In the wake of the worst campus murders in American history, the Virginia Supreme Court ruled recently that Virginia Tech is not liable to the families of slain students.1
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Around 7 a.m. on April 16, 2007, Virginia Tech senior Seung-Hui Cho entered a university dorm room and killed two people—one woman shot in the back in her own bed; the other, a male residence assistant, shot in the chest after entering the room to investigate.2 Cho fled the scene without being noticed.3 Campus police responded to the shootings at 7:30 a.m., but the “[p]olice believed that this was an isolated incident that posed no danger to others and that the shooter had fled the area. They did not believe that a campus lockdown was necessary.”4 The police believed the shooting was a domestic violence incident and quickly focused their investigation on the dead woman’s boyfriend.5 Once the boyfriend was found, though, police soon realized that he was not involved.6
Virginia Tech President Charles Steger was notified of the dorm shootings at approximately 8 a.m.7 He convened a group of other administrators and notified the Governor of Virginia.8 In an e-mail to the Governor, university administrators admitted that the “gunman was on the loose” but stated that they did not want to notify the campus community until the deceased’s next-of-kin were notified.9 The administration finally sent a mass notification of the shootings via “blast e-mail” at 9:26 a.m.10 The brief message said that there had been a shooting earlier that morning, but did not state the gunman was still at large.11 Staff and students were reminded to be “alert for anything suspicious.”12
Cho remained on the University’s campus after the dorm shootings.13 He returned to his residence, destroyed his computer, mailed a package, and armed himself with knives, chains, two handguns, and more than 400 rounds of ammunition.14 He set out toward Norris Hall, a large academic building full of students and staff in morning classes.15 Once inside the building, he
chained the doors shut behind him.16
At 9:45 a.m., more than two-and one-half hours after the dorm shootings, Cho opened fire in Norris Hall.17 He moved room-by-room, methodically, silently, dispassionately shooting unarmed students and staff, most from inches away with bullets to the face.18 After just ten minutes, 30 people were dead and another 17 injured.19 Campus police did not arrive in time to save any lives.20 The massacre ended only when Cho turned the gun on himself.21
At 9:50 a.m., minutes into the Norris Hall shooting, the administration sent another blast e-mail stating that a gunman was loose on campus and advised all persons to stay inside until further notice.22 It is unclear whether President Steger and the administration knew about the Norris Hall shootings at this point or merely sent this e-mail as an update to the earlier message.23 In any event, by the time most persons on campus read that e-mail, Cho and 32 others were already dead.24
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In the months after the shootings, Virginia Tech reached financial settlements with most of the victims’ families.25 However, families
of two of the victims, Erin Peterson and Julia Pryde, filed wrongful death suits against the Commonwealth of Virginia and its employees at Virginia Tech.26 Both women were killed in the Norris Hall rampage. The families claimed that their daughters’ deaths could have been avoided had the administration notified the campus of the dorm room shootings, admitted the gunman was still at-large, and ordered a lockdown before the start of morning classes.27 In legal terms, the families alleged:
that a special relationship existed between the Commonwealth’s employees at Virginia Tech and Peterson and Pryde that gave rise to the Commonwealth’s duty to warn Peterson and Pryde of third party criminal acts and that the Commonwealth’s failure to warn them was the proximate cause of their deaths.28
The Commonwealth countered that “there was no foreseeable harm to the students and that the evidence failed to establish that any alleged breach of a duty of care was the proximate cause of the deaths.”29
A Virginia jury found the Commonwealth liable and awarded $4 million to each family, though that amount was later reduced to $100,000 per family.30 The Commonwealth appealed, asserting that well-settled law held that no “special relationship” existed between the Commonwealth and the victims to the extent that the Commonwealth could be liable for the criminal acts of third parties.31
The Virginia Supreme Court reversed the trial court and rendered final judgment, leaving the Peterson and Pryde families with nothing.32
“As a general rule,” the court explained, “a person does not have a duty to warn or protect another from the criminal acts of a third person.”33 Exceptions to this rule exist only when the parties have a “special relationship” of trust that imposes a heightened duty between the parties.34 Examples of such special relationships include common carrier/passenger, innkeeper/guest, employer/employee, and landlord/tenant.35 In certain instances, a special relationship may give rise to a duty to warn of third-party criminal acts, but these instances are rare.36 Virginia courts have imposed this duty only in egregious circumstances, such as when an on-duty police officer fails to intervene and stop a foreseeable and imminent assault.37
Here, the court assumed that a special relationship existed between Virginia Tech and its students, but found that “there simply are not sufficient facts from which this Court could conclude that the duty to protect students against third party criminal acts arose as a matter of law.”38 The University knew that a
shooting had occurred in a dorm room, but based on information provided by police the administration “believed that the shooter had fled the area and posed no danger to others. . . . [I]t cannot be said that it was known or reasonably foreseeable that students in Norris Hall would fall victim to criminal harm.”39
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The Virginia Supreme Court allowed Virginia Tech to get away with the ostrich defense. The police investigating the dorm shootings incorrectly assumed the incident was domestic and isolated, despite not knowing the identity or whereabouts of the shooter and lacking a discernable relationship between the victims. The police passed along those erroneous conclusions to university administrators, who accepted them at face value and took no independent steps to investigate the incident.40 In court, the University successfully claimed that based on the (incorrect and unverified) information it received from the police, it could not have foreseen Cho’s murderous rampage. The administration allowed the events to unfold without taking any active steps to protect its students and staff, and the Court allowed them to do so with immunity. This ruling may incentivize administrators to avoid gathering information during ongoing incidents lest they be held responsible for not acting on that information.
One wonders what facts would have caused the Court to impose liability on Virginia Tech. Would Mr. Cho have to walk into the administration building, guns drawn, and tell President Steger of his intentions? Or kill more than two people in the dorm room first?
Had the Court ruled in favor of the families, the holding could have imposed a very reasonable, simple, bright-line rule: If there is a shooting on your campus, alert the community and lock down the area until the gunman (or gunmen) are apprehended. If Virginia Tech’s administration had done that, Norris Hall would have been empty at 9:45 a.m. when Seung-Hui Cho walked in looking for defenseless victims.
Though rendered in a state court, this case has far-reaching implications due to its reasoning. Every state has some close variant of the “duty to warn” jurisprudence analyzed by the Virginia Supreme Court.41 Universities and property owners will surely cite this case in the future in the inevitable event of another mass murder, and more families like the Petersons and the Prydes might be left with nothing.
1 Commonwealth of Va. v. Peterson, 749 S.E.2d 307 (Va. 2013).
2 Id. at 308.
3 Id. at 309.
6 Id. at 309.
13 TriData Division System Planning Corporation, Mass Shootings at Virginia Tech: Addendum to the Report of the Review Panel 26–30 (Nov. 2009), available at http://scholar.lib.vt.edu/prevail/docs/April16ReportRev20091204.pdf [http://perma.cc/G5Z4-ZL6S] (archived Mar. 23, 2014).
25 Jenna Johnson, Report: Virginia Tech Massacre Cost $48.2 Million, Washington Post, May 13, 2012, available at http://www.washingtonpost.com/blogs/campus-overload/post/report-virginia-tech-massacre-cost-482-million/2012/04/13/gIQAdDmxET_blog.html [http://perma.cc/TB7T-XL7G] (archived Mar. 23, 2014).
26 Commonwealth of Va. v. Peterson, 749 S.E.2d 307, 307 (Va. 2013).
27 Id. at 310.
31 Id. The Commonwealth also appealed the language of the jury instructions, but the Supreme Court did not address this issue after disposing of the case on the merits of the “special relationship” issue. Id.
32 Id. at 313.
33 Id. at 311.
36 Id. at 312.
37 Id. (referencing Burdette v. Marks, 421 S.E.2d 419 (Va. 1992)).
38 Id. at 311.
39 Id. at 313.
40 See Tridata Report, supra note 13.
41 In Louisiana, see, e.g., Pitre v. La. Tech Univ., 673 So. 2d 585 (La. 1996).