Do we have a special relationship or not?

The Supreme Court of Virginia recently declined to extend the special relationship doctrine to the duty to warn against third party criminal acts.  The Court, however, again left open the possibility that a special relationship could arise at any time depending on the facts of any particular case.

In Brown v. Jacobs, a private investigator was shot and killed while attempting to serve divorce papers.  The Supreme Court of Virginia held that the Rockingham County Circuit Court did not err in dismissing the wrongful death claim at the pleading stage.  768 S.E.2d 421, 423 (2015).  The Complaint alleged that the attorney hired the private investigator to serve the assailant with divorce papers, and that he instructed the private investigator to perfect service “however and whenever he could”.  It was also alleged that the attorney knew the assailant wanted to be the dominant partner in the marriage, that the assailant carried a gun with him everywhere and exhibited paranoid behavior, and that the attorney was informed the assailant had been behaving strangely.  The attorney did not, however, warn the private investigator about the gun or any possibility of danger when he asked the investigator to serve the divorce papers.

On appeal, the Supreme Court reiterated that a special relationship could arise as a matter of law or from the factual circumstances of a particular case.  The Court confirmed that the only special relationships that have been recognized as a matter of law are those of common carrier/passenger, innkeeper/guest, employer/employee, business owner/invitee, and hospital/patient.  A special relationship between an attorney and private investigator has never been recognized, and the Court declined to do so in this case.

The private investigator’s estate argued that the relationship was really one of employer/independent contractor and relied on A.H. v. Rockingham Publishing Co., 255 Va. 216, 495 S.E.2d 482 (1998) to assert that such an arrangement constituted a special relationship.  The Court, however, found that the special relationship between employer and independent contractor that was recognized in A.H. arose from the particular facts of that case rather than by operation of law.  In A.H., a newspaper carrier who was a minor was sexually assaulted while delivering papers on an assigned route at an assigned time when the publisher had knowledge of three prior sexual assaults on newspaper carriers employed by the publisher.  Due to the unique circumstances of that case, the Court found a special relationship existed under Virginia law.

In Brown, the Court held that under the alleged facts, an attorney did not have a duty to warn his process server of the danger of personally serving the would-be assailant with divorce papers because a special relationship did not exist between the two.  Although the Court declined to find that a special relationship between the attorney and private investigator arose from the unique circumstances of the case, it once again left open the possibility that a special relationship could be recognized on an ad hoc basis depending on the particular facts of a case.  As a result, there is still little substantive guidance on when a duty to warn against third party criminal acts may arise, and a party may not realize they owed a duty to warn until it is too late.