While our laws generally seek to avoid punishment of one person for the actions of another, there are some exceptions, particularly as it relates to a failure to protect or warn someone from a known or foreseeable danger.
As injury lawyers, we see this a lot in premises liability law, where, say management at an apartment complex failed to install working locks, which in turn allowed dangerous intruders to gain access. There have been other cases of negligent security against bars or nightclubs that failed to hire adequate crowd control to keep everyone safe, and someone was injured in a fight.
More rarely, there are cases against individuals for failure to warn of a danger posed by another individual, but usually, those cases only succeed when knowledge is clearly established and the danger was clear and specific.
The recent case of Brown v. Jacobs, before the Virginia Supreme Court, deals with whether an individual, in his capacity as an attorney, had the duty to warn a private investigator of a potential criminal assault by a third party upon whom the investigator was serving divorce papers. That third party shot and killed the private investigator, who was found three days later in the trunk of a car.
His widow sued not only the gunman, but the attorney at whose direction the papers were served.
According to court records, decedent’s widow, executor of his estate, alleged the attorney was negligent because he failed to warn her husband of the danger of personally serving divorce papers on this individual. Complainant alleged defendant knew the gunman wanted to be the dominant partner in his marriage, and was greatly upset by his wife’s unwillingness to be more subservient to him, despite his having an affair with another woman. It was also alleged defendant carried his gun with him everywhere, was exhibiting paranoid and strange behaviors and the attorney was concerned the man would become violent. In fact, the attorney reportedly investigated whether there was any authority under which he could compel the man to turn over his gun prior to serving the divorce papers, but he found none.
Decedent attempted to serve process on the gunman numerous times over a three week period, and afterward, the attorney advised him it had to be done soon because the man planned to leave the country. However, there is no indication the attorney warned decedent of other concerns about the man’s mental state or propensity to carry a weapon.
Trial court dismissed the claim against the attorney for failure to establish a special relationship between the attorney and the private investigator, and further, the facts were insufficient to show the criminal attack on decedent was reasonably foreseeable by the attorney as an imminent probability of harm.
On appeal, plaintiff argued trial court erred in finding the facts were insufficient to establish an imminent probability of harm. However, appellate court affirmed trial court’s ruling.
The court noted generally, a person has no duty to warn or protect another from third-party criminal acts, but there are exceptions when there is a special relationship between defendant and victim. Here, the court stated it has never recognized a special relationship between an attorney and a private investigator, or even further, that of employer/independent contractor (except in rare circumstances – notably involving minors).
While the civil case against the attorney cannot proceed, the case against the gunman can and likely will. Our personal injury attorneys know what is uncertain is what coverage might be provided beyond seizure of personal assets.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Brown v. Jacobs, Feb. 26, 2015, Virginia Supreme Court
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