Opinion
CL-2010-11571
12-14-2011
Marilyn Orange, in her Capacity as Administrator of the Estate of Genevieve Orange, deceased v. Berkshire Property Advisors, LLC, et al.
William F. Krebs, Esq. Bean, Kinney & Korman, P.C. Counsel for Plaintiff Marilyn Orange, in her Capacity as Administrator of the Estate of Genevieve Orange, deceased John B. Mumford, Esq. Hancock. Daniel, Johnson & Nagle, P.C. Counsel for Defendant Liberty Screening Services, Ltd.
DENNIS J. SMITH, CHIEF JUDGE
MARCUS D. WILLIAMS
JANE MARUM ROUSH
LESLIE M. ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
HANDY I, BELLOWS
CHARLES J. MAXFIELD
BRUCE WHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L BRODIE
LORRAINE NORDLUND
BRETT A. KABSABIAN
MICHAEL F. DEVINE
JUDGES
COUNTY OF FAIRFAX
CITY OF FAIRFAX
BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A. FORTKORT
RICHARD J. JAMBORSKY
JACK B. STEVENS
J. HOWE BROWN
F. BRUCE BACH
M. LANGHORNE KEITH
ARTHURS. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE. JR.
MICHAEL P. McWEENY
GAYLORD L. FINCH, JR.
STANLEY P. KLEIN
RETIRED JUDGES
LETTER OPINION
December 14, 2011
Dear Counsel:
On November 4, 2011, this court heard oral argument on the Demurrer of Defendant Liberty Screening Services ("Liberty") to Count IV of Plaintiff Marilyn Orange's ("Plaintiff'') Second Amended Complaint. At the conclusion of the hearing, the court informed the parties that it would take the matter under advisement. After reviewing the parties' briefs and in light of the oral arguments made, the Court is now prepared to rule.
It should be noted that a related issue was before the courtpreviously on Liberty's Demurrer to Plaintiff's First Amended Complaint. On August 10, 2011, this court issued a letter opinion sustaining Liberty's Demurrer to a count alleging negligent hiring. See Orange v. Berkshire Property Advisors, LLC, 2011 Va. Cir. LEXIS 117. The more difficult question presented was whether Liberty's Demurrer should be sustained with or without prejudice, which turned on whether the plaintiff might properly be able to plead a negligence claim based on the assertion that an independent duty sounding in tort exists where a party's negligent performance under a contract causes physical harm or death to a third party. The court found, in sum, that sufficient precedent existed to at least permit the plaintiff to plead an amended claim but noted that the court expressed no position as to whether the amended claim would survive a subsequent demurrer. Plaintiff filed her Second Amended Complaint on August 31, 2011, and Liberty subsequently demurred. Following another round of briefing and oral argument, the court now concludes that Liberty's Demurrer to Count IV of the Second Amended Complaint must be sustained with prejudice.
I. Background
This case arises out of the September 2008 rape and murder of Genevieve Orange ("Ms. Orange"). Plaintiff brings the instant wrongful death action as the administratrix of her daughter's estate. On or about September 25, 2008, Ms. Orange was brutally murdered in her rental unit at the Prestwick Apartments, allegedly owned by Defendant BVF-II Prestwick, LLC, and managed and/or operated by Berkshire Property Advisors, LLC (collectively, the "Berkshire Defendants"). (Complaint ¶¶3-5.) On February 22, 2011, Defendant Mark Lawlor ("Lawlor") was found guilty of the rape and capital murder of Ms. Orange and was later sentenced to death. At the time of the incident, Lawlor was an employee of the Berkshire Defendants who "performed services relating to maintenance and upkeep of the building and individual units comprising the building in which the decedent resided" which gave him "access to the tenants' apartments at all hours." Id. at ¶ 7.
Prior to hiring Lawlor, the Berkshire Defendants engaged Liberty to perform "a pre-employment background check." Id. at ¶ 36. The Second Amended Complaint alleges that Liberty "negligently failed to properly check the background of Defendant Lawlor, and negligently reported that Defendant Lawlor had no criminal history or drug history," and "both [facts] were incorrect." Id. at ¶38. Plaintiff submits that Liberty "had a duty to the tenants and their invitees to
identify potential employees with a history and/or propensities towards violence," and Liberty's breach of that duty resulted in Ms. Orange's death.1 Id. at ¶¶ 39-40.
Liberty demurs to Count IV—Wrongful Death by Negligence. Liberty argues that Count IV fails as a matter of law because it did not owe a duty of care to Ms. Orange under Virginia law. Liberty cites several cases that support the proposition that in Virginia, there is no duty to warn against or protect another person from the criminal acts of a third person absent a special relationship. Liberty maintains that the special relationship standard is the only source of duty that the Virginia Supreme Court has relied on in such cases, and to create a new "assumption of duty" exception would be inconsistent with Virginia law.
By contrast, Plaintiff contends that even in the absence of a special relationship, the Supreme Court has held that a defendant may be found liable for the wrongful death of a person caused by the criminal acts of a third-party where the defendant voluntarily undertook a common-law duty and failed to exercise reasonable care. See Kellermann v. McDonough, 278 Va. 478 (2009). Plaintiff argues that Liberty voluntarily assumed the duty to identify potentially violent employees and then failed to use reasonable care in the performance of that duty, resulting in the tragic death of Ms. Orange,
II. Analysis
A. Standard of Review
"[A] demurrer tests only the sufficiency of factual allegations made in a pleading to determine whether the pleading states a cause of action." Barber v. VistaRMS, Inc., 272 Va. 319, 327 (2006) (citing Fun v. Virginia Military Institute, 245 Va. 249, 252 (1993)). "[A] demurrer admits the truth of all material facts properly pleaded. Under this principle, 'the facts admitted are those expressly alleged, those which fairly can be viewed as impliedly alleged, and those which may be fairly and justly inferred from the facts alleged.'" Lentz v. Morris, 236 Va. 78, 80 (1988) (quoting Rosillo v. Winters, 235 Va. 268, 270 (1988)).
"[A] plaintiff who seeks to establish actionable negligence must plead the existence of a legal duty, violation of that duty, and proximate causation which results in injury," Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 132 (2000); see also Chesapeake & Potomac Telephone Co. v. Dowdy, 235 Va. 55, 61 (1988). "[I]n certain circumstances the actions of the party breaching the contract can show 'both a breach of the contract terms and a tortious breach of duty'... But the duty tortiously or negligently breached must be a common law duty, not one existing between the parties solely by virtue of the contract." Foreign Mission Bd. v. Wade, 242 Va. 234, 241 (1991).
B. Findings
The issue in this case is whether an independent duty sounding in tort exists where a party's negligent performance under a contract causes physical harm or death to a third party. There is no Virginia case law precisely on point, but there is ample precedent holding that there is no common-law duty to protect a person from the violent acts of a third-party absent a special relationship. See Holies v. Sunrise Terrace, Inc., 257 Va. 131, 136 (1999); see also Yuzefovsky v. St. John's Wood Apartments, 261 Va. 97 (2001).
In Holies, the Supreme Court of Virginia addressed a case in which the defendant contracted with Fairfax County to "ensure the physical security of the residents" amongst other duties. 257 Va. at 133-34. The decedent allowed a third party to enter her apartment and was subsequently raped and murdered. Id. The Supreme Court emphasized that in order for the decedent "to maintain a negligence claim against [the defendant], she must identify a common law duty owed by [the defendant] to her, which arose separate and apart from any duty imposed by [defendant's] contract with Fairfax County." Id. at 136. Moreover, "[b]efore any duty of care can arise to control the conduct of third persons, there must be a special relationship between the defendant and either the plaintiff or the third person." Id. The Supreme Court held that no such duty existed in Holies "because there was no right of protection inherent in their relationship separate and apart from any duties imposed by [defendant's] contract with the County." Id. at 137. Liberty argues that the Supreme Court's decision in Holies is controlling and that the same conclusion should be drawn in the instant case.
In this case, however, Plaintiff has not alleged a special relationship between Ms. Orange and Liberty. Instead, Plaintiff argues that Liberty assumed a duty that it owed to the tenants to "identify potential employees with a history and/or propensities towards violence and whom it knew to be dangerous to others." (Complaint ¶ 39.) Plaintiff grounds its argument in Section 323 of the Restatement (Second) of Torts, which states, in pertinent part:
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.See also Didato v. Strehler, 262 Va. 617, 629 (2001).
A similar argument was presented in Bosworth v. Vornado Realty, L.P., 2010 Va. Cir. LEXIS 206, but Judge Maxfield of this court declined to extend the common law principles embodied in Section 323 of the Restatement in that case. In Bosworth, the defendant-security company was under contract to provide security services at a shopping mall where the decedent was abducted and ultimately killed. Id. at 2. The plaintiff argued that in the absence of a special relationship, the defendant voluntarily assumed a duty to protect the decedent from violent crime by agreeing to provide security services. Id. at 16-17.
Judge Maxfield rejected plaintiff‘s argument and found that the allegations in the complaint did not fit within the narrow set of cases in which the Virginia Supreme Court had relied on the Section 323 rationale, namely "wrongful death, wrongful birth, and one specific type of negligent driving case." Id. at 18. In sustaining the defendant's demurrer, Judge Maxfield wrote the following:
Special relationship jurisprudence addresses at length whether a duty has been assumed voluntarily or by characteristics inherent to the relationship. A new "assumption of duty" exception grounded in Section 323 of the Restatement (Second) of Torts would conflict with and, thereby, confuse this special relationship precedent. Accordingly, this court declines to create a new "assumption of duty" exception to the general rule that there is no duty to protect another person from a third person's criminal acts.Id. at 21. Moreover, Judge Maxfield noted that "in each of the 'assumption of duty' cases, the [Supreme] Court explicitly or implicitly required the defendant to 'personally engage in some affirmative act amounting to a rendering of services to another,"' and the plaintiff in Bosworth failed to allege such an act. Id. at 19.
In the instant case, Plaintiff relies on Kellermann—a case in which the Supreme Court referenced Section 323—to argue that a defendant may be held liable for the wrongful death of another person caused by the criminal acts of a
third-party where the defendant voluntarily assumed a common-law duty. In Kellermann, the plaintiff instructed the defendant-mother that the decedent (plaintiff's 14-year-old daughter) "was not to be in a car with any young, male drivers." Kellermann, 278 Va. at 490. The defendant-mother then expressly agreed to plaintiff's request and stated the following: "don't worry, I promise we'll take good care of her." Id. The defendant-mother then disregarded plaintiffs request and "purposefully instructed or otherwise permitted [the decedent] to go home with [a young, male driver].." Id. at 485.
The Supreme Court held that plaintiff had a cognizable tort claim based on the theory that the defendant-mother had undertaken a duty to supervise and care for the decedent. Id. at 489. The Court also held that the same theory failed as to the defendant-father because he "was not present when [the defendant-mother] assumed the duty to exercise reasonable care to prevent [the decedent] from riding in cars driven by inexperienced drivers." Id. at 490.
The facts of Kellermann are distinguishable from the instant case insofar as the defendant-mother in Kellermann personally agreed with the plaintiff to undertake a duty on behalf of the decedent. By contrast, Liberty never agreed to assume a duty on behalf of Ms. Orange. In fact, there is no evidence that Ms. Orange was even aware of Liberty's existence. Unlike in Kellermann, there is no allegation of an agreement between Plaintiff and Liberty in this case.
Instead, Liberty had a contract with Berkshire, and any duty alleged in the Second Amended Complaint arises solely out of that contract. "To establish a cause of action for negligence, the duty to have been tortiously breached must be a common law duty, not a duty arising between the parties solely by virtue of a contract." Holies, 257 Va. at 136. Therefore, it is this court's opinion that the Second Amended Complaint fails to plead sufficient facts for the court to conclude that Liberty assumed a common-law duty independent of any contractual duty it owed to the Berkshire Defendants.
Accordingly, for the reasons stated above, Defendant Liberty Screening Services' Demurrer is SUSTAINED WITH PREJUDICE. An Order in accordance with this Letter Opinion shall issue.
Sincerely,
________________
Circuit Court Judge
ORDER
FOR THE REASONS stated in the Letter Opinion issued today, Defendant Liberty Screening Services Ltd.'s Demurrer to Count IV" of the Second Amended Complaint is SUSTAINED WITH PREJUDICE.
SO ORDERED, this 14 Day of December, 2011
_________________
RANDY I. BELLOWS
Circuit Court Judge
ENDORSEMENT OF THIS ORDER BY COUNSEL OF RECORD FOR THE PARTIES IS WAIVED IN THE DISCRETION OF THE COURT PURSUANT TO RULE 1:13 OF THE SUPREME COURT OF VIRGINIA
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