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.
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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.