Roe v. Spotsylvania Mall Co ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JANE ROE,
Plaintiff-Appellant,
v.
No. 96-2403
SPOTSYLVANIA MALL COMPANY;
NATIONAL SECURITY CONSULTANTS,
INCORPORATED,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-95-1802-A)
Argued: January 27, 1998
Decided: April 22, 1998
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Peter Stowell Everett, BLANKINGSHIP & KEITH, P.C.,
Fairfax, Virginia, for Appellant. Steven Walter Bancroft, TRICHILO,
BANCROFT, MCGAVIN, HORVATH & JUDKINS, P.C., Fairfax,
Virginia, for Appellees. ON BRIEF: Julia B. Judkins, Melissa S.
Hogue, TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUD-
KINS, P.C., Fairfax, Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jane Roe filed this tort action based on diversity jurisdiction
against a shopping mall and its security company for injuries sus-
tained as a result of her abduction and rape by a third party on the
mall's premises. The district court granted summary judgment in
favor of the mall and its security contractor, holding that under Vir-
ginia law the defendants had no duty to protect the plaintiff from the
crimes of third parties. Because we conclude that, under Virginia law,
the defendants did not assume a duty to protect Roe and did not other-
wise have a "special relationship" duty to protect her, and therefore
that the mall owed no duty to protect Roe from the criminal acts of
third parties, we affirm.
I
Spotsylvania Mall Company operates a 900,000-square foot shop-
ping mall in Spotsylvania, Virginia. The mall property includes sur-
rounding parking lots and grassy areas. About 4,000,000 persons visit
the mall each year. To provide security for the mall, Spotsylvania
engages the services of National Security Consultants, Inc., to provide
the mall with 240 man-hours of security guard service per week.
In the late afternoon of June 10, 1994, Roe, a female teenager,
walked from her home nearby to visit the mall. As she crossed
through the parking area adjoining the mall, a white car pulled up
alongside her, and its driver, Paul Meredith, offered her a ride. When
Roe declined, Meredith pulled a gun and ordered Roe into his car. He
then drove Roe at gunpoint to a grassy knoll adjacent to the mall's
south parking lot, forced her out of the car, and led her to a wooded
area on the other side of the knoll where, over the course of the next
15 to 20 minutes, he raped and forcibly sodomized her. Meredith then
returned Roe to the mall. Meredith was apprehended later that day
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and eventually was convicted of rape, abduction with the intent to
defile, and forcible sodomy.
Roe filed this tort action against the mall and National Security,
alleging that (1) the mall breached a duty it had assumed to protect
invitees from criminal assault; (2) the mall breached a duty to protect
invitees because it fostered a climate of criminally assaultive activity;
(3) the mall breached a duty to protect invitees because it was aware
of an imminent probability of harm; (4) the mall breached a duty to
warn invitees of the dangerous condition of the mall; (5) National
Security breached a duty of reasonable care; and (6) National Security
breached its security contract with the mall, and Roe, as an invitee,
was a third-party beneficiary of the contract. On motion for summary
judgment, the district court ruled that Roe had not made a showing
that the mall attracted or provided a climate of assaultive crime, nor
that the defendants had knowledge of the imminent probability of
harm to their invitees. Having earlier dismissed Roe's other grounds
for liability, it granted summary judgment in favor of the defendants.
On appeal, Roe challenges the district court's failure to address her
assumption of duty argument and its ruling that the relationship
between the parties did not impose a "special relationship" duty on
the mall to protect Roe from the criminal actions of third parties.
II
As her first argument, Roe contends that the mall, in undertaking
to hire a security company and to provide security services at the
mall, assumed a duty to protect its invitees. She also contends that the
mall's guards, in response to complaints about Meredith, told invitees
that they would "keep an eye out" for a man fitting his description.
She contends that the mall breached these assumed duties because it
had only one guard on duty at the time when Roe was raped and
because that guard was patrolling only the inside of the mall. Further,
she asserts that the mall inadequately guarded its parking lots and
adjacent areas and improperly deployed its guards.
In Virginia, landowners generally owe no duty to protect their
invitees from the criminal actions of third parties. See Wright v.
Webb, 362 S.E.2d 919, 920 (Va. 1987). Where a landowner has no
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duty to exercise reasonable care, no tort action for negligence may
stand. See Deem v. Charles E. Smith Management, Inc., 799 F.2d 944,
945 (4th Cir. 1986). Virginia has explicitly held that a business invitor
whose method of business does not foster an environment for assault,
and who is not aware of an imminent probability of harm to an
invitee, "does not have a duty to take measures to protect an invitee
against criminal assault." Wright, 362 S.E.2d at 922.
Although Roe can cite no controlling precedent indicating that the
provision of security services extends this duty to protect, she argues
that Virginia has, in some circumstances, recognized that "one who
assumes to act, even though gratuitously, may thereby become subject
to the duty of acting carefully, if he acts at all." Ring v. Poelman, 397
S.E.2d 824, 826 (Va. 1990) (quoting Glanzer v. Shepard, 135 N.E.
275, 276 (N.Y. 1921) (Cardozo, J.)). In support of this proposition,
she cites Virginia cases which hold that when a landlord enters a ten-
ant's abode with the purpose of making repairs, the landlord must use
reasonable care in performing the repairs. See Holland v. Shively, 415
S.E.2d 222, 224 (Va. 1992); Kesler v. Allen, 353 S.E.2d 777, 779 (Va.
1987).
Although Virginia has not applied this principle broadly, Roe asks
us to conclude that Virginia courts would nevertheless hold that this
principle applies to the provision of security services by business invi-
tors. This we decline to do. Although Virginia has equated the duties
of a proprietor to an invitee with those of a landlord to a tenant, it has
also explicitly held that a landlord has no duty to"``protect his tenant
from a criminal act by a third person.'" Wright, 362 S.E.2d at 921
(quoting Gulf Reston, Inc. v. Rogers, 207 S.E.2d 841, 844 (Va.
1974)). Virginia law perceives the third party's criminal action as a
superseding cause of damages that obviates an invitor's potential duty
to protect. Thus, we find no support for the proposition that Virginia
courts would create a new "assumption of duty" exception to their
general rule that invitors have no duty to protect invitees from the
criminal acts of third parties.
Furthermore, under Virginia law, "in ordinary circumstances, acts
of assaultive criminal behavior cannot reasonably be foreseen."
Wright, 362 F.2d at 921. Thus, even if the mall did indeed have a duty
to act reasonably in undertaking its security endeavors, it was not rea-
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sonably foreseeable that a given invitee would be the victim of a
criminal assault any more frequently at the mall than anywhere else.
Roe alleges that around 150 crimes against the person took place at
the mall during the four years before her rape. During this same time,
around 16,000,000 persons visited the mall. Thus, the mall's rate of
crime is less than one crime for every 100,000 visitors to the mall.
Even combined with the knowledge that these 150 crimes included
some small number of sexual molestations and exposures, it was sim-
ply not legally foreseeable to the mall that it would imminently need
to provide protection against criminal assaults."In ordinary circum-
stances, it would be difficult to anticipate when, where, and how a
criminal might attack a business invitee." Id. The circumstances of the
mall are not out of the ordinary, and the defendants therefore assumed
no duty to protect their invitees from the assaults of criminal parties
when they undertook to provide security services.
III
Roe argues alternatively that the mall is liable for tort damages
because of its special relationship to invitees as a business invitor. She
argues that the mall, as a semi-public thoroughfare with minimal
security that had experienced numerous crimes, provided a climate for
assaultive crimes. She also argues that the fact that the mall had expe-
rienced over 150 crimes against the person over the course of the four
years prior to Roe's rape, compounded with the mall's knowledge
that a person with a description similar to Meredith's had been fre-
quenting the mall, "trying to get young women to go to bed with
him," created an imminent probability of an invitee being assaulted.
We cannot agree. Under Virginia law, a duty of care may arise
when there is a "special relationship" between the parties, such as that
of "business proprietor-invitee." A.H. v. Rockingham Publ'g Co.,
1998 WL 23298, *2 (Va. Jan. 9, 1998). However, this duty of care
can only apply to protect invitees from the criminal assaults of third
parties where the proprietor's method of business"attract[s] or pro-
vide[s] a climate for assaultive crimes," or where the proprietor
"knows that criminal assaults against persons are occurring, or are
about to occur, on the premises which indicate an imminent probabil-
ity of harm to an invitee." Wright, 362 S.E.2d at 922.
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Roe's argument that the Spotsylvania Mall creates a climate for
assaultive crimes is unsupported in the record. Under her interpreta-
tion of Wright, almost any public accommodation would provide a
climate for assaultive crimes. The Wright court is more readily under-
stood to have meant that assault-fostering businesses are those in
which the business enterprise itself is particularly solicitous of,
encouraging of, or benefiting from, assaultive behavior. See Godfrey
v. Boddie-Noell Enterprises, Inc., 843 F. Supp. 114, 123 (E.D. Va.
1994), aff'd, 46 F.3d 1124 (4th Cir. 1995); Rosen v. Red Roof Inns,
Inc., 950 F. Supp. 156, 161 (E.D. Va. 1997). Understood this way, it
is clear that the mall is not such an enterprise. Roe has not presented
evidence that the mall in any way encouraged or benefited from a cli-
mate of criminal assault. On the contrary, the record shows that Spot-
sylvania Mall is a typical family-oriented establishment, with
department stores, restaurants, and other shops.
Roe's argument that the mall knew that an imminent probability of
harm faced its invitees is similarly unsupported. In order to prove that
a defendant had knowledge of an imminent probability of harm, the
plaintiff must be able to show that the defendant had "``notice of a spe-
cific danger just prior to the assault.'" Burns v. Johnson, 458 S.E.2d
448, 450 (Va. 1995) (quoting Wright, 362 S.E.2d at 922). In this case,
Roe has put forth no evidence sufficient to allow a jury to find that
the mall had such notice. Knowledge that occasional previous crimes
against the person have occurred on the mall's premises does not
create notice of a specific danger of assault, see, e.g., Rosen, 950 F.
Supp. at 160; Rockingham, 1998 WL at *3, nor does the knowledge
that a man with Meredith's description had molested one woman on
the premises and had been subject of a number of complaints. If Mer-
edith's previous conduct is sufficient to alert the mall that a rape
would occur, the mall would likewise be on notice of every assault
whenever it knows of arguments occurring on its premises. Roe has
presented no evidence that any recent previous assaults at the mall
could foretell the next one or that assaults on the mall's premises were
common enough to make it reasonably foreseeable that another
assault would imminently occur. Cf. Wright, 362 S.E.2d at 921-22;
Rockingham, 1998 WL at *2-*3.
Finally, because National Security had no special relationship with
the mall's invitees cognizable under Virginia law, it had no duty to
6
protect those invitees from the criminal acts of third parties. It there-
fore cannot be liable in tort for damages caused by the criminal
actions taken against Roe.
AFFIRMED
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