ANALYSIS OF JULY 17, 2009 SUPREME COURT OPINION[Posted July 17, 2009] In the usual course, the Supreme Court of Virginia hands down published opinions exactly six days per year – the last day of each session week. On rare occasions, the court will announce a published decision on other days; today is such a day, as the court decides an important case involving the duty of care in a situation that’s familiar to all parents.
The phrase, “every parent’s worst nightmare” is probably overused, but it arguably applies to the facts of Kellermann v. McDonough. Fourteen-year-old Jaimee Kellermann got an invitation to spend a night or two with a friend of hers, Becka, who, according to Becka’s parents, was “having a tough time of it.” Her parents agreed to let Jaimee spend one night with Becka’s family. When the parents met to drop Jaimee off, her father stressed that she was not permitted to ride in a car with a young male driver; Becka’s mother assured him, “Don’t worry, I promise we’ll take good care of her.”
The now-custodial parents took the two girls off to a shopping mall and dropped them off, leaving them unsupervised. While there, they met another mutual friend; the three girls then saw a movie with two boys, one of whom was a 17-year-old named Nate. Nate, you will learn, was bad news; he had engaged in street racing and had been stopped by the local police for exceeding the speed limit by more than 20 mph.
When the movie ended, Becka called her mother and asked if the girls could get a ride home from Nate. The mother inexplicably said yes. During the ride home, Nate drove in an exceedingly reckless manner, and wrapped the car around a tree. Jaimee died the next morning of injuries she sustained in the collision.
Every parent’s heart is going to break upon reading the court’s recitation of the facts of this case (since the case was decided on demurrer, the facts are those pleaded by the personal representatives). They include the girls’ begging Nate to slow down from his 85 mph pace; Jaimee’s frantic text message to her father, expressing fear for her life; and Nate’s callous act of opening the car door, while exceeding the limit by more than 25 mph, and inviting the girls to get out if they wanted to leave the car.
The trial court sustained the “custodial” parents’ demurrer, on the grounds that Becka’s parents had no legal duty to exercise reasonable care in supervising Jaimee. Today, the Supreme Court reverses that ruling, specifically holding that in a situation like this, when an adult “agrees to supervise and care for [a] child, the supervising adult must discharge that duty with reasonable care.” The court adds that the supervising parent does not thereby become an insurer of the child’s welfare.
The outcome is not universally favorable for the administrator, however; the court rules that the trial court properly sustained the demurrer filed by Becka’s father to the failure-to-supervise count, since he never undertook a duty to supervise. The pleadings did not establish that he was present when his wife promised to “take good care of” Jaimee. Additionally, the court affirms the trial court’s decision to sustain the demurrer as to a count that asserted that the custodial parents had a duty to control the conduct of third parties. It’s well-established that such a duty can arise only when a special relationship exists, and the court today rules that this situation does not create such a relationship.
The final holding in the case is a predictable one: The court refuses to find, as a matter of law, that Nate’s actions were the sole proximate cause of the death. This is essentially a superseding-cause issue, and the court rules today that a question like that is for the jury.
The court’s decision is not unanimous; there are two separate opinions, each concurring in part and dissenting in part. Justice Koontz, joined by Justice Kinser, complains that Virginia law does not create a common-law duty under these circumstances. Despite the language in the majority opinion (authored by the chief justice) disavowing an insurer relationship, Justice Koontz sees that the court has created just such a scenario. He also argues that this case creates an enormous exception to the general rule of nonliability for the criminal acts of third persons.
Justice Kinser files a dissent of her own, in which she contends that the administrator didn’t plead the existence of a common-law duty to supervise. She perceives that the only causes of action in the complaint arise from (1) an agreement to assume responsibility, and (2) a special relationship. Hence she finds the majority’s ruling on the existence of a common-law duty to be inappropriate: “The common law duty addressed by the majority was not mentioned by anyone” in the trial court. She also quotes the administrator’s reply brief, in which he asserts only the two theories of recovery listed above, with no mention of a common-law duty.
All of the justices agree on certain aspects of the ruling. The court unanimously finds that there is no valid assumed-duty claim against the father (since he wasn’t there when his wife made the promise), that the complaint stated a valid assumed-duty claim against the mother, and that the question of proximate causation is for the jury. The justices also agree that a parent in this situation does not become an insurer of the child’s safety, although Justice Koontz warns that the court has implicitly done just this. But the sharp divide on the remaining issues is bound to feature prominently in discussions wherever plaintiff’s lawyers and defense lawyers gather (such as at CLE presentations).
Careful readers will note something a bit unusual about Justice Kinser’s dissent. She goes into great detail to justify certain conclusions. For example, she spends roughly ten pages explaining why proximate cause is an issue for the jury and no special relationship existed. On its face, that’s not necessarily unusual; appellate jurists provide detailed reasoning for their rulings all the time. What’s unusual is that this discussion comes in a dissenting opinion, on issues about which there is no disagreement. Normally, such a discussion would be found in the majority opinion; not in a dissent.
I can think of three reasons why we find this level of detail in a long (25 pages) dissent. The first possibility is that Justice Kinser felt that the majority’s ruling, while correct, wasn’t sufficiently supported by caselaw and reasoning. The second is that she wanted to emphasize an aspect of those agreed rulings, to limit the scope of the court’s holding. The third (which conspiracy theorists will want to believe) is that this was originally the majority opinion in the case, but five justices later had second thoughts about the legal doctrine it would create, or the result it would engender.
This last option would also explain one other circumstance. This case was argued in the April session, and was passed over on the June opinion day (June 4). The fact that it took the court an additional six weeks to prepare this opinion is at least consistent with this conspiracy-theorist approach. But only court insiders will know for sure, and I’m not among those.
In future tragic situations such as this, where grieving parents are left wondering where to turn in the inconsolable situation of the death of a child, this case will loom large as precedent for those plaintiffs who attempt to cast a wider net for a solvent (or at least well-insured) defendant.