Thursday, February 9, 2017



The bottom line is that Odighizuwa’s shooting rampage at the Appalachian School of Law was reasonably foreseeable. Indeed, Virginia law and the Restatement (Second of Torts), places the burden upon the law school to protect its students and employees from Odighizuwa deminimis.

If Peter Odighizuwa had no business on school grounds on 16 January 2002, then he was a trespasser and the school should have taken steps to remove him from the premises. If he were a trespasser, then school officials should have called law enforcement officers and had him removed. Indeed, the law school’s own manual makes it clear that it had—and has responsibility—to make the facility a safe and secure environment.

Despite the school’s own high-sounding words, it did not have an emergency plan in place. A plan as simple as: “In the event of an emergency of any type,pull the fire alarm.” Had someone, anyone, on the second floor pulled the fire alarm after Dean Sutin and Professor Blackwell were shot, the building would have been evacuated. The student lounge would have been emptied and there is an excellent chance Angela Dales would be alive today. There is an excellent chance the three other students would have been spared serious injury and psychological damage.

The defendants consistently argue that they could not have reasonably foreseen or predicted Odighizuwa’s actions. But time after time both Odighizuwa’s actions and the school’s reaction clearly demonstrate that the shooting spree was foreseeable.

In a New York case, Rotz v. City of New York, 143 A.D. 2d 301, 532 N.Y.S. 2d 245 (1988), theNew York Supreme Court criticized the lower court that focused solely upon the foreseeability of the exact manner in which a disturbance was precipitated at a concert that resulted in injuries. The New York court criticized the lower court for concluding as a matter of law that it was an unforeseeable intervening event that relieved the defendant of liability. The New York Supreme Court ruled to the contrary, that the fact that the defendant could not anticipate the precise manner of the accident or 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 Supreme Court said:

“Here of course the general risk reasonably to be anticipated from dynamics of this large closely packed standing assemblage, was the outbreak of disorder or commotion necessarily precipitated or initiated by the acts of some third person which result in injury to some of those such as plaintiffs who were in attendance at the concert.”

The whole question of “foreseeability” is hard to pin down. Can anyone ever foresee the exact moment or cause that will trigger violence on the part of an individual? Of course not. When dealing with someone whom a doctor described as a “time bomb waiting to go off,” how can anyone predict the time and place when that “time bomb” will go off; when the violence will take place? That is exactly the point, in dealing with an unstable person, 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 preventative measures can be taken. The law school’s own actions indicate the truth of this point.

In the case of Turpin v. Granieri 985 P. 2d 669 (Id. 1999), the court addressed the concept of foreseeing violence:

Foreseeability is a flexible concept that 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 foresee ability is required. Conversely, where higher degree of foresee- ability may be 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 a 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 Virginia Supreme Court time and time again, refuses to recognize the responsibility of a business proprietor to protect “its invitees from unreasonable risk of physical harm.” The Supreme Court specifically rejected 314A of the Restatement (Second) of Torts. “Acts of assaultive criminal behavior cannot reasonably be foreseen.” 

Wright v. Webb 234 Va. At 531, 362 S.E.2d at 921 (1987). The Virginia Supreme Court reasons:

“In ordinary circumstances, it would be difficult to anticipate when, where, and how a criminal might attack a business invitee. Experience demonstrates that the most effective deterrent to criminal acts of violence is the posting of a security force in the area of potential assaults. In most cases, that cost, would be prohibitive. Where inviter and invitee are both innocent victims of assaultive criminals, it is unfair to place the burden on the inviter. Wright 234 Va. At 531.

The accumulative effect of Peter Odighizuwa’s violent behavior clearly demonstrates that Peter’s shooting rampage could have been foreseen. Furthermore, if the cost of security is so “prohibitive” why do nearly all other institutions of higher learning in Virginia employ security guards? Why does nearly every Virginia college and university have emergency contingency plans in place? The Virginia Supreme Court’s reasoning simply does not stand up to close examination—at least when it comes to the shootings. (To be continued)

No comments: