury question.
Finally, even though the first two assaults occurred four-
and-a-half and five years before the assault on A.H., Rockingham
knew that the assailant in the first two attacks had never been
apprehended. Thus, when the third assault occurred, four months
before the assault on A.H., and the victim provided a description
of the assailant remarkably similar to those given by the first
two victims, it was then reasonably foreseeable that the danger
to Rockingham's carriers still existed.
For these reasons, I would reverse the trial court’s
judgment sustaining the motions to strike the evidence and remand
the case for a new trial.