ANALYSIS OF MARCH 25, 2021 SUPREME COURT OPINION
(Posted March 25, 2021) It’s a notable day in the appellate field. On a day when SCOTUS turns back a major challenge to the venerable International Shoe doctrine (see Ford Motor Co. v. Montana 8th Judicial Dist. Ct.), the Supreme Court of Virginia hands down a long-awaited decision in a significant tort case.
Today’s decision in Shoemaker v. Funkhouser addresses a form of vicarious liability. This is a tragic wrongful-death action in which the defendants gave their adult grandson permission to engage in target shooting on their 8-acre property in Shenandoah County. The shooter’s angle of firing was such that a stray shot hit a neighboring house, striking and killing a person inside.
The estate sued the grandparents alleging that they gave their grandson that permission knowing that he’d be shooting toward a house. The suit claimed that they had a duty to others to prevent this dangerous use of their property. A circuit court sustained the grandparents’ demurrer, citing lack of a duty and Virginia’s Recreational Use statute, Code §29.1-509.
The justices entertained oral argument in this appeal back in November. The reason for the delayed release of the ruling is apparent from the 43-page opinion, comprising Justice McCullough’s majority and Justice Kelsey’s dissent. (The dissent is roughly twice as long as the majority; Justice Kelsey likes to write expansively.)
The majority today reverses and sends the case back for trial, by a 4-3 margin. The majority rules that Virginia law required the grandparents in this situation to exercise care to prevent the shooter from lining up toward a nearby house. The court specifically rules that the grandparents were, as alleged in the complaint, in the shooter’s vicinity, as they were in their house within sight of their grandson’s position. The decision rests on the Restatement (Second) of Torts, which the court has approved often.
The court also rejects the circuit court’s ruling on the Recreational Use statute. It holds that while the statute protects landowners from liability to those who use their property for certain recreational purposes, a parallel immunity from liability to third persons injured by their invitee doesn’t extend as far, leaving the grandparents subject to potential liability here.
Justice Kelsey files his dissent on behalf of the chief justice and Justice Chafin. The dissenters chide the majority for applying, not the Restatement itself, but a Reporter’s note and a separate caveat. Those additions, the dissent argues, don’t represent the consensus view of the American Law Institute, which publishes the Restatements, but of the Reporter alone.
The dissent also believes that the Recreational Use statute’s immunity provisions are best read to be coextensive. That would mean that the grandparents are just as protected from liability to a third person as they are from liability to their grandson.
If you’re a fan of statutory interpretation, this opinion is for you. Both authors dive into legal history, and both write with vigor today.
This decision will likely form one of a triad of rulings involving duties to third parties. The previous two were RGR v. Settle in 2014 and Quisenberry v. Huntington Ingalls in 2018. Both of those decisions were 4-3, too, so any change in the makeup of the court – specifically including the participation of a senior justice in a given appeal – could affect the durability of this doctrine.