This is the second
in a series of blogs looking at the Virginia Supreme Court.
The Virginia
Supreme Court’s decision to throw out the jury verdict in the Pryde and
Peterson lawsuit against Virginia Tech is just another in a series of examples
of the Court’s willingness to ride roughshod over individual’s rights and
safety.
In
the Virginia Tech case, the court ignored possible perjury on the part of a key
witness, got a critical fact wrong, ignored facts that favor the plaintiffs,
and appears to have kowtowed to the most powerful economic engine in
southwestern Virginia—Virginia Tech.
Let’s
take a quick look at the judicial system in Virginia. Sadly, individuals do not
fare well against businesses or powerful interest groups.
In Virginia,
the judges are elected by the legislature. At present, the Virginia Supreme
Court is made up of seven justices elected by a majority of both houses of the
General Assembly. To be eligible for election, a candidate must be a resident
of Virginia and must have been a member of the Virginia Bar for at least five
years. If the General Assembly elects these justices, who elects the General Assembly?
Well, large business contributions bankroll most politicians’ campaigns.
Newspaper editorials can make or break a candidate’s chances of being elected
to the General Assembly. The potential for conflict of interest is readily
apparent.
In my
research, I came across a ruling that was particularly disturbing. In May 1988,
a 13-year-old boy and his parents agreed with the Rockingham Publishing Company
that the boy would deliver the company’s newspapers in Harrisonburg, Virginia.
Due to the boy’s age, under the Virginia child labor laws, Rockingham could
permit the boy and other carriers of the same age only to distribute its
“newspapers on regularly established routes between the hours of four o’clock
ante meridian (in the morning) and seven o’clock post meridian (in the
evening), excluding the time public schools are actually in session.” A year
and half after the then 13 year-old boy took over the route; he was sexually
assaulted one morning between six and six-thirty while delivering papers.
There
had been three previous pre-dawn assaults of a sexual nature upon other young
Rockingham carriers while they were delivering their newspapers. While two of
the assaults were more than two years before the one in this legal action, one
occurred only four months prior to the case in question. Furthermore, all three
of the earlier victims gave a similar description of the young man who
assaulted them.
In
legal terms, the issue was whether Rockingham Publishing had a special
relationship with the plaintiff that would have required such a warning, and
whether the publishing company had enough prior evidence of sexual assaults
that it owed a duty to warn A.H. (the paperboy) and his parents. The Virginia
Supreme Court ruled that “Rockingham owed the same degree of care to A.H. that
“it would have owed if A.H. had been employed by Rockingham.” “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.”
Having
said that, the Supreme Court then raised a technicality that puts so many
Virginians in a losing position when coming up against private businesses.
“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 cases of 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.”
Once
you state that there are limitations, all you have to do to protect private
businesses is set the bar so high that it allows you to reject evidence showing
the attack was “reasonably foreseeable.” Armed with this technicality,
the court was then in position to rule as follows: “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 to a jury’s attention the
question of whether an assault on him was reasonably foreseeable.”
The
court, then, decided against the plaintiff’s claim that his age and
relationship to Rockingham created an additional duty of disclosure, “because
the plaintiff has not met his threshold obligation of introducing evidence
sufficient to (have a jury trial)...on the question of whether the assault was
reasonably foreseeable.”
To
the plaintiff’s charge that Rockingham gave “inadequate” and “deceptive”
warnings regarding the risks of assault upon its young carriers while on their
early morning deliveries, the defense argued that this charge did not meet the
threshold to warrant a more complete warning. The court said that even if the
publishing firm’s safety literature, video, and safety whistles were
inadequate, that “did not rise to a duty to give a more complete warning.”
There
is something wrong with the court’s logic. If Rockingham did not feel it had a
responsibility, then why did it spend time, money, and effort to have safety
training for its paperboys in the first place?
Then
the court said that even if Rockingham’s safety materials were deceptive (a
matter they did not decide) the court “did not think that a duty was created in
this case because neither the plaintiff nor his parent had seen or read any of
the safety literature.”
Two Virginia Supreme Court Justices—Justice
Kinser and Justice Lacey—concurred in part with the majority ruling and
dissented in part with the majority. The majority ruled, that because the three
previous attacks on paperboys had occurred in different locations, these
attacks could not be presented as evidence. The dissenting judges eloquently
argued the opposite: The random location of the assaults makes an attack on any
given paper route, more rather than less likely. “In other words, if the prior
assaults had occurred in only one area of the city or a particular route, then
Rockingham would be justified in arguing that it could not have foreseen that A.H.’s
route would have been the site of an assault.” The dissenting judges also
pointed out that the “fact that the assaults occurred in the same type of
location, a paper route...(rendered) an attack on A.H.’s route foreseeable.”
Other
points raised in the dissenting opinion were modus operandi of the prior
assaults. This is a significant factor in whether or not the attack was
foreseeable. “...all prior attacks occurred in the pre-dawn hours while the
three victims were delivering Rockingham’s papers.... The victims also gave
strikingly similar descriptions of their assailant. All the descriptions
included the same attributes as the 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 fact sufficient to
raise a jury question.”
“Finally,”
the dissenting opinion said, “even though the first two assaults occurred
four-and-a-half years before the assault on A.H., Rockingham knew that the
assailant in the first attacks was never 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,” dissenting Judge Kinser wrote, “would reverse the trial
court’s judgment sustaining the motions to strike the evidence and remand the
case for a new trial.”
Editorial
endorsements of papers such as those published by the Rockingham Publishing
Company are keys to the election of the Virginia General Assembly, and the
Assembly members elect the Supreme Court Judges. There is no evidence of
impropriety in the case of A.H. vs. Rockingham Publishing Company, and I am not
trying to accuse anyone of anything. But the Supreme Court of Virginia would
have served the state’s citizens by bending over backward to ensure that a jury
heard the case.
* * *
As
a manager in the government I was trained on my responsibilities—professional
and legal. If one of my subordinates was sexually harassed, I could be held
responsible even if I did not know about it—because I should have known about
it. If the law takes this firm a stand on an off-color joke or remark that can
be interpreted as “harassment,” why is Virginia law so lax on workplace
violence or murder?
In
other words, in the Old Dominion if there is a record of a sexual
assault or threatening behavior (as was the case with Rockingham Publishing and
Virginia Tech respectively), you have “no need to know, no need to act.” You
have the right to look the other way. And, even in cases of sexual assault
against a minor or mass murder, you are not accountable for not warning. But
not when it comes to off color jokes or sexual harassment, you must act.
There is something
I am missing in this logic—or maybe I am just naïve.
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