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A.H. v. ROCKINGHAM PUBLISHING COMPANY, INC., et al. (59919)


A.H. v. ROCKINGHAM
PUBLISHING COMPANY, INC., et al.


January 9, 1998
Record No. 961984

A.H.

v.

ROCKINGHAM PUBLISHING COMPANY, INC., ET AL.

OPINION BY SENIOR JUSTICE HENRY H. WHITING
FROM THE CIRCUIT COURT OF GREENE COUNTY

Lloyd C. Sullenberger, Judge
Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Whiting, Senior Justice


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
third party while delivering newspapers in early morning hours.[1] 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
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
(collectively, Rockingham).[3] 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.

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 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
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 assailants modus operandi, all prior
attacks occurred in the pre-dawn hours while the three victims
were delivering Rockinghams
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 courts judgment sustaining the
motions to strike the evidence and remand the case for a new
trial.

 

 

 

FOOTNOTES:

[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.

[3] Although there may be
differences in the potential liability of Rockingham and
Anderson, we need not consider them in this appeal.

[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.

[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).

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