Monday, May 15, 2017


Virginia Supreme Court Justice Powell’s handling of the doctrine of foreseeability is proof that her conservative ideology dictated the decision, not logic and law. Powell and the rest of the state Supreme Court were apparently unwilling to consider other courts’ definitions of “foreseeability” and ignored the definition of “foreseeability” as spelled out in Turpin v. Granieri 985 P. 2d 669 (Id. 1999) in which the court wrote:

“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.

Virginia Tech official Ralph Byers used the words “killer on the loose.” More violence, then, was foreseeable. The exact time and place of that violence may not have been predictable, but it most definitely was foreseeable and therefore there was a duty to warn. (To be continued)

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