JJ., and Stephenson, S.J.
JONATHAN THOMPSON, AN INFANT WHO SUES BY
HIS MOTHER AND NEXT FRIEND, CYNTHIA THOMPSON
OPINION BY
v. Record No. 000461 JUSTICE LAWRENCE L. KOONTZ, JR.
January 12, 2001
SKATE AMERICA, INC., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
In this appeal, we consider whether the trial court
properly sustained demurrers to a motion for judgment. In his
motion for judgment, the plaintiff, a business invitee, alleged
that a minor, also a business invitee, intentionally injured him
while on the premises of the business owner. The plaintiff
further alleged that his injuries proximately resulted from the
negligence of the business owner and the minor's parent.
BACKGROUND
Our review is governed by the well-settled principle that
when we consider the trial court's sustaining of a demurrer "we
look solely at [the plaintiff's] allegations in his motion for
judgment to determine whether he stated a cause of action."
Perk v. Vector Resources Group, Ltd., 253 Va. 310, 312, 485
S.E.2d 140, 142 (1997). In accord with this standard of review,
we will recite as true the well-pleaded facts in the motion for
judgment.
On October 18, 1999, Jonathan Thompson, by his mother and
next friend, Cynthia Thompson, filed a motion for judgment
against Skate America, Inc., Travis Bateman, and Bonnie Mundie,
Bateman's mother. That pleading contains the following
allegations of fact. On March 12, 1999, Thompson and Bateman
were both patrons and invitees of Skate America, a commercial
skating rink in Hanover County. "[O]n several prior occasions,
Bateman had caused disturbances, arguments and fights" at Skate
America and "was a known trouble maker, consistently disobeyed
the rules of [Skate America] and generally was a menace to . . .
patrons of the skating rink." On several prior occasions,
"Bateman had been ejected from Skate America by its employees,"
and he "had been banned from reentry to Skate America on
multiple occasions and was under such a ban" on March 12, 1999.
At closing time, Thompson and Bateman were waiting on Skate
America's premises for their parents to pick them up.
"[W]ithout . . . provocation, Bateman struck [Thompson] in the
back of [his] head with a roller skate, fracturing [his] skull,
causing severe and permanent damage, extensive hospitalization
and medical expense and grave emotional damage."
In separate counts of the motion for judgment, Thompson
asserts that Skate America, Bateman, and Mundie are separately
and jointly liable for the injuries caused by Bateman.
Bateman's alleged liability is premised on the assault and
battery being a deliberate, intentional act. Skate America's
and Mundie's alleged liability is premised on their negligent
failure to conduct themselves in accord with duties of care each
owed, as business owner and parent respectively, to Thompson
regarding the danger of injury from the unlawful act of Bateman.
It is further asserted in the motion for judgment that
Thompson's injuries were proximately caused by the actions of
the defendants.
Thompson specifically asserts in the motion for judgment
that Skate America owed its business invitees a duty to protect
them by "exclud[ing] persons it knew or, in the exercise of
reasonable care, should have known, demonstrated violent and
aggressive behavior, so that business invitees, including
[Thompson], would not be in danger of physical harm from" such
persons. He further asserts that having banned Bateman from the
premises, Skate America "failed and neglected to properly
supervise Bateman once he had entered, and failed and neglected
to keep the premises safe for those lawfully on the premises."
Thompson also specifically asserts in the motion for
judgment that Mundie "knew or in the exercise of reasonable
care, should have known of Bateman's aggressive and violent
behavior, . . . that Batemen had been [banned] from Skate
America and . . . that Bateman was a risk to those . . . around
him." Thompson further asserts that, in light of this
knowledge, "Mundie had the duty, as Bateman's mother and legal
custodian, . . . to properly supervise and control him so that
he would not endanger those around him."
Skate America filed a demurrer to the motion for judgment.
Citing Wright v. Webb, 234 Va. 527, 530, 362 S.E.2d 919, 920
(1987), Skate America contended that a business owner is
generally under no duty to protect an invitee from a third
person's criminal act committed while the invitee is upon the
owner's premises. Skate America conceded that Wright recognized
a "narrow, limited exception to this general rule," Burns v.
Johnson, 250 Va. 41, 44, 458 S.E.2d 448, 450 (1995), where the
owner "knows that criminal assaults against persons are
occurring, or are about to occur, on the premises which indicate
an imminent probability of harm to an invitee," and that in such
cases this exception requires "notice of a specific danger just
prior to the assault." Wright, 234 Va. at 533, 362 S.E.2d at
922. Skate America contended, however, that the allegations of
its knowledge of Bateman's prior propensity for disruptive,
violent behavior were insufficient to establish that it had
notice of the specific danger that Bateman would assault
Thompson.
Mundie also filed a demurrer to the motion for judgment.
Relying upon Bell v. Hudgins, 232 Va. 491, 494, 352 S.E.2d 332,
334 (1987), Mundie contended that, in the absence of a
principal-agent relationship, a parent cannot be held separately
liable for the malicious, intentional acts of a minor child
premised upon the independent negligence of the parent in
failing to control or supervise the child.
On December 3, 1999, the trial court held a hearing to
consider both demurrers. Skate America and Mundie adhered to
the positions stated in their pleadings. Thompson, who had not
filed a response to either demurrer, argued that Skate America's
decision to ban Bateman from its premises showed that it had
sufficient notice that Bateman was a present danger to other
patrons. Thompson also argued that a parent could be liable for
negligently failing to prevent a child from acting on a known or
knowable predilection to commit criminal acts.
The trial court sustained both demurrers. In the order
dismissing Skate America and Mundie from the suit, the trial
court expressly relied upon the Wright and Bell cases as the
basis for its judgment. We awarded Thompson this appeal.
DISCUSSION
Initially, the finality of the judgments at issue here
requires explanation. Bateman has not yet filed a response to
the motion for judgment or otherwise entered an appearance in
the trial court, or in this Court although he was made a party
to this appeal. Thus, the case against Bateman remains active
in the trial court, and the judgment order that is the subject
of this appeal is interlocutory in nature.
An interlocutory order which is final as to some but not
all parties may in some circumstances be appealed before the
case is concluded as to all defendants under the severable
interests rule set forth in Wells v. Whitaker, 207 Va. 616, 628-
29, 151 S.E.2d 422, 432-33 (1966). See also Leggett v. Caudill,
247 Va. 130, 134, 439 S.E.2d 350, 352 (1994). Under this rule,
a final adjudication of a collateral matter that addresses
separate and severable interests can be appealed only when the
appeal cannot affect the determination of the remaining issues
in the case, even if the adjudication is reversed. Id. In such
instances, the order may be appealed either at the time of its
entry or when the trial court enters a final order disposing of
the remainder of the case. Code 8.01-670(A)(3); see also,
e.g., Hinchey v. Ogden, 226 Va. 234, 236-37 and n.1, 307 S.E.2d
891, 892 and n.1 (1983).
Bateman's liability, as alleged in the motion for judgment,
is for the intentional assault and battery of Thompson. The
cause of action for this intentional act by Bateman is separate
and distinct from the causes of action for negligence asserted
against Skate America and Mundie. Accordingly, the order that
sustained the demurrers and dismissed Skate America and Mundie
from the case was final as to them and severable from the
interests of the remaining defendant.
The trial court's orders sustaining the two demurrers, each
to a distinct cause of action, are addressed by Thompson in two
assignments of error, one addressed to each demurrer.
Accordingly, we will consider the legal sufficiency of the
motion for judgment to state those two causes of action
seriatim.
Cause of Action Against Skate America
The procedural posture of this case is significant. A
demurrer tests only the legal sufficiency of the claims stated
in the pleading challenged. Dray v. New Market Poultry
Products, Inc., 258 Va. 187, 189, 518 S.E.2d 312, 312 (1999).
While a demurrer does not admit the correctness of the
pleading's conclusions of law, Ward's Equip., Inc. v. New
Holland North America, Inc., 254 Va. 379, 382, 493 S.E.2d 516,
518 (1997), it "admits the truth of all material facts that are
properly pleaded, facts which are impliedly alleged, and facts
which may be fairly and justly inferred," Cox Cable Hampton
Roads, Inc. v. City of Norfolk, 242 Va. 394, 397, 410 S.E.2d
652, 653 (1991). 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. In this context, a
plaintiff challenging on appeal the sustaining of a defendant's
demurrer by the trial court need show only that the trial court
erred in finding that the pleading failed to state a cause of
action, and not that the plaintiff would have prevailed on the
merits of that cause.
Guided by these principles, the issue we must decide is
whether the factual allegations in Thompson's motion for
judgment are sufficient, as a matter of law, to establish that
Skate America had a duty of care to protect Thompson from the
injuries caused by Bateman such that a jury could find it liable
for those injuries. See Burns v. Johnson, 250 Va. 41, 44, 458
S.E.2d 448, 450 (1995). Whether such duty exists is "a pure
question of law." Id. at 45, 458 S.E.2d at 451; Acme Markets,
Inc. v. Remschel, 181 Va. 171, 178, 24 S.E.2d 430, 434 (1943)
("[t]he law determines the duty, and the jury, upon the
evidence, determines whether the duty has been performed").
Familiar principles control our determination of whether
Skate America potentially had a duty of care in this case. "In
Virginia, we adhere to the rule that the owner or occupier of
land ordinarily is under no duty to protect an invitee from a
third person's criminal act committed while the invitee is upon
the premises." Gupton v. Quicke, 247 Va. 362, 363, 442 S.E.2d
658, 658 (1994). However, we have recognized that certain
"special relationships" may exist between particular plaintiffs
and defendants, either as a matter of law or because of the
particular factual circumstances in a given case, which may give
rise to a duty of care on the part of the defendant to warn
and/or protect the plaintiff against the danger of harm from the
reasonably foreseeable criminal acts committed by a third
person. We also have stressed that "[b]efore any duty can arise
with regard to the conduct of third persons, there must be a
special relationship between the defendant and either the
plaintiff or the third person." A.H. v. Rockingham Publishing
Co., 255 Va. 216, 220, 495 S.E.2d 482, 485 (1998)(employer has a
de jure special relationship with its employees); see also Delk
v. Columbia/HCA Healthcare Corp., 259 Va. 125, 132, 523 S.E.2d
826, 830-31 (2000)(medical facility created de facto special
relationship with its patient when it determined that she was in
need of constant supervision and surveillance); Burdette v.
Marks, 244 Va. 309, 312-13, 421 S.E.2d 419, 420-21
(1992)(special relationship existed between deputy and passerby
which imposed legal duty upon deputy to render assistance to
passerby and protect him from attack). We have recognized
examples of such necessary special relationships that arise as a
matter of law to include a common carrier and its passengers, an
employer and its employees, an innkeeper and its guests, and a
business owner and its invitees. See A.H., 255 Va. at 220, 495
S.E.2d at 485; Klingbeil Management Group Co. v. Vito, 233 Va.
445, 448, 357 S.E.2d 200, 201 (1987). Undoubtedly, a special
relationship existed here between Skate America, a business
owner, and Thompson, its invitee. Accordingly, the dispositive
question in this case is whether that special relationship also
gave rise to a duty of care on the part of Skate America to
protect Thompson from the danger of harm from the criminal act
of Bateman.
In Wright, the first instance in which we addressed
directly the special relationship between a business owner and
an invitee, we held that despite the existence of that special
relationship, the business owner does not owe a duty of care to
protect its invitee unless it "knows that criminal assaults
against persons are occurring, or are about to occur, on the
premises which indicate an imminent probability of harm to [its]
invitee." Wright, 234 Va. at 533, 362 S.E.2d at 922. We
further held that for the duty to be imposed there must be
"notice of a specific danger just prior to the assault." Id.
As it did in the trial court, Skate America contends on
appeal that the principles stated in Wright are controlling in
this case. It argues that the motion for judgment fails to
allege facts that state, imply, or raise the fair and just
inference that it had notice of the specific danger of the
assault on Thompson by Bateman or that it knew that the assault
on Thompson was occurring, or about to occur, on its property.
Accordingly, Skate America asserts that, even if it had a
special relationship with Thompson, the trial court properly
concluded that the facts were insufficient to support the legal
conclusion that Skate America owed a duty of care to protect
Thompson. While we agree that the general principles stated in
Wright are implicated in this case, we disagree with Skate
America's conclusion regarding the legal sufficiency of the
factual allegations in Thompson's motion for judgment.
The significant factor which distinguishes this case from
Wright, and from other similar cases, with respect to the
question whether Skate America owed Thompson, its invitee, a
duty of care to protect him from criminal assaults on its
premises is that here it is alleged that a specific individual
was known to Skate America to be violent and to have committed
assaults on other invitees on its property in the recent past.
While in Wright, and other cases, we have declined to "impose
liability for negligence based solely upon . . . a background"
of prior criminal activity on the defendant's premises or in its
vicinity by unknown persons, 234 Va. at 533, 362 S.E.2d at 922,
here the circumstances are quite different. Indeed, the
allegations in Thompson's motion for judgment plainly state that
Skate America had specific knowledge of Bateman's propensity to
assault its other invitees, had intervened to inhibit that
behavior in the past, and had taken steps to avoid a
reoccurrence of that behavior in the future. Thus, taking these
allegations as true on demurrer, we are of opinion that the
allegations as to Bateman's presence on Skate America's premises
were sufficient to state a claim that Skate America was on
notice specifically that Thompson was in danger of being injured
by Bateman in a criminal assault. The "imminent probability" of
that harm, as characterized in Wright, is merely a heightened
degree of the "foreseeability" of that harm and here we are of
opinion that the specific allegations concerning the knowledge
Skate America had of Bateman's prior violent conduct satisfied
the necessary degree of foreseeability.
Similarly, these allegations raise the fair and just
inference that the magnitude of the burden on Skate America to
guard against Bateman's act was negligible, in as much as Skate
America need only to have enforced the ban it was alleged to
have imposed on Bateman. The consequences of placing that
burden on Skate America are equally negligible, for it is
obviously in the best interest of any business owner to exclude
from its premises a person it knows has disrupted its business
in the past and who is likely to do so in the future.
We emphasize that our consideration is limited to the
question whether the allegations in this motion for judgment are
sufficient to state a cause of action against this particular
business owner. Whether the evidence produced at trial would
confirm those allegations, and whether a jury would assign
sufficient weight to that evidence to impose liability on Skate
America for a breach of the duty of care owed must be resolved
at trial on remand. We hold, however, that the allegations of
the motion for judgment were sufficient to state a cause of
action against Skate America and, thus, we further hold that the
trial court erred in sustaining Skate America's demurrer to the
motion for judgment.
Cause of Action Against Mundie
Thompson recognizes on brief that we have declined to
impose liability on parents for the criminal acts of their minor
children under a theory of negligent parental supervision.
Bell, 232 Va. at 494, 352 S.E.2d at 334. Thompson contends,
however, that we have recognized potential parental
responsibility for tortious acts committed by minor children in
other contexts such as the negligent entrustment of an
automobile. See, e.g., Turner v. Lotts, 244 Va. 554, 558, 422
S.E.2d 765, 767 (1992). Thompson asserts that "it is impossible
to distinguish between liability for permitting a youth to
operate a vehicle when injury is likely and permitting a child
to be at a public place where he has been banned for aggressive
conduct." Accordingly, he invites us to reconsider the rule in
Bell, asserting that it "is not just and it should not be the
law of the Commonwealth of Virginia."
Thompson's reliance on Turner is misplaced. While it is
true that the defendant in Turner was the parent of the
tortfeasor, this fact was not relevant to our consideration of
whether the allegations in that case were sufficient, as a
matter of law, to support a claim of negligent entrustment.
Rather, our inquiry was limited to whether the defendant "`knew,
or had reasonable cause to know, that he was entrusting his car
to an unfit driver likely to cause injury to others.'" Turner,
244 Va. at 557, 422 S.E.2d at 767 (quoting Denby v. Davis, 212
Va. 836, 838, 188 S.E.2d 226, 229 (1972)). Accordingly, the
holding in Turner has no bearing on the reconsideration of Bell
urged upon us by Thompson.
In Bell, we said:
We are unwilling to establish in Virginia by
judicial decree a blanket rule which would impose
civil liability upon parents who fail to control their
minor child's criminal behavior. The General Assembly
already has legislated in this area, but stopped short
of imposing the broad parental liability urged by the
plaintiff.
. . . .
We believe that a decision whether to adopt a
doctrine of parental neglect is more properly left to
the legislature because of the many societal and
policy considerations which necessarily bear upon such
a decision.
Bell, 232 Va. at 494-95, 352 S.E.2d at 334 (citations
omitted).
In the fourteen years since we rejected the plaintiff's
invitation in Bell to impose by judicial fiat direct liability
upon parents for the alleged negligent supervision of their
minor children, the General Assembly has left that holding
undisturbed. We remain of opinion that the answers to the
"policy questions generated by the rule advocated by the
plaintiff should come from the General Assembly and not the
courts." 232 Va. at 495, 352 S.E.2d at 334. Accordingly, we
decline Thompson's invitation to revisit the issue, and we hold
that the trial court did not err in sustaining Mundie's demurrer
to the motion for judgment.
CONCLUSION
For these reasons, we will reverse the trial court's
judgment sustaining Skate America's demurrer to the motion for
judgment, affirm that portion of the judgment sustaining
Mundie's demurrer to the motion for judgment, and remand the
case to the trial court for further proceedings consistent with
the views expressed in this opinion.
Affirmed in part,
reversed in part,
and remanded.
The motion for judgment does not state the ages of Thompson
or Bateman, referring to them only by the legal designation of
"infant." On brief, the parties refer to Thompson and Bateman
as "teenagers."
Thompson does not assert in his motion for judgment that
Skate America had a duty to warn him concerning the danger of
harm from an assault by Bateman.
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