Opinion
Civil Docket No.: CL17-7986
09-28-2018
RE: Gordey Denisenko v. Sentara Hospitals, a Virginia Corporation t/a Sentara Norfolk General Hospital
Michael L. Goodove, Esquire
Swartz, Taliaferro, Swartz & Goodove, P.C.
220 West Freemason Street
Norfolk, VA 23510 A. William Charters, Esquire
Bonnie P. Lane, Esquire
Goodman, Allen Donnelly
150 Boush St., Suite 900
Norfolk, VA 23510 Dear Counsel:
This matter comes before the Court on a demurrer filed by Defendant, Sentara Hospitals, Inc., t/a Sentara Norfolk General Hospital (hereinafter "Sentara"). The parties have thoroughly briefed their respective positions and presented arguments before the Court ore tenus. After careful consideration of the facts and the law in this matter, the Demurrer is OVERRULED.
FACTUAL BACKGROUND
The Complaint alleges that on October 9, 2015, Plaintiff, Gordey Denisenko, checked into Defendant's emergency room at Sentara Norfolk General Hospital as a registered patient. (Pl.'s Compl. at ¶ 3-5). While Plaintiff was in Defendant's waiting room, Joseph Dauria also checked in and registered as an emergency room patient, was seen by the triage nurse, and returned to sit in the same waiting room as Plaintiff. (Id. at 6). After Joseph Dauria took a seat in the waiting room and without provocation from Plaintiff, Joseph Dauria suddenly attacked Plaintiff, striking him in the head and face. (Id. at 8). The attack happened within a few feet of a uniformed security officer, who immediately intervened.
Plaintiff further asserts that Defendant, prior to the attack on October 9, 2015, had been made aware of the following instances of Joseph Dauria's violent and assaultive behavior:
• On September 29, 2010, Joseph Dauria assaulted and battered a patron on premises of Defendant. (Pl.'s Resp. Def.'s Br. Supp. Dem. at 1).
• On October 24, 2011, Joseph Dauria was a patient of Defendant and threatened to do bodily harm to another patient. (Id.).
• On November 4, 2011, Joseph Dauria became increasingly agitated and aggressive towards Defendant's employees, displayed violent behavior and damaged Defendant's property. (Id. at 2).
• On February 27, 2013, Joseph Dauria entered a common area of Defendant's hospital and verbally abused and threatened other patients and nursing staff. (Id.).
• On March 12, 2014, Joseph Dauria assaulted one of Defendant's employees on a sidewalk adjacent to Sentara Norfolk General Hospital and was arrested. (Id.).
• On February 10, 2015, Joseph Dauria assaulted one of Defendant's patients that was sitting in the waiting room of the emergency room at Sentara Norfolk General Hospital. (Id.).
• On the morning of March 31, 2015 Joseph Dauria was a patient in the emergency room of Sentara Norfolk General Hospital and after he refused to leave upon discharge, was escorted off Defendant's premises by security staff due to the fact that he had a history of violence towards staff and visitors. Security staff escorted Joseph Dauria off the premises through the back door rather than the waiting room because of the threat he posed to others. Later that afternoon, Joseph Dauria returned to Defendant's emergency room and was again escorted out the back door by security staff. After being escorted out, Joseph Dauria then attempted to force his way in through the front door of the hospital and ran into Defendant's employee who was providing security to the emergency room. Joseph Dauria was arrested for trespassing. (Id. at 2-3).
• On October 8, 2015, Joseph Dauria was convicted in Norfolk General District Court on the trespass charge stemming from the incident which occurred on March 31, 2015. Defendant's employee was present in court for the conviction. (Id. at 3).
All but one of these incidents were documented in writing by Sentara's security personnel and reported to many of Sentara's supervisory staff (Id. at 1-3). The Complaint alleges that Sentara knew of Mr. Dauria's violent propensities and had a duty either to control him or to protect Plaintiff from him. (Def.'s Compl. at ¶ 14-25).
Defendants filed a Demurrer on August 9, 2017, arguing that controlling Virginia law establishes that it had no duty to control Joseph Dauria or to protect Plaintiff under these circumstances. (Def.'s Br. Supp. Dem. at 2-11). The Court agrees that Sentara had no duty to control Joseph Dauria but rules that Sentara did have a duty to protect Plaintiff from a foreseeable harm.
STANDARD OF REVIEW
"The purpose of a demurrer is to determine whether a motion for judgment states a cause of action upon which the requested relief may be granted." Mansfield v. Bernabei, 284 Va. 116, 120-21, 727 S.E.2d 69, 72 (2012) (quoting Dunn, McCormack & MacPherson v. Connolly, 281 Va. 553, 557, 708 S.E.2d 867, 869 (2011)). Accordingly, in considering a demurrer, a court does not "evaluate and decide the merits of a claim"; rather, the court only considers "the sufficiency of factual allegations to determine whether the motion for judgment states a cause of action." Fun v. VMI, 245 Va. 249, 252, 427 S.E.2d 181, 183 (1993). "A demurrer does not admit the correctness of the pleading's conclusions of law." Fox v. Custis, 236 Va. 69, 71 (1998). Rather, a demurrer "admits the truth of all material facts that are properly pleaded, facts which are impliedly alleged, and facts which may be fairly and justly inferred." Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 129, 523 S.E.2d 826, 829 (2000) (quoting Cox Cable Hampton Roads, Inc. v. City of Norfolk, 242 Va. 394, 397, 410 S.E.2d 652, 653 (1991)). As a result, "the sole question to be decided by the trial court is whether the facts thus pleaded, implied, and fairly and justly inferred are legally sufficient to state a cause of action against the defendant." Thompson v. Skate Am., Inc., 261 Va. 121, 128 (2001).
In this case, Sentara claims that it had no duty to either control Joseph Dauria or protect Plaintiff. (Def.'s Dem. at ¶ 5-8). The question of whether such a duty exists is a "pure question of law." Burns v. Johnson, 250 Va. 41, 45 (1995); see also Acme Markets, Inc. v. Remschel, 181 Va. 171, 178 (1943) ("The law determines the duty, and the jury, upon the evidence, determines whether the duty has been performed."). Thus, the question is appropriate for determination on demurrer.
ANALYSIS
The Supreme Court of Virginia has consistently adhered to the rule that "Ordinarily, the owner or possessor of land is under no duty to protect invitees from assaults by third parties while the invitee is upon the premises." Wright v. Webb, 234 Va. 527, 530 (1987). Virginia has recognized exceptions to the rule of non-liability for the assaults of a third party where there is a special relationship between a possessor of land and its invitee giving rise to a duty to protect the invitee from such assaults. Id. at 530. As the Court held in Thompson v. Skate Am., Inc., 261 Va. 121 (2001):
Certain 'special relationships' may exist between particular plaintiffs and defendants, 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.Id. at 128; see also, A.H. v. Rockingham Publishing Co., 255 Va. 216, 220 (1998) ("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."); accord Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125 (2000).
The Court therefore considers whether "a special relation exists (1) between the defendant and the third person which imposes a duty upon the defendant to control the third person's conduct, or (2) between the defendant and the plaintiff which gives a right to protection to the plaintiff." Burns v. Gangon, 283 Va. 657, 668-69 (2012) (quoting Burdette v. Marks, 224 Va. 309, 312 (1992)).
I. Plaintiff has not alleged facts sufficient to establish a duty on part of Defendant to control Joseph Dauria .
Plaintiff claims the existence of a hospital-patient relationship between Defendant and Joseph Dauria which created a duty on Defendant's part to control Joseph Dauria's conduct. (Pl.'s Compl. at ¶ 20). The Virginia Supreme Court has held that any duty on the part of a hospital to control a patient arises only when the hospital "tak[es] charge of the patient, meaning that the doctor or hospital must be. vested with a higher degree of control over the patient than exists in an ordinary doctor-patient or hospital-patient relationship before a duty arises concerning the patient's conduct." Nasser v. Parker, 249 Va. 172, 180 (1995).
In this case, Plaintiff has not alleged sufficient facts to prove that Defendant had taken charge of Joseph Dauria. While Plaintiff alleges that Joseph Dauria had been admitted to Defendant's emergency room as a registered patient and had been seen by the triage nurse, Joseph Dauria was still sitting in the waiting room when he attacked Plaintiff. He had not been seen by a doctor. In Nasser, the Court found that neither the doctor nor the hospital had taken charge of the patient even though he had been admitted; in the instant case, Joseph Dauria had not even been admitted. Examples cited by counsel of cases where courts determined that defendants had "taken charge" of someone such that they had a duty to control, include a hospital that put a patient in restraints, Stevens v. Hospital Auth, of Petersburg, 42 Va. Cir. 321, 326 (Richmond 1997), and a sheriff who had incarcerated the subject. Marshall v. City of Richmond, 15 Va. Cir. 264 (Richmond 1989). The facts alleged here do not approach that required showing that Sentara had taken charge of Joseph Dauria on the night in question. Thus, the Court finds that Plaintiff has not alleged facts sufficient to establish a duty on part of Defendant to control Joseph Dauria.
II. Plaintiff has alleged sufficient facts in order to establish a duty on part of Defendant to protect him from the criminal acts of Joseph Dauria.
Plaintiff claims that a business owner-invitee relationship existed between Plaintiff and Defendant which created a duty on the part of Defendant to protect Plaintiff from the third-party criminal acts of Joseph Dauria. (Pl.'s Compl. at ¶ 18). A business owner-invitee relationship is one that has been recognized by the Supreme Court of Virginia as a special relationship that arises as a matter of law which may give rise to a duty to protect against the danger of harm from reasonably foreseeable criminal acts of third parties. See A.H. v. Rockingham Publ'g Co., 255 Va. 216, 220 (1998) ("Before any duty can arise with regard to the conduct of third persons, there must be a special relationship...Examples of such a relationship between a defendant and a plaintiff include...business proprietor-invitee"); Klingbeil Management Group Co. v. Vito, 233 Va. 445, 448, 357 S.E.2d 200, 201 (1987 )("a person owes no duty to control the conduct of a third person in order to prevent physical harm to another unless a "special relationship" exists giving rise to a right of protection. Examples of such a special relationship include business proprietor-invitee"); Thompson v. Skate Am., Inc., 261 Va. 121, 129 (2001) ("We have recognized examples of such necessary special relationships that arise as a matter of law to include...a business owner and its invitees."). Defendant argues that any such duty may not be imposed in this matter because of the unforeseeability of Joseph Dauria's attack on Plaintiff. (Def.'s Br. Supp. Dem. at 7).
Defendant relies upon Virginia Supreme Court precedent requiring a showing that a defendant was aware of an "imminent probability of harm" to the plaintiff before any duty to protect arises. Id. In Wright v. Webb, the Court stated:
We hold that a business invitor, whose method of business does not attract or provide a climate for assaultive crimes, does not have a duty to take measures to protect an invitee against criminal assault unless he knows that criminal assaults against persons are occurring, or are about to occur, on the premises which indicate an imminent probability of harm to an invitee. In our opinion, two prior isolated acts of violence in this case would not lead a reasonable person in charge of a dinner theatre parking lot to conclude that there was an imminent danger of criminal assault, which required the invitor to take action to protect Webb.234 Va. 257, 533 (1987). The Court explained that in such cases "notice of a specific danger just prior to the assault" is required in order to impose a duty. Id.
Applying this standard set forth in Wright, Defendant argues:
The case at bar lacks the temporal element that must exist relative to the defendant's notice...There is no evidence that just prior to the assault that there was an imminent probability of harm to Mr. Denisenko. The uncontroverted evidence in this case is that the attack happened suddenly and without warning.(Def.'s Br. Supp. Dem. at 9). Further, Defendant argues that Plaintiff must show notice of a danger directed specifically to Mr. Denisenko, citing, inter alia, Marshall v. Winston, 239 Va. 315 (1990): "There is no such thing as negligence in the abstract or in general ... Negligence must be in relation to some person." Id. at 319.
The Court cannot reconcile these arguments and the precedent cited, however, with the later holding of Thompson v. Skate America Inc., 261 Va. 121 (2001). The Court in Thompson did not require a showing of the "imminent probability of harm" articulated in Wright, nor an allegation that the assailant posed a specific danger to the particular plaintiff.
In Thompson, the Court held:
The significant factor which distinguishes this case from Wright...is that here it is alleged that a specific individual was known to Skate America to be violent and to have committed assaults on other invitees on its property in the recent past. While in Wright, and other cases, we have declined to "impose liability for negligence based solely upon . . .a background" of prior criminal activity on the defendant's premises...here the circumstances are quite different... Skate Americahad specific knowledge of Bateman's propensity to assault its other invitees, had intervened to inhibit that behavior in the past, and had taken steps to avoid a reoccurrence of that behavior in the future... The "imminent probability" of that harm, as characterized in Wright , is merely a heightened degree of the "foreseeability" of that harm and here we are of opinion that the specific allegations concerning the knowledge Skate America had of Bateman's prior violent conduct satisfied the necessary degree of foreseeability.Thompson v. Skate America, Inc., 261 Va. 121, 130 (2001) (emphasis added). The Court interprets Thompson as modifying the prior "imminent probability of harm" requirement where sufficient facts otherwise show that an assault was foreseeable. Therefore, although the Court agrees with Defendant that the Complaint does not allege facts to indicate that Mr. Dauria's presence in the waiting room presented an "imminent probability of harm," the Court concludes that such standard does not apply in this case.
Further, Thompson has no language suggesting that the plaintiff needed to plead that the assailant in that case posed a specific threat to him rather than a general threat to all of the patrons. The case described that the two young men were waiting for their parents to pick them up when the assailant "without provocation" struck the plaintiff in the head with a roller skate. Nothing in the case suggests that the assailant posed a specific threat to that particular young man or otherwise requires an allegation that the person whom the defendant knew to be violent, was posing a specific threat to a particular person.
In this case, like in Thompson where the skating rink had repeatedly been made aware of the third-party criminal actor, Sentara knew that this specific individual, Joseph Dauria, was violent and had the propensity to attack others in the waiting room. Sentara argues forcefully that under The Emergency Medical Treatment and Labor Act, 42 U.S.C. §1395dd(a)-(c), it cannot exclude anyone from entering the emergency department to seek treatment or otherwise limit an invitation with regards to the emergency department. (Def.'s Reply Br. to Pl.'s Resp. Def.'s Dem. at 3-5). Because they cannot ban individuals from entering the emergency room and must see everybody who presents seeking medical attention, Sentara contends that the facts of this case are too dissimilar from Thompson where the skating rink had banned the assailant from their property. (Id. at 8).
Plaintiff concedes that EMTALA required Sentara to permit Mr. Dauria to present for treatment and does not argue that he should have been banned or turned away. The Court notes that whatever action Sentara should or should not have taken when Mr. Dauria showed up, does not relate to whether Sentara had a duty to Mr. Denisenko but whether Sentara breached that duty. The jury and not the Court must make that determination. It is entirely possible that Sentara fully discharged its duty to protect those in the waiting room from potentially violent folks like Mr. Dauria by employing a policeman to stand in the waiting room and respond immediately to any trouble. That decision is not before the Court on demurrer.
On the question of whether Sentara had a duty to Mr. Denisenko notwithstanding the absence of facts to demonstrate an "imminent probability of harm" or a specific threat to Mr. Denisenko himself, the Court cannot distinguish Thompson and concludes that Sentara did have such a duty.
CONCLUSION
For the reasons stated above, the Court finds that Plaintiff may maintain its claim of breach of duty against Defendant. The Court therefore OVERRULES Defendant's Demurrer.
Sincerely,
/s/
Mary Jane Hall
Circuit Court Judge MJH/MAN/nm