Monday, September 8, 2014


            The Virginia Supreme Court puts the care and feeding of businesses and interest groups far ahead of individual rights in almost all of its decisions—even those where people have been sexually assaulted or killed.  (See the decisions they made involving Rockingham Publications and the Virginia Tech rampage.)

            The Court relies on a very narrow interpretation of the doctrine of foreseeability—specifically, does a business or institution have a duty to warn. In laymen’s terms, the Virginia Court consistently rules against individuals saying, in effect, that no one can be responsible for someone else’s actions except in rare, extreme cases.

            But not all state supreme courts share the Virginia court’s myopic view.

            Here is a definition of foreseeability used by most other states’ Supreme Courts:

            “Foreseeability is a flexible concept which varies with the circumstances of each case. Where the degree of result or harm is great, but preventing it not difficult, a relative low degree of foreseeability is required... Thus foreseeability is not to be measured by just what is more probable than not, but also includes whatever result is likely enough in the setting of modern life that a reasonable prudent person would take such into account in guiding reasonable conduct... We only engage in balancing of the harm in those rare situations when we are called upon to extend a duty beyond the scope previously imposed or when a duty has not been previously recognized.”

The New York Supreme Court has ruled that the fact that a defendant could not anticipate the precise manner of an accident or incident, or the exact extent of injuries does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable. The New York court hit the nail on the head. In dealing with an unstable person such as Cho, or any murderer, the exact nature of the violent behavior or when or how it will occur cannot be predicted. But that he or she will be violent is predictable and preventive measures, including warnings and lockdowns, can be taken.

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