ODIGHIZUWA'S RAMPAGE FORESEEABLE

ODIGHIZUWA’S RAMPAGE FORESEEABLE

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)

SETTLING THE LAWSUIT AGAINST THE LAW SCHOOL

On the day of the settlement, the Appalachian School of Law issued the following press release:

ASL Court Settlement Announced

Officials of the Appalachian School of Law (ASL) today announced that Hartford Insurance had settled all claims in the lawsuits filed in the aftermath of the tragic shootings at the ASL campus on January 16, 2002. The Honorable Nick Persin, Chairman of the Board of Trustees at ASL, stated, “We note that the full and complete settlement occurred within the limits of the $1,000,000 insurance coverage, that the Appalachian School of Law contributed $27,301.10 to the settlement, and that the defendants expressly deny any and all liability for  those shootings.”

Rebecca Claire Brown, Stacey Emilie Beans, Martha Madeline Short and Sue and Danny Dales (co-administrators of the estate of Angela Denise Dales) earlier this year filed four lawsuits seeking more than $23,000,000 in the Wise County Circuit Court. The suits named as defendants, the Appalachian School of Law, President Lu Ellsworth and Professor Dale Rubin. President Ellsworth commented, “This settlement permits all of the parties to this tragic episode to move ahead without protracted and expensive litigation.”

The Appalachian School of Law welcomed the first students in August, 1997 to the Grundy, Virginia Campus. The law school, which is provisionally approved by the American Bar Association, enrolls almost 360 full-time students this year and has 256 alumni in more than two dozen states.

For more information about the Appalachian School of Law, contact Lu Ellsworth, President, at (276) 935-4349 or see www.asl.edu.

December 30, 200

Trying to put the best face on this public embarrassment, the school decided to accent the fact that the suit was filed for $22 million and settled for $1 million. What the school failed to note was that the settlement amount was for the maximum amount of their liability insurance policy—there was no negotiating on that. The Appalachian School of Law is not rolling in cash. They did not have $1 million lying around and decide to settle a nuisance lawsuit.

It is particularly upsetting to read the school’s comment on the settlement; the Appalachian School of Law’s statement ends with a clear recruiting pitch—an attempt to profit from the tragedy.

The statement issued by the attorneys for the Dales’ was released on 30 December 2004:

Students’ Case Against Appalachian School of Law Settles for One Million Dollars

Abingdon, Virginia, attorney, Emmitt F. Yeary, who represents the plaintiffs, Rebecca Brown, Martha Short, Stacey Beans, and Sue and Danny Dales (co-administrators of the Estate of Angela Denise Dales), in their cases against the Appalachian, Lucius Ellsworth and Dale Rubin, announced that their cases had been settled today for $1,000,000. In announcing this settlement, Yeary said:

These cases were settled today after a hearing before Judge Clifford R. Weckstein, Judge of the Circuit Court of the City or Roanoke, Virginia.

Judge Weckstein had been appointed to hear the cases because of the potential conflicts of local Wise County judges where the case was originally filed. The hearing was held before Judge Weckstein to approve the wrongful death portion of the settlement agreement.

In presenting the case before Judge Weckstein, Yeary had also

stated another factor to be considered was how long cases would have taken to present in the courts of Virginia and also the possibility of the bankruptcy of the law school if a greater judgment was obtained against the Law School.

Although denied by the defendants the plaintiffs contended that the defendants were negligent in failing to properly warn the students of the dangers of Peter Odighizuwa who killed two faculty members and one student, Angela Dales, and wounded the other plaintiffs on January 16, 2002.

Yeary stated the fact the Law School was paying $1,000,000 certainly indicates that the Law School and the defendants took these claims seriously and were concerned and realized their potential liability and were not paying this amount out of the goodness of their hearts.

Yeary stated these young women, Rebecca Brown, Martha Short, and Stacey Beans, and Sue and Danny Dales, the mother and father of Angela Dales, have decided to settle their cases against the Appalachian School of Law and the other defendants in the hopes of bringing some closure to the nightmares and sufferings they have been enduring since the massacres and shootings at the Law School on January 16, 2002.

The horrible events that occurred that day in Grundy, Virginia,

were even more tragic because they could and should have been foreseeable, and preventable, if only simple precautions had been taken and the numerous warnings about the danger of the murderer had been heeded by those in charge of the Law School and had they not ignored those glaring warning signs time and time again.

Although the settlement of these cases today may in some small and pitiful way bring some closure for the victims and their families, the horror of the terrible day will never leave them. These young women and the family of Angela Dales, and especially Angela’s ten year old daughter, Rebecca,  will be forever be scarred because of the senseless murders and shootings of January 16, 2002.

Unfortunately, no amount of money will ever take away their heartbreak, their headaches, and nightmares that they will continue to haunt them and that they will have to endure and bear for the rest of their lives.

Nor will any money paid to them erase the scarlet stains of blood from the hands of all those who contributed to these terrible tragedies. Nor should the payment of any amount of money in any way ease the conscience of those whose actions and omissions contributed to the shootings of these young women. Nor should it in any way help excuse those who contributed to the death of Angela Dales, and who allowed her to lie on the cold floor at the Law School that day and bleed to death for 45 minutes after her murderer was apprehended.

Today, it is our hope and prayer that the bringing of this case and the suffering of all these victims, will not be in vain, but will be yet another wake up call and warning to all the schools and others to whom we entrust the lives of our children with a reasonable expectation that they will take every reasonable precaution to ensure their safety. Those responsible for the safety and security of our children and our loved ones should never be allowed to blindly close their eyes and tolerate behavior that endangers others, especially where such indifference is a result of greed, naiveté, bigotry or political correctness. They must be made aware that in America if they fail to provide appropriate protection and take proper precautions for our safety they will be held accountable to the full extent of the law no matter who they are or what they are or what their social position or status may be.

The plaintiffs were represented by Abingdon, Virginia, attorney,

Emmitt F. Yeary, Las Vegas, Nevada, attorney, E. Brent Bryson, and Maryland Attorney, Richard L. Gershberg.

Worse Lies Ahead

·      Unless the causes behind the events of 16 January 2002 are brought to light and corrected, the sad truth is even worse school shootings may lie ahead. The Virginia Tech rampage is proof of that fact. As for the law school itself and the lessons it learned; their “heightened” security amounted to hiring a night watchman and issuing a proclamation that guns are not allowed on campus. In the wake of the seriousness of the shootings of 16 January 2002, the school’s response has left Angie’s family and me speechless. Correct me if I am wrong, but the shootings took place during the day. A night watchman is hired to protect against theft at night—not to protect lives and safety of the students, staff, and faculty.

·      In response to the lawsuits filed against the Appalachian School of Law, its President Lucius Ellsworth, and Professor Dale Rubin, the defendants’ lawyers filed a demurrer. Quoting from the defendant’s own lawyers:

A demurrer tests only the legal sufficiency of the claims stated in the pleading challenged. While a demurrer does not admit the correctness of a pending’s conclusions of the law, it ‘admits the truth of all material facts that are properly pleaded, facts which are implicitly alleged, and facts which may be fairly and justly inferred’ Thus, the sole question to be decided by the trial court is whether the facts thus pleaded, implied, and fairly and justly inferred are legally sufficient to state a cause of action against the defendant.

·      I was thunder struck! None of the three defendants were denying the truth of the charges made against them! None of them were denying that they knew Peter Odighizuwa had a history of violence, none denied they had heard staff and faculty call out for protection against him, none in effect denied they had a role in this tragedy. Let me repeat what the demurrer says, “it admits the truth of all material facts that are properly pleaded, facts which are implicitly alleged, facts which may be fairly and justly believed.” Do the defendants admit all the facts brought against them are true?

·      What the defendants deny is that these claims reach a level in Virginia law where they can be held accountable in a court of law. The Orwellian reasoning used by the defendants’ attorneys defies description. What is a fact that doesn’t deserve the court’s consideration and certainly does not need to be heard by a jury? Time and time again their words twist and turn in a convoluted distortion of truth, a distortion that is so very, very painful for the victim’s families to read.

·       

·      For example, in one demurrer the argument is made that: “The allegations of Odighizuwa’s verbal confrontations with Law School students, faculty, and staff do not logically indicate an imminent probability of harm to the plaintiffs or that Ellsworth knew Odighizuwa was about to criminally assault anyone at the law school. The allegations about his argument with Rubin, shortly before the shootings do not logically indicate that Odighizuwa was about to pull out a pistol and shoot anyone.”

·       

·      How do the defendant’s attorneys explain the fact that Odighizuwa was banned from certain school offices because staff members feared for their personal safety? How do these attorneys explain female faculty members asking the school to hire security officers because they were afraid of Peter Odighizuwa? How do the defendants’ lawyers explain Professor Rubin’s public statement that he thought Odighizuwa might punch or hit Sutin?

·       

·      I believe almost everyone would describe punching or hitting someone as “violence.” Indeed, the dictionary defines violence as: “exertion of physical force so as to injure or abuse.”

·       

·      The defense argues that there is no allegation that President Ellsworth knew Odighizuwa possessed a gun or any other weapon. “Thus, the allegations do not establish that Ellsworth was conscious that injury probably would result from his (Odighizuwa’s) conduct…” The defense needs to be reminded that injury does not require a gun or any other weapon. President Ellsworth knew enough about Odighizuwa’s violent behavior that he agreed to banning Odighizuwa from portions of the school grounds. Ellsworth did not know whether or not Odighizuwa had a weapon when he took those precautions. (To be continued)

JUSTICE NOT SERVED

The lawsuit against the Appalachian School of Law may be settled, but justice has not been served. The sad truth is that the charges contained in the lawsuit—charges of a toxic mix of incompetence, negligence, and bureaucratic bungling will never be heard in a court of law. The unsettling and unexplainable behavior of school, law enforcement, and elected officials will never be held up to scrutiny. The result is that the conditions and factors that make schools in Virginia unsafe will never reach the public. The mistakes committed by the Appalachian School of Law are doomed to be repeated and other young people may lose their lives on Virginia school grounds. Many of these mistakes were repeated at Virginia Tech. It would be so much easier for us to find peace and move on if we knew the lessons had been heeded and the mistakes corrected.

Questions need to be answered. Police and rescue workers need to explain to our granddaughter why their mother was allowed to bleed to death for 45 minutes after the shooter had been subdued. The hospital was less than five minutes away traveling at a speed of 30 mph. School, county, and police officials need to explain why there was no emergency evacuation plan. 

Justice has not been served and the same mistakes made in Grundy will be repeated elsewhere because they have not been analyzed and exposed. (To be continued)

HOW MUCH IS YOUR CHILD WORTH?

What price would you put on the life of your child or the mother of your granddaughter? Is it $100,000 or $100 million—what sum of money will give you peace? How much money would it take for you to say to yourself—this is the dollar value of my child, this is how much he or she was worth? How would any parent decide what price to put on the life of his or her child?

The answer is—there is no amount of money that can bring any parent to that point. That is exactly how Sue and Danny Dales felt when they left the lawyer’s office in Abingdon having agreed to a final settlement on behalf of their daughter’s estate and their granddaughter. The law asks you to put a price on the life of a member of your family, thinking that once you have settled on a dollar amount you will go away. The legal system wants you to stop asking why; to forget the unanswered questions.

For a set price, the lawsuit on behalf of the estate of Angela Dales and the three wounded students agreed to a settlement on 12 November 2004. The final papers were signed on 30 December 2004. The school, its president, and Professor Rubin were off the hook for 30 pieces of silver. There were no winners. There were only losers. We lost someone we love, the legal system lost because no one will be held accountable, and every parent in Virginia lost because the state’s schools have not learned what it takes to make our children safe.

Had the lawsuit gone forward, the school would have had to defend itself against serious accusations. Greater public awareness of the lack of school safety requirements might have led to an outcry for legislation to make our schools safer and legislation to keep guns out of the hands of mentally disturbed and potentially violent people. Such legislation would be a fitting tribute to those who lost their lives on 16 January 2002; a far better tribute than a plague or a tree. (To be continued)