Friday, June 22, 2012

Judge Uphold Negligence Verdict

Judge upholds negligence verdict in Virginia Tech shootings and reduces award

By Tonia Moxley381-1675
Roanoke Times
ROCKY MOUNT – On Wednesday presiding Judge William Alexander upheld the March jury verdict against the state for Virginia Tech’s handling of the April 16, 2007, shootings, but reduced the awards from $4 million per plaintiff to $100,000 each.

That may not be the end of the five-year-old case, however. Both parties are expected to ask the Virginia Supreme Court to hear their arguments, but for different reasons.

Plaintiffs’ attorney Bob Hall said after the hearing that his clients intend to appeal to the top court to reinstate university President Charles Steger as an individual defendant. Alexander dismissed Steger on a technicality shortly before the case went to trial, leaving the commonwealth as the sole defendant.

In a statement released after the hearing, Virginia Attorney General Ken Cuccinelli wrote that while he’s pleased with the reduction in the awards, "we continue to maintain that the court has misapplied Virginia law in its finding that the commonwealth or its employees could be liable under the facts of this case. Because of that, we are currently reviewing our options."

Under the Virginia Tort Claims Act, negligence claims against the state are capped at the higher of $100,000, or the amount of any liability policy maintained to insure against such negligence. The state has said in hearings and filings that no relevant liability policies are known to exist.

On March 15, after eight days of emotional and sometimes confrontational testimony, a Montgomery County jury awarded the families of the late Erin Peterson and Julia Pryde $4 million each. They found that university officials, including Steger, breached a duty to warn the women of reasonably foreseeable harm from a gunman known by police and officials to be on the loose.

That gunman, troubled Tech student Seung-Hui Cho, shot to death two students in a dormitory room shortly after 7 a.m., then opened fired in Norris Hall classrooms at about 9:50 a.m., killing 30 more and wounding dozens of others. Pryde and Peterson were fatally shot in Norris.

Police who worked the dormitory crime scene, and university officials convened to respond to it testified that they believed the shooting was domestic, and posed no threat to the wider community. No warning was issued to the campus, but an email notification describing a "shooting incident" was sent minutes before Cho entered Norris.

The Attorney General’s office, representing Tech, had asked Alexander in a motion to set aside the jury’s verdict and find in favor of the commonwealth, based in part on a state Supreme Court ruling handed down in April.

In Burns v. Gagnon, the court found that a public high school assistant principal, who was told that a student might be in a fight and did nothing to prevent it had no legal duty to intervene, or to warn of the potential danger. The student was attacked and permanently injured.

"We have a case this court must follow," Assistant Attorney General Mike Mellis told Alexander. "We have the Burns case."

"The Burns case is problematic. There’s no question about it," Alexander said. "But there are enough factual and legal differences" between the two that the state Supreme Court ought to look at the Tech case and clarify the issues.

The judge went on to defend the verdict in the Tech case, saying that it was supported by the facts. Furthermore, Alexander said, the court properly found that Steger and Tech Police Chief Wendell Flinchum did have a duty to warn Pryde and Peterson of foreseeable harm.

"Thank you all very much, and we’ll see what happens," Alexander said.

The judge is expected to enter a final order in the Tech case in the next month or so. Both parties then have 30 days to file notice of any appeals.

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