The duty to protect others

Divided court limits liability for third-party criminal acts

By Peter Vieth, Virginia Lawyers Weekly – 10/8/2018

A sharply divided Supreme Court of Virginia says those who assume a duty to guard against criminal harm can be liable only if they communicate their undertaking.

A four-justice majority of the high court affirmed dismissal of a lawsuit against a Petersburg taxi dispatching service that failed to warn about a suspicious call in 2011. The driver sent on that call was murdered by his passenger.

The court majority said a trial judge properly dismissed the lawsuit because it alleged only an implied voluntary undertaking by the dispatch service to protect drivers from criminal harm, not an express assurance of safety measures.

The court’s Sept. 27 ruling came in Terry v. Irish Fleet Inc. (VLW 018-6-067).

Suspicious calls

Peter Armbrister drove a cab in Petersburg. He worked for a company that used a dispatch service provided by Irish Fleet. Reginald Morris administered the dispatch service.

On the evening before Armbrister was killed, Morris received eight “troubling” calls for a ride. The caller said he was using a payphone at a location where Morris knew there was no payphone. Morris regarded those calls as a “red flag.” Later, the caller asked for a pickup at a location where Morris knew all the businesses were closed.

Morris cancelled a taxicab he had dispatched to one of the calls and called another cab company to warn them about the caller.

Despite Morris’ concerns, another dispatcher took a call from the same caller at the same location the next morning and sent Armbrister to handle the fare. Armbrister was fatally shot three times by the passenger he picked up.

Assumed duty

Terry, the administrator of Armbrister’s estate sued Irish Fleet and Morris on a theory that the defendants had voluntarily assumed an implied duty to warn or protect against criminal assault by third parties.

Terry disavowed a duty arising from a special relationship with either Armbrister or the caller, distinguishing the case from a hospital liability case also decided Sept. 27 by a Norfolk circuit judge. [See page two.]

Terry conceded that the defendants did not agree or promise to warn taxi drivers or expressly communicate an intent to warn about criminal threats. The wrongful death claim was based solely on an implied voluntary undertaking. Petersburg Circuit Judge Pamela S. Baskervill sustained demurrers filed by the defendants.

The Supreme Court majority affirmed, holding that the alleged implied undertaking was insufficient to state a claim against Morris and the dispatch service.

The four justices agreed with defense attorney John A. Merrick of Richmond, who argued before the court in February that other assumed-duty-to-protect cases involved “crystal clear communication” that was lacking for Armbrister.

“There’s nothing ever communicated to him that Irish Fleet is going to warn, they’re going to protect him or anything of that nature,” Merrick said.

In its opinion, the majority noted a 1998 case in which the court declined to recognize a duty created by a defendant’s voluntary precautions, since such a duty would discourage others from taking extra precautions for fear of liability.

Moreover, a duty created without express communication is without definition, the majority reasoned. “The alleged undertaking is necessarily ambiguous and there is no designated beginning or end to the undertaking,” wrote Justice Elizabeth A. McClanahan. She was joined by Chief Justice Donald W. Lemons and Justices S. Bernard Goodwyn and D. Arthur Kelsey.

As applied in the Terry case, the majority said, an impliedly assumed duty could be owed by an indefinite number of individuals (dispatchers) to an indefinite number of individuals (cab drivers), and would apply to all similar dispatching arrangements.

“If we were to recognize that a duty to warn or protect against the danger of criminal assault by third persons could arise outside the context of a special relationship or an express undertaking, the exception would swallow the rule,” McClanahan wrote. “Therefore, we believe the recognition of a voluntarily assumed duty to warn or protect against the danger of criminal assault by a third person should be confined to express undertakings.”

Dissent would craft standards

Justice Stephen R. McCullough in dissent said he would reverse the judgment and remand for further proceedings. McCullough said the majority’s rule has no support in Virginia case law or other authorities and is inconsistent with common law. McCullough was joined by Justices William C. Mims and Cleo E. Powell.

“The effect of this unique rule is to remove any accountability for those who have, by their conduct, assumed a duty to warn or protect against the criminal acts of others and negligently performed this duty. The majority thereby leaves persons who have detrimentally relied on such conduct without recourse,” McCullough wrote.

In other contexts, assumed duties do not carry an “express promise” requirement, McCullough said.

“My extensive reading of cases (of which there are many) from sister states, treatises, and law review articles yields no support for the proposition a duty to warn or protect of a crime, uniquely among all assumed duties, can be assumed only by an express promise,” McCullough wrote.

“It is not clear as a conceptual matter why a motorist or a physician can be held liable in tort for assuming a duty by conduct, but a person assuming a duty by conduct to warn or protect others of a crime cannot,” the dissent said.

To meet the concern about the indeterminacy of an unspoken assumed duty, the dissenting justices offered a standard requiring:

  1. Purposeful conduct,
  2. Conduct beyond an isolated act,
  3. Conduct directed to a specific person or an identifiable and limited class,
  4. Liability limited by the extent of the undertaking and
  5. Detrimental reliance by the plaintiff.

Terry’s allegations would meet that standard, McCullough suggested.

“The complaint alleges that the defendants assumed a duty, and it provides a concrete example showing that the dispatchers working for Irish Fleet provided a warning to another cab driver of criminal danger. In addition, the allegations are sufficient to show that, had a warning been provided, Armbrister would have relied on the warning,” McCullough wrote.

Attorneys comment

Merrick said the majority’s decision is well supported by the law.

“The opinion is consistent with the court’s precedent and contains a careful analysis of the applicable law while reaching a narrow holding, that a defendant cannot impliedly assume a duty to protect another from the criminal acts of a third party,” Merrick said.

“Although the holding may be construed narrowly, the opinion has a broad application to pleadings in Virginia. The holding is a clear reminder that a complaint must contain factual allegations to support the existence of a legal duty flowing from the defendant to the plaintiff, notwithstanding the ‘notice pleading’ arguments often advanced in response to a demurrer,” Merrick said.

An amicus brief submitted by the Virginia Trial Lawyers Association had emphasized the “notice pleading” standard of Virginia courts.

Steven Emmert of Virginia Beach, who represented Terry on appeal, raised the same point at oral argument.

“It is true that once upon a time, pleading was jousting, where parties had to use the most sophisticated means available of avoiding each other in order for a defendant to eventually avoid the case at issue. It’s a more liberal standard now. It’s notice pleading,” Emmert said before the court in February.

Emmert called the decision an important change in Virginia tort law.

“This is a brand new doctrine,” he said in an interview. “The court basically created this doctrine and used it to decide this case.”

“It affects pleadings and proof, and will leave some injured parties without recourse despite their detrimental reliance, a fact that Justice McCullough points out in his conclusion,” he said.