Supreme Court of Virginia Holds the Line on Pleading “Assumption of Duty”

HCCW attorneys prevailed in an important decision by the Supreme Court of Virginia, Terry v. Irish Fleet, Inc., Record No. 170288, decided September 27, 2018.  Terry held (by a 4-3 margin) that an assumed duty to warn or protect against the danger of a third party criminal assault should be confined to express undertakings, not implied undertakings.  The underlying Complaint alleged that the defendant taxi company “undertook” to screen calls, determine the safety risk of those calls, and warn of dangerous fares before dispatching another company’s driver.  The defendant allegedly overlooked a “red flag” warning and dispatched the driver who was shot and killed by his passenger.

The Supreme Court found that the Circuit Court correctly sustained a Demurrer to the Complaint.  The Court reasoned that generally “there is no duty to warn or protect against acts of criminal assault by third parties,” because “under ‘ordinary circumstances, acts of assaultive criminal behavior by third persons cannot reasonably be foreseen.’”  Given that, a duty to warn or protect against the danger of a third party criminal assault can arise only in the context of a special relationship (such as common carrier-passenger) or an express undertaking.  The alleged undertaking in this case was “necessarily ambiguous” as the Complaint did not allege a specifically described undertaking.  As a result, the reliance on only an implied undertaking was insufficient to state a claim.

The dissent described the decision as “unique to Virginia” and contrary to “our caselaw, the Second Restatement of Torts, persuasive authority from other states, [and] academic commentary” and “inconsistent with the concept of an assumed duty as that concept comes to us from the common law.”

Terry is an important decision on assumption of duty under Virginia law.  It also may be capable of broad application in support of demurrers on the ground that plaintiffs have not pled facts that give rise to a legal duty.  The Court’s opinion and the dissent are available here: