Brown v. Jacobs ( 2015 )

PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, and Powell,
JJ., and Russell and Koontz, S.JJ.
DEBARA D. BROWN, EXECUTOR OF THE
ESTATE OF ARTHUR GREGORY BROWN
OPINION BY
v. Record No. 140270 JUSTICE S. BERNARD GOODWYN
February 26, 2015
SHERWIN JOHN JACOBS
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Jane M. Roush, Judge
In this appeal, we consider whether there is a special
relationship between an attorney and a private investigator
hired by that attorney to serve process, which imposes a duty
upon the attorney to warn the private investigator of potential
danger from criminal assault by a third party.
Background
On September 1, 2011, Debara D. Brown (Brown) filed a
complaint as executor of the estate of her husband Arthur
Gregory Brown (the decedent) in the Circuit Court of Rockingham
County. In her complaint, Brown asserted a cause of action for
wrongful death, pursuant to Code § 8.01-50, against Ali Al-
Ibrahim Abid (Abid), alleging that Abid shot and killed the
decedent, a private investigator, while the decedent was
attempting to serve “divorce papers” on Abid in Harrisonburg,
Virginia.
Brown was granted leave to file an amended complaint that
added a wrongful death claim against Sherwin John Jacobs
(Jacobs), the attorney who hired the decedent to serve Abid.
Brown claimed that Jacobs was negligent because he did not warn
the decedent “of the danger of personally serving . . . Abid or
of the danger that . . . Abid would cause [the decedent] harm
or was a risk to cause him harm.”
The circuit court sustained Jacobs’ demurrer to the
amended complaint. Brown filed a motion for reconsideration
and motion for leave to amend along with her proposed second
amended complaint, which proffered additional allegations in
support of her claim. After considering Brown’s motions and
the proffered second amended complaint, the circuit court
denied both motions and dismissed the case against Jacobs with
prejudice. Brown appeals. 1
1
A default judgment was entered against Abid. The circuit
court subsequently held an evidentiary hearing and awarded
damages against Abid. Brown does not appeal that judgment.
2
Facts 2
The amended complaint asserts that the decedent was a
private investigator in Harrisonburg, who owned Argus
Investigative Services. Jacobs is an attorney who hired the
decedent to personally serve “divorce papers” on Abid and
instructed the decedent regarding where and when to serve Abid.
The amended complaint also alleges that when Jacobs hired the
decedent, Jacobs knew Abid owned a gun, but Jacobs did not warn
the decedent that Abid had a gun or of the possibility of
danger upon serving Abid.
On March 3, 2011, while the decedent was trying to serve
process on Abid, Abid shot and killed him. Three days later,
police found the decedent’s body in the trunk of his car in
Harrisonburg.
In the proffered second amended complaint lodged with the
circuit court, Brown amplified her allegations against Jacobs.
In the second amended complaint, Brown asserted that Jacobs
2
For purposes of evaluating a demurrer, a court assumes
that all material facts, implied facts and reasonable
inferences from those facts that are properly alleged in the
complaint are true. Assurance Data, Inc. v. Malyevac, 286 Va.
137, 143, 747 S.E.2d 804, 807 (2013). However, it does not
admit the correctness of conclusions of law. See Thompson v.
Skate Am., Inc., 261 Va. 121, 128, 540 S.E.2d 123, 126 (2001).
Also, it is not bound by “conclusory allegations in a review of
a demurrer.” Ogunde v. Prison Health Servs., Inc., 274 Va. 55,
66, 645 S.E.2d 520, 527 (2007).
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represented Abid’s wife, Margot Kons (Kons), in a divorce
proceeding and that Jacobs knew “that Abid wished to be the
dominant partner in his marriage with Kons, and that [he] was
greatly upset by [her] unwillingness to be more subservient to
[him],” and that Abid had “developed a relationship with
another woman outside of his marriage with Kons.” Brown
alleged that Abid carried his gun with him everywhere and
exhibited paranoid behavior. She further alleged that “Kons
had informed [Jacobs] that Abid was behaving strangely.” The
second amended complaint alleged that “Jacobs was concerned
. . . Abid would become violent.” Prior to the divorce papers
being served, Jacobs investigated “whether he could have Abid’s
gun removed” but was unable to find any authority “that would
require Abid to turn over his gun.”
The decedent attempted to serve process on Abid several
times throughout the course of two or three weeks. Thereafter,
Jacobs advised the decedent to quickly serve process on Abid
however and whenever he could because Abid planned to leave the
United States “very soon.”
In sustaining Jacobs’ demurrer and denying Brown’s motion
for reconsideration and motion for leave to amend, the circuit
court ruled that Brown had failed to allege facts sufficient to
show that there was a special relationship between Jacobs and
the decedent and that “the facts alleged and the additional
4
facts proffered . . . were insufficient to establish that the
alleged criminal assault upon [the] decedent by Defendant Abid
[was] reasonably foreseeable by Jacobs as an imminent
probability of harm.”
This Court granted an appeal on the following assignments
of error:
1. The trial court erred in sustaining the
defendant’s demurrer and in dismissing the action
against him when the facts alleged in the [a]mended
[c]omplaint were sufficient to show a special
relationship between the defendant and the
plaintiff’s decedent giving rise to a duty to warn
the decedent of the risk of an assault by a third-
party.
2. The trial court erred in ruling that
plaintiff had to allege facts establishing an
“imminent probability of harm,” or heightened degree
of foreseeability, before it could find any duty to
warn, as the facts alleged in the [a]mended
[c]omplaint were adequate to establish a relationship
between the decedent and the defendant creating a
duty to warn of a “reasonably foreseeable” danger.
3. The trial court erred in sustaining the
defendant’s demurrer and dismissing the action
against him when the facts alleged in the [a]mended
[c]omplaint were sufficient to establish that the
assault upon the plaintiff’s decedent was reasonably
foreseeable by the defendant as an imminent
probability of harm.
4. The trial court erred in denying
plaintiff’s motion for reconsideration and motion for
leave to amend when the allegations in the [s]econd
[a]mended [c]omplaint proffered to the trial court
were sufficient to state a cause of action against
the defendant.
5
Analysis
Brown argues that the circuit court erred in sustaining
Jacobs’ demurrer because she alleged sufficient facts in the
amended complaint to show that a special relationship giving
rise to a duty to warn existed between the decedent and Jacobs.
She claims that the decedent was an independent contractor and
that this Court recognized the special relationship of
employer/independent contractor as a matter of law in A.H. v.
Rockingham Publishing Co., 255 Va. 216, 495 S.E.2d 482 (1998).
Alternatively, Brown contends that the particular facts alleged
in her amended complaint independently support the finding of a
special relationship between the decedent and Jacobs. We
disagree.
“The purpose of a demurrer is to determine whether a
complaint states a cause of action upon which the requested
relief may be granted.” Assurance Data, Inc. v. Malyevac, 286
Va. 137, 143, 747 S.E.2d 804, 807 (2013). Hence, a demurrer
tests the legal sufficiency of the plaintiff’s claims.
Thompson v. Skate Am., Inc., 261 Va. 121, 128, 540 S.E.2d 123,
126 (2001). This Court performs de novo review of a trial
court’s sustaining of a demurrer. Assurance Data, 286 Va. at
143, 747 S.E.2d at 808.
To plead a cause of action for negligence, a plaintiff
must allege a legal duty, “a violation of that duty” and
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“resulting damage.” See Burdette v. Marks, 244 Va. 309, 311,
421 S.E.2d 419, 420 (1992). “[W]hether a legal duty in tort
exists is a pure question of law to be reviewed de novo.”
Commonwealth v. Peterson, 286 Va. 349, 356, 749 S.E.2d 307, 311
(2013) (alteration in original) (citation and internal
quotation marks omitted). In this case, Brown alleges that
Jacobs had a duty to warn the decedent regarding Abid’s
potential criminal behavior.
Generally, “a person does not have a duty to warn or
protect another from the criminal acts of a third person.” Id.
For a court to impose a duty to warn of third-party criminal
acts on a defendant, “a special relation [must] exist[] (1)
between the defendant and the third person which imposes a duty
upon the defendant to control the third person’s conduct, or
(2) between the defendant and the plaintiff which gives a right
to protection to the plaintiff.” Burns v. Gagnon, 283 Va. 657,
668-69, 727 S.E.2d 634, 641-42 (2012) (citation and internal
quotation marks omitted). The finding of a special
relationship is a “threshold requirement.” Peterson, 286 Va.
at 356, 749 S.E.2d at 311. Brown claims that there was a
special relationship between the decedent and Jacobs.
“The necessary special relationship may be one that has
been recognized as a matter of law, . . . or it may arise from
the factual circumstances of a particular case.” Yuzefovsky v.
7
St. John’s Wood Apts., 261 Va. 97, 107, 540 S.E.2d 134, 139
(2001); see also Thompson, 261 Va. at 129, 540 S.E.2d at 127
(citing cases in which there were de jure special relationships
and de facto special relationships). Some of the special
relationships recognized by this Court include common
carrier/passenger; innkeeper/guest; employer/employee; business
owner/invitee; and hospital/patient. Kellermann v. McDonough,
278 Va. 478, 492, 684 S.E.2d 786, 793 (2009); Delk v.
Columbia/HCA Healthcare Corp., 259 Va. 125, 132, 523 S.E.2d
826, 831 (2000) (holding that a psychiatric patient pled
sufficient facts to establish a special relationship between
herself and a psychiatric hospital). This list of special
relationships is not exhaustive, but “we have exercised caution
in expanding it to include new relationships.” Burns, 283 Va.
at 669, 727 S.E.2d at 642.
This Court has never recognized as a special relationship
that of attorney/private investigator. Moreover, an
examination of our case law reveals that this Court has not
categorically recognized the relationship of
employer/independent contractor, as asserted by Brown. Brown
bases her argument that employer/independent contractor is a
recognized legal category of special relationships on this
Court’s decision in A.H. However, rather than recognizing a
categorical special relationship between an employer and an
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independent contractor, A.H. is a case in which our Court found
that a special relationship arose from the factual
circumstances of that particular case.
In A.H., this Court considered whether a newspaper
publisher owed a duty to warn a thirteen-year-old newspaper
carrier “of the danger of being attacked” while delivering
newspapers. 255 Va. at 219-20, 495 S.E.2d at 485. The carrier
had been working for the publishing company for eighteen months
when he was sexually assaulted while delivering papers on his
assigned route. Id. at 219, 495 S.E.2d at 484. During the
five years preceding A.H.’s assault, there had been “three
prior sexual assaults on Rockingham carriers in various
locations in the City of Harrisonburg.” Id. at 222, 495 S.E.2d
at 486. Although the newspaper publisher knew of these
assaults, it did not inform A.H. or his parents. Id. at 219,
495 S.E.2d at 486.
This Court determined that a special relationship existed
between the publishing company and the carrier because the
publishing company “assigned a fixed route and time for A.H. to
distribute its newspapers.” Id. at 220, 495 S.E.2d at 485.
While recognizing that the minor was an independent contractor,
we concluded, “Under the circumstances of this case . . .
Rockingham owed the same degree of care to A.H. that it would
have owed if A.H. had been employed by Rockingham.” Id.
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(emphasis added). The Court also observed that “the
plaintiff’s age may have imposed a greater degree of care upon
Rockingham than it would have owed an adult in the plaintiff’s
circumstances.” Id. at 221, 495 S.E.2d at 486.
We recognized a special relationship due to the unusual
nature of the employer/independent contractor relationship in
A.H., which involved a minor in need of protection in a job he
had been performing regularly for more than a year and a work
environment under the employer’s control. However, the facts
of A.H. are not typical of employer/independent contractor
relationships generally, and we decline to accept the doctrine
that all employer/independent contractor arrangements should
categorically be recognized as “special relationships” in
Virginia law.
In the alternative, Brown asserts that the facts alleged
in her amended complaint warrant finding a special relationship
based on the unique circumstances of this case. However,
unlike the thirteen-year-old newspaper carrier who had been
delivering papers on a route assigned by the publishing company
for more than a year, the decedent in this case was an adult
who had been hired for one assignment. The employer in A.H.
was required by law to restrict the times during which the
carrier could deliver newspapers, whereas there is no such
restriction placed on process servers. See 255 Va. at 219, 495
10
S.E.2d at 484. Moreover, the decedent owned a private
investigation business. Although Brown alleges that Jacobs
initially gave the decedent specific instructions on when and
how to serve Abid, he was free to personally serve Abid in the
way he saw fit. Indeed, at the time service of process was
attempted, Jacobs had instructed him to serve Abid “however and
whenever” he could. There is no reason to presume that the
decedent would be less experienced in serving process and
handling tense situations than an attorney. Unlike the young
newspaper carrier, the decedent did not require supervision,
nor was he inherently vulnerable. The imbalance of knowledge
and exercise of control factors compelling the conclusion that
a special relationship existed in A.H. are not present in the
instant case.
Because Brown failed to allege facts sufficient to
establish a special relationship in the amended complaint, she
failed to establish the “threshold requirement” necessary to
show that Jacobs had a duty to warn the decedent. For this
reason, the circuit court did not err in sustaining Jacobs’
demurrer to the amended complaint. Thus, we need not reach
Brown’s second and third assignments of error relating to
foreseeability. See Peterson, 286 Va. at 357, 749 S.E.2d at
311; see also Taboada v. Daly Seven, Inc., 271 Va. 313, 323,
626 S.E.2d 428, 432 (2006) (“[B]efore an exception to the
11
general rule can apply so as to impose a potential duty[,]
. . . the facts must establish that there is a special
relationship . . . .”) (citation and internal quotation marks
omitted).
Finally, Brown argues that the circuit court erred in
denying her motion for reconsideration and motion for leave to
amend. She maintains that she had not yet amended her claim
against Jacobs. Brown claims that the allegations in her
proffered second amended complaint “amplif[ied] and
strengthen[ed] the allegations against Jacobs.” According to
Brown, allowing her to amend her amended complaint would not
have prejudiced Jacobs because “there was no trial calendar”
and “Jacobs had engaged in no discovery.”
Jacobs replies that the circuit court did not abuse its
discretion in denying Brown’s motions. He points out that the
circuit court granted Brown leave to file her amended complaint
more than one year after she originally filed her lawsuit and
after he was deposed. Jacobs further maintains that the court
considered Brown’s additional proffered facts before sustaining
his demurrer. Finally, Jacobs contends that Brown did not
assert any new legal arguments, legal theories or previously
undiscovered facts which would justify the court in granting
her motion for reconsideration.
12
“The decision whether to grant leave to amend a complaint
rests within the sound discretion of the trial court.” Kimble
v. Carey, 279 Va. 652, 662, 691 S.E.2d 790, 795 (2010). Rule
1:8 states in relevant part: “No amendments shall be made to
any pleading after it is filed save by leave of court. Leave
to amend shall be liberally granted in furtherance of the ends
of justice.”
In this case, we cannot say that the circuit court abused
its discretion in denying Brown leave to amend her amended
complaint. The court had already given Brown leave to amend
her original complaint more than one year after she initiated
her lawsuit. When Brown asked for leave to amend again and to
file her second amended complaint, almost two years had passed
since her lawsuit had been filed.
Moreover, the circuit court considered the additional
allegations in Brown’s proffered second amended complaint
before denying her motion for leave to amend, and it found that
her allegations were “insufficient as a matter of law to
establish that a special relationship existed between Jacobs
and [the] decedent.” We hold that the circuit court did not
err in doing so.
Conclusion
We hold that the circuit court did not err in sustaining
Jacobs’ demurrer to Brown’s amended complaint because Brown
13
failed to allege facts sufficient to establish that a special
relationship existed between Jacobs and the decedent. We also
hold that the court did not abuse its discretion in denying
Brown’s motion for leave to amend her amended complaint, and it
did not err in denying Brown’s motion for reconsideration.
Accordingly, we will affirm the judgment of the circuit court.
Affirmed.
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