The concept of duty in tort claims is an important one. To have a tort claim, there must be a duty, breach of duty, the breach must have caused some damage and then finally you have to prove what the damage is.
However proving the existence of a duty can be daunting.
The threshold question is what is the source of the duty. In Perlin v. Chappel, 198 Va 861 (1957), the court stated the duty of ordinary care may arise from statute, ordinance or relationship of the parties. In those instances where a statute or ordinance gives rise to the duty, then the question must be asked whether or not the statute or ordinance also gives rise to a cause of action. If it does not, then there is no cause of action based upon that statute.
Duty in Personal Injury Cases
The analysis that should be engaged in is:
- First, you must ask define the nature of the case. In particular is it a premises liability case or a general negligence case.
- Next, if the case is a premises liability case then go to the blog post on this site dealing with that.
- Next, is there a special relationship between the parties that gives rise to a duty;
- Next, was there a duty that was assumed.
- Next, was the defendant a common carrier
- Next, you must ask if there is a statutory duty and does that statute then give rise to a cause of action.
General Negligence Duty
In RGR, LLC v. Settle, 288 Va. 260, 275, 764 S.E.2d 8, 16 (2014) the Virginia Supreme Court recognized a duty to exercise due care to avoid injuring others. Under that case the only relationship that must exist for a duty to arise is a nearness of the parties, either in time or space to place the plaintiff in danger from the defendant’s acts. RGR cited the case of Southern States v. Garber, 205 Va. 757, 761 (1965). The court noted that if one person is placed in a circumstance with regard to another, that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the other person, then a duty arises to use ordinary care and skill to avoid such injury.
The Duty Is Not Abstract
The duty is not abstract. Rather, it is “always a duty owed to a discernable individual, or to a class of which that individual is a member.” Dudley v. Offender Aid and Restoration of Richmond, 241 Va. 270, 278 (1991). The class to whom the duty is owed “includes everyone who comes within the [defendant’s] reach.” Id. “This is because ‘[t]he risk reasonably perceived defines the duty to be obeyed, and risk imports relation: it is the risk to another or to others within the range of apprehension.'” Quisenberry, supra at 243 (quoting Palsgraf v. Long Island R.R. Co.¸ 248 N.Y. 339 (1928)).
The scope of the duty does not depend on any special relationship between the parties. Rather, the only “relationship” required “is a sufficient juxtaposition of the parties in time and space to place the plaintiff in danger from one of the defendant’s acts.” RGR, supra, at 280
A motorist may have a claim against a farmer who allows his cow to escape from his farm onto a public road. In Quisenberry v. Huntington Ingalls, Inc., 296 Va. 233, 818 S.E.2d 805 (2018) the Virginia Supreme Court found that a mobile hazard such as asbestos which leaves the employer’s property is not unlike livestock leaving the farm. It is not the foreseeability of the harm that creates the duty but rather it is the proximity in time and space which puts the plaintiff in danger from the defendant’s acts.
In Quisenberry the court found that there was a duty imposed upon the employer to make sure that employees did not leave the premises with dangerous substances (asbestos) on their clothing. Persons who are injured from that exposure may have a claim against that employer.
Duty in Personal Injury Cases-Special Relationship
In some cases, not only must a relationship exist but it may have to be a special relationship in order to give rise to a duty.
With A.H. v. Rockingham Publishing Co., 255 Va. 216, 495 S.E.2d 482 (1998), a minor was sexually assaulted while delivering newspapers in the early morning hours. The minor brought a negligence action against the newspaper. He alleged that the newspaper failed to inform the plaintiff of three previous pre-dawn assaults of a sexual nature upon other young carriers who were delivering newspapers. The court noted in that instance that there was a special relationship. In spite of that, the court noted that the newspaper had no duty to warn or protect the plaintiff against harm unless the danger of an assault was known or reasonably foreseeable. The court found that there was no duty.
In A.H. v. Church of God, 297 Va. 604 (2019) minor attendees at church activities were sexually abused by a church deacon. The Supreme Court concluded that the Complaint sufficiently alleged the existence of a special relationship giving rise to a duty to protect which duty was breached. Therefore the demurrer should have been denied.
In Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125 (2000), the court noted the general rule is that no one has the duty to protect another from the conduct of a third person. If there is a special relationship that exists between a plaintiff and a defendant which gives rise to the right of protection to the plaintiff or between the defendant and a third person which imposes a duty upon the defendant to control the third person, then such a duty does exist.
Duty in Personal Injury Cases-Assumed Duty
In Nolde Bros. v. Wray, 221 Va. 25, 28, 266 S.E.2d 882, 884 (1980), the Supreme Court recognized as ancient learning that one who assumes to act for whatever reason may become subject to the duty to act carefully. Tugman v. Riverside, 144 Va. 473 (1926)
With Didato v. Strehler, 262 Va. 617, 629, 554 S.E.2d 42, 48 (2001) the Supreme Court dealt with a medical malpractice case where one person undertakes services for another. Whether that is done for money or not, the person who undertakes the services that are needed to protect the other person or the other person’s things may be liable for injury. This liability arises if he fails to exercise reasonable care in carrying out these functions.
This applies if the conduct increases the risk of harm or the harm is suffered because the first party relied upon the undertaking. In other words, if one assumes a duty, then he has a duty to exercise reasonable care to perform. That line of thought may be applied to property managers hired by owners. See also Kellerman v. McDonough, 278 Va. 478, 489 (2009); Burns v. Gagnon, 283 Va. 657, 672 (2012); Cline v. Commonwealth, 2016 WL 4721393 (unpublished)
Common Carrier
In Murphy’s Hotel, Inc. v. Cuddy’s Administrator, 124 Va. 207, 97 S.E. 794 (1919) the court said that the operator of a passenger elevator in a hotel or public building is a common carrier. A common carrier owes the highest degree of care to the persons on the elevator. However that does not mean that all owners of elevators are common carriers. Also in this case the court said there is a presumption of negligence of the property owner. The owner is at fault unless there is proof showing he is not at fault.
In Hines v. Garrett, 131 Va. 125 (1921), a railroad train stopped almost a mile beyond the passenger station. A conductor then discharged a young female in an area known to be inhabited by hobos. The young woman was subsequently raped. The court recognized a high degree of care that a common carrier owes its passengers and recognized a carrier’s duty to protect the passengers from criminal acts which are reasonably foreseeable. In that instance the court held that the carrier could be liable.
Statutory Duty
In many instances a statute may set forth a duty. If it does not however give rise to a specific cause of action, then you cannot necessarily rely upon that statutory duty as the basis for your cause of action. If it does give rise to a cause of action, then so be it.
In Williamson v. The Old Brogue, Inc., 232 Va. 350, 355 (1986), the court stated that the existence of a dram shop statute which may have been violated by the defendant did not give rise to a common law duty to a third party injured by a drunk patron (former invitee) of the bar.
Call or contact us for a free consult. Also for more info on duty, see the premises liability post referenced above. See also the Wikipedia pages.
