Gabrielle Bradford v. Jared Crain ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Athey, Chaney and Lorish
Argued at Richmond, Virginia
GABRIELLE BRADFORD
MEMORANDUM OPINION* BY
v. Record No. 0386-22-2 JUDGE LISA M. LORISH
MARCH 14, 2023
JARED CRAIN
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Rondelle D. Herman, Judge
Andrew T. Bodoh (Thomas H. Roberts & Associates, P.C., on
briefs), for appellant.
David P. Corrigan (M. Scott Fisher, Jr.; Harman, Claytor,
Corrigan & Wellman, on brief), for appellee.
Several police officers arrived at the home of Gabrielle Bradford, appellant, to execute an
arrest warrant for Ajay Ayseli. The police believed Ayseli, wanted for felony carjacking, would be
at Bradford’s home to visit his and Bradford’s son. Things went awry quickly. In the span of a few
minutes, Ayseli barred himself inside the house, held Bradford hostage, and stabbed her more than
thirty times. Officers shot Ayseli through a glass door during the attack, ultimately killing him and
inadvertently shooting Bradford in the process. Less than a minute before Ayseli began stabbing
Bradford, Officer Jared Crain, appellee, yelled at her to “Get him out, right now” and to “Open that
door! Now!” Bradford alleges that these commands created a special relationship requiring Crain
to protect her from Ayseli and that he was grossly negligent in failing to do so. Assuming a special
*
This opinion is not designated for publication. See Code § 17.1-413.
relationship existed, the allegations in the amended complaint preclude a finding of gross
negligence on Crain’s part, so we affirm the trial court’s decision to grant the demurrer.
BACKGROUND
We consider the facts as stated in the amended complaint, “along with those reasonably and
fairly implied from them, in the light most favorable to the plaintiff.” Doe v. Zwelling, 270 Va. 594,
597 (2005). “Our recitation of the facts, of course, restates only factual allegations that, even if
plausibly pleaded, are as yet wholly untested by the adversarial process.” A.H. v. Church of God
in Christ, Inc., 297 Va. 604, 614 (2019).
Believing Ayseli may be present at Bradford’s home to visit his and Bradford’s son, five
police officers—including Crain, a City of Richmond officer—came to that house to execute a
warrant for Ayseli’s arrest. The warrant was for a felony carjacking that took place roughly one
week earlier. While Crain knew Ayseli was wanted by the police and was believed to have
brandished a knife during the carjacking, Bradford knew nothing about the outstanding warrant.
Crain also knew, or should have known, that Ayseli had a history of domestic violence.
When the officers arrived, Ayseli was in the driveway of Bradford’s house but then
immediately fled inside. The officers rushed toward the house. Ayseli physically resisted as
they tried to push into the house through the front door. Bradford, who was next to Ayseli
behind the front door, “insisted that [Ayseli] cease his resistance, and either allow the officers
inside, or otherwise meet with the officers outside.” She sent her son upstairs and attempted to
physically force Ayseli to open the door.
Crain shouted to the other officers, “Go around back, get around back!” He led two
officers to the backyard, then quickly returned to the front yard. From that vantage point, he saw
Bradford through a window and yelled at her, “Get him out, right now!” Four seconds later, he
again yelled at Bradford, “Open that door! Now!” When Crain issued his orders to Bradford, he
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did not know whether Ayseli was armed, nor did he know if any officers could protect Bradford
and her son.
Bradford understood Crain’s commands as a directive to her to assist the officers with
seizing Ayseli. Thus, rather than seeking safety, Bradford tried to tell the police to come around
to the back door of the residence, where she planned to open the door for them.
Three seconds after telling Bradford, “Open that door! Now!,” Crain saw Ayseli through
the window and pointed his gun at him, yelling, “Show me your hands! Now!” Eight seconds
later, Crain saw Ayseli grab Bradford by the back of her hair and pull her further into the house.
Crain yelled to the other officers, “He’s got her hostage! He’s holding her!” He reiterated,
“He’s holding her hostage” a few seconds later.
Six seconds after that—in total, 26 seconds after Crain’s first command to Bradford—
officers heard Bradford’s screams and saw Ayseli “viciously attacking” her with a knife. The
two officers behind the house tried to enter but could not break down the glass back door. They
then began shooting at Ayseli to stop the attack. One of the rounds struck Bradford, and the
others struck and killed Ayseli. The officers in front of the house (including Crain) successfully
broke down the front door “about twenty-five seconds after Crain’s call of ‘He’s got her hostage!
He’s holding her!’” Bradford, suffering from more than 30 stab wounds as well as the gunshot
wound, was taken to the hospital in critical condition but survived.
Bradford filed a gross negligence claim against Crain. Her amended complaint alleged
that Crain’s “directives created a special relationship between Crain and Ms. Bradford that gave
Ms. Bradford the right to Crain’s protection, or the protection of his fellow officers in his stead,
as she worked to comply with his directive.” She also argued that “[a] reasonable officer in
Crain’s position would have been aware that . . . attempting to engage Ms. Bradford, likely
within Mr. Ayseli’s hearing, to cooperate further in the efforts to arrest Mr. Ayseli, would put her
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at increased risk of injury or death at the hands of Mr. Ayseli.” Crain filed a demurrer to the
amended complaint, arguing that 1) Bradford failed to establish a special relationship,
2) Ayseli’s criminal acts were not reasonably foreseeable to Crain, and 3) the facts alleged failed
to give rise to gross negligence because Crain exercised some degree of care.
The trial court sustained the demurrer, concluding that no special relationship existed and
that, as a result, the amended complaint failed to state a claim for gross negligence. The court
also denied Bradford’s request to file a second amended complaint. Bradford appeals.
ANALYSIS
A demurrer is a form of pleading that “tests the legal sufficiency of the facts properly
alleged [in a complaint], and the inferences fairly drawn therefrom.” Terry v. Irish Fleet, Inc.,
296 Va. 129, 135 (2018). We review “a circuit court’s decision sustaining a demurrer de novo.”
Ayers v. Brooke Rd., LLC, 300 Va. 315, 321 (2021). We “accept as true all factual allegations in
the complaint” as well as “unstated inferences to the extent that they are reasonable.” Patterson
v. City of Danville, __ Va. __, __ (July 7, 2022) (quoting Doe ex rel. Doe v. Baker, 299 Va. 628,
641 (2021)). “[W]e give them no weight to the extent that they are unreasonable,” nor do we
“accept the veracity of conclusions of law camouflaged as factual allegations or inferences.” Id.(quoting Doe ex rel. Doe, 299 Va. at 641). “‘[W]hether a legal duty in tort exists is a pure
question of law’ to be reviewed de novo.” Shoemaker v. Funkhouser, 299 Va. 471, 478 (2021)
(alteration in original) (quoting Burns v. Gagnon, 283 Va. 657, 668 (2012)).
“To plead a cause of action for negligence, a plaintiff must allege a legal duty, a violation
of that duty and resulting damage.” Terry, 296 Va. at 135. Bradford alleges that Crain had a
duty to protect her from Ayseli’s criminal assault and her resulting injuries.
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A.
“As a general rule, there is no duty to warn or protect against acts of criminal assault by
third parties” because such an assault is usually not reasonably foreseeable. Id. There are two
exceptions “to this general rule of non-liability.” A.H., 297 Va. at 619. The first is when a
defendant “expressly assumes a duty to protect another from criminal harm.” Id. The second—
relied upon by Bradford—is for “dut[ies] not assumed but imposed” based on the existence of a
special relationship. Id.
Virginia recognizes a common law duty to warn of or protect someone from harm by a
third person when a special relationship exists “(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.” Id. (quoting
Brown v. Jacobs, 289 Va. 209, 215 (2015)). “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.”1 Brown, 289 Va. at 215 (quoting Yuzefovsky v. St. John’s Wood Apts., 261 Va.
97, 107 (2001)).
Bradford argues that a law enforcement officer can have a special relationship with a
person that creates a duty to protect that person from harm by a third party. Because we have not
recognized a special relationship as a matter of law between law enforcement officers and
citizens, she argues such a duty was created here based on the particular factual circumstances
pleaded in her amended complaint, citing Burdette v. Marks, 244 Va. 309 (1992).
The mere existence of a special relationship, however, is not enough. A duty of care
arises only where the “particular circumstances of that special relationship” make the danger of
1
The categories of special relationships recognized in Virginia as a matter of law include
“common carrier/passenger; innkeeper/guest; employer/employee; business owner/invitee; and
hospital/patient.” Brown, 289 Va. at 215.
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harm from a third party foreseeable. Yuzefovsky, 261 Va. at 107. Certain special relationships—
innkeeper-guest, employer-employee, common carrier-passenger—require only that the “danger
of a third party criminal act is known or reasonably foreseeable.” Terry, 296 Va. at 136 n.3
(emphasis added). Other relationships—business owner-invitee, landlord-tenant—“impose a
duty to warn of third party criminal acts only when there was an imminent probability of injury
from a third party act.” Id. (emphasis added).
The trial court found Bradford failed to allege a special relationship doctrine theory of
liability in her amended complaint, relying on the fact that Crain was “not responding to a
service call or any cry for help from the Plaintiff” and was present solely to serve “an
outstanding warrant on Ayesli.” In this way, the court determined this case was distinguishable
from Burdette, where the officer responded to render assistance after a motor vehicle accident.
The court also observed that Bradford “does not fall under any category of recognized special
relationships such as employer-employee and business owner and invitee.”
Bradford contends that the trial court erred and the special relationship was created when
Crain gave her orders to assist in the arrest, telling her, “Get him out, right now!” and, “Open
that door! Now!” and thereby “deputizing” her. Bradford argues she had to assist Crain rather
than seek safety because Code § 18.2-463 makes it a criminal offense to “refuse or neglect to
assist” a law enforcement officer after such a demand.
We observe that other states have established specific tests for when a special
relationship exists between a police officer and a victim and that those tests often rely, in part, on
the officer’s assumption of a duty to protect.2 The Nebraska Supreme Court agrees that a special
2
See, e.g., Ashburn v. Anne Arundel Cnty., 510 A.2d 1078, 1085 (Md. 1986) (“In order
for a special relationship between police officer and victim to be found, it must be shown that the
local government or the police officer affirmatively acted to protect the specific victim . . . ,
thereby inducing the victim’s reliance upon the police protection.”); Melendez v. City of
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relationship between officers and citizens exists “where the police have expressly promised to
protect specific individuals from precise harm,” and also categorically finds such a relationship
“where individuals who have aided law enforcement as informers or witnesses are to be
protected.” Bartunek v. State, 666 N.W.2d 435, 440 (Neb. 2003) (quoting Brandon v. Cnty. of
Richardson, 566 N.W.2d 776, 780 (Neb. 1997)). With respect to this latter category, “a special
relationship undoubtedly exists where an individual assists law enforcement officials in the
performance of their duties.” Id. (quoting Brandon, 566 N.W.2d at 780).
Because we conclude below that Bradford failed to adequately allege gross negligence,
we will assume without deciding that she sufficiently pled the existence of a special relationship
based on Crain’s directive to assist him in the arrest, that this relationship created a duty to
protect Bradford from reasonably foreseeable criminal acts, and that Ayseli’s resort to violence
was reasonably foreseeable to Crain.3
B.
Putting aside the question of duty, a plaintiff must allege gross negligence to overcome
sovereign immunity when suing a public official acting in their official capacity. See Cromartie
Philadelphia, 466 A.2d 1060, 1064 (Pa. 1983) (“[T]he individual claiming a ‘special
relationship’ must demonstrate that the police were: 1) aware of the individual’s particular
situation or unique status, 2) had knowledge of the potential for the particular harm which the
individual suffered, and 3) voluntarily assumed, in light of that knowledge, to protect the
individual from the precise harm which was occasioned.”); Cuffy v. City of New York, 505
N.E.2d 937, 940 (N.Y. 1987) (requiring “(1) an assumption by the municipality, through
promises or actions, of an affirmative duty to act on behalf of the party who was injured;
(2) knowledge on the part of the [officer] that inaction could lead to harm; (3) some form of
direct contact between the [officer] and the injured party; and (4) that party’s justifiable reliance
on the [officer’s] affirmative undertaking”). The New York test has been adopted by at least
Ohio, Georgia, and Michigan.
3
The doctrine of judicial restraint dictates that we decide cases “on the best and
narrowest grounds available.” McGhee v. Commonwealth, 280 Va. 620, 626 n.4 (2010) (quoting
Air Courier Conf. v. Am. Postal Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J.,
concurring)).
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v. Billings, 298 Va. 284, 297 (2020). Gross negligence “requires a degree of negligence that
would shock fair-minded persons.” Elliott v. Carter, 292 Va. 618, 622 (2016) (quoting Cowan v.
Hospice Support Care, Inc., 268 Va. 482, 487 (2004)). By definition, it is “the absence of slight
diligence or the want of even scant care.” Cromartie, 298 Va. at 297. “Ordinarily, the question
whether gross negligence has been established is a matter of fact to be decided by a jury.” Burns
v. Gagnon, 283 Va. 657, 678 (2012).
But “[b]ecause ‘the standard for gross negligence [in Virginia] is one of indifference, not
inadequacy,’ a claim for gross negligence must fail as a matter of law when the evidence shows
that the defendants exercised some degree of care.” Elliott, 292 Va. at 622 (second alteration in
original) (quoting Kuykendall v. Young Life, 261 Fed. Appx. 480, 491 (4th Cir. 2008)); see also
Frazier v. City of Norfolk, 234 Va. 388, 393 (1987) (“when persons of reasonable minds could
not differ upon the conclusion that such negligence has not been established, it is the court’s duty
to so rule”).
The Supreme Court recently affirmed the grant of a demurrer after finding gross
negligence was insufficiently pled. Patterson, __ Va. at __. There, the complaint alleged that a
doctor for a jail failed to properly diagnose and treat the decedent, but also listed several tests
and treatments the doctor had performed. Id. at __. The Court found that the doctor’s “multiple
efforts to treat [the decedent]—whether or not negligently performed—demonstrate that [the
doctor] was exercising ‘some degree of care’ in his capacity as a physician, and thus, ‘the claim
for gross negligence must fail as a matter of law.’” Id. at __ (quoting Elliott, 292 Va. at 622).
Likewise, in Elliott, the undisputed evidence that the defendant “attempt[ed] to render
assistance” to the drowning child was dispositive. 292 Va. at 623.
We have assumed, for the purpose of argument, that Crain incurred a duty to protect
Bradford when he ordered her to assist law enforcement in getting Ayseli out of the house and
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that his knowledge of Ayseli’s violent history made the risk of injury to Bradford reasonably
foreseeable. By the time Crain issued the directive to Bradford, Crain had ordered other officers
to “Go around back, get around back,” leading those officers “through a gate into the back yard,
putting themselves in view of the rear door.” It was after this that Crain returned to the front
yard, saw Bradford through the window, and “yelled at her, ‘Get him out, right now!’” Four
seconds later, he yelled again, “Open that door! Now!” Three seconds after that, Crain pointed
his gun at Ayseli through the window, yelling, “Show me your hands! Now!” And only
“[e]leven seconds” after his last directive to Bradford, Crain saw Ayseli “grab Bradford by the
back of the hair and pull her deeper into the house.” He immediately yelled to the other officers,
“He’s got her hostage! He’s holding her,” which he repeated five seconds later.
Bradford alleges that it was 26 seconds after Crain commanded her to participate in the
arrest of Ayseli that she was “heard screaming from the house” and “officers attempted to force
entry.” The two officers in the backyard came “up onto the porch when Crain called out about
the hostage situation” and tried unsuccessfully to “break through the glass” before they “fired
two rounds” to “try to stop the attack.” Ultimately, they “pushed through the remaining glass
and fired additional rounds.” While this was going on, Crain and another officer tried “to break
open the front door.”
Considering the facts alleged in the complaint, Crain plainly took some level of care to
protect Bradford and as a matter of law cannot be said to have been indifferent to her safety.4 As
soon as Ayseli entered the house, Crain sent officers around the back of the house, a vantage
point from which those officers managed to witness Ayseli’s attack and perhaps ultimately save
Bradford’s life by shooting and killing Ayseli. Crain personally attempted to subdue Ayseli
4
The amended complaint does not specify what actions Crain should have taken to
protect Bradford other than not issuing the directive to her in the first place.
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before he could cause injury by pointing his gun at him through the open window. And he tried
to break down the front door to rescue Bradford once Ayseli’s attack began. Where there is
evidence of “some degree of care,” the “claim for gross negligence must fail as a matter of law,”
even if a defendant’s “efforts may have been inadequate or ineffectual.” Elliott, 292 Va. at
622-23; see also Patterson, __ Va. at __.5 For this reason, the trial court was correct in
concluding that the complaint failed to state a claim of gross negligence.6
C.
Bradford also assigned error to the court’s decision to reject her second amended
complaint. “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 (2010). Our Supreme Court
“has affirmed the circuit court’s discretion to dismiss [a] claim with prejudice when amendment
or reconsideration ‘would accomplish nothing more than provide an opportunity for reargument
of the question already decided.’” Primov v. Serco, Inc., 296 Va. 59, 70 (2018) (quoting Hechler
Chevrolet, Inc. v. General Motors Corp., 230 Va. 396, 403 (1985)).
5
Under a “special relationship” theory of liability, Bradford’s duty of care was ongoing
after it was created. Therefore we disagree with our dissenting colleague’s conclusion that the
actions taken by Bradford and his fellow officers after the directive was issued are irrelevant.
Section 437 from the Restatement (Second) of Torts addresses causation, not the applicable
degree of negligence, and thus, it would only be relevant if the amended complaint had
adequately alleged a claim for gross negligence.
6
The trial court found that Bradford failed to state a claim for gross negligence because
she did not establish that Crain had a special relationship duty to protect her, and thus could not
satisfy the duty element of her negligence claim. Crain alternatively argued in his demurrer that
Bradford failed to plead gross negligence. In deciding this appeal on Bradford’s failure to plead
the applicable degree of negligence, we follow the long-standing principle that “we are not
‘limited to the grounds offered by the trial court in support of its decision[;]’ rather, we are
‘entitled to affirm the court’s judgment on alternate grounds, if such grounds are apparent from
the record.’” Taylor v. Northam, 300 Va. 230, 251 (2021) (alteration in original) (quoting Perry
v. Commonwealth, 280 Va. 572, 582 (2010)).
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Bradford argues that the proposed second amended complaint would address “what
Officer Crain knew at the time and how he knew it” and bolster the “analysis of the degree of
danger that existed for Ms. Bradford before Officer Crain’s directives.” None of the proposed
amendments or attachments to the complaint diminish or change the existing complaint’s
allegations of slight care. Thus, “the proffered amendments are legally futile,” AGCS Marine
Ins. Co. v. Arlington Cnty., 293 Va. 469, 497 (2017), and any error in the court’s decision to
deny the motion to amend is harmless, see Code § 8.01-678.
CONCLUSION
For these reasons, we affirm the trial court’s judgment.
Affirmed.
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Chaney, J., dissenting.
The circuit court erred in sustaining Crain’s demurrer to Bradford’s amended complaint
because—on demurrer—Bradford stated a claim of gross negligence under a special relationship
theory of liability. The circuit court also erred in dismissing Bradford’s suit with prejudice and
denying Bradford’s motion for leave to amend her amended complaint with her proffered second
amended complaint. Because I disagree with the majority’s opinion affirming the circuit court’s
orders (i) sustaining Crain’s demurrer, (ii) rejecting Bradford’s second amended complaint, and
(iii) dismissing Bradford’s suit with prejudice, I respectfully dissent.
I. THE CIRCUIT COURT ERRONEOUSLY SUSTAINED CRAIN’S DEMURRER
A. Standard of Review
“Because this case was decided on demurrer, we take as true all material facts properly
pleaded in the motion for judgment and all inferences properly drawn from those facts.” See
Koffman v. Garnett, 265 Va. 12, 14 (2003) (citing Burns v. Bd. of Supervisors of Fairfax Cnty.,
218 Va. 625, 627 (1977)). This Court also considers documents attached to and incorporated
into the complaint to amplify the factual allegations. See Hale v. Town of Warrenton, 293 Va.
366, 366 (2017) (quoting EMAC, L.L.C. v. County of Hanover, 291 Va. 13, 21 (2016)). “No
grounds other than those stated specifically in the demurrer shall be considered by the court.”
Code § 8.01-273. “On appeal, a plaintiff attacking a trial court’s judgment sustaining a demurrer
need show only that the court erred, not that the plaintiff would have prevailed on the merits of
the case.” Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 713 (2006) (citing Thompson v.
Skate Am., Inc., 261 Va. 121, 128 (2001)).
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B. Crain’s Alleged Special Relationship with Bradford
The circuit court granted Crain’s demurrer upon finding that Bradford’s amended complaint
failed to allege a special relationship theory of liability. The circuit court concluded that the
existence of a special relationship was not sufficiently pleaded because Bradford’s amended
complaint alleged that Crain was present only to serve an arrest warrant on Ayseli and the
amended complaint does not allege that Crain was responding to a service call or any cry for
help from Bradford. The majority’s opinion assumes without deciding that Bradford’s amended
complaint sufficiently pleaded the existence of a special relationship, and the majority affirms the
circuit court’s order sustaining Crain’s demurrer based on the majority’s conclusion that Bradford
failed to sufficiently plead gross negligence. I would hold that Bradford sufficiently pleaded the
existence of a special relationship between Crain and Bradford. As explained below, I disagree with
the majority’s conclusion that the circuit court’s order sustaining the demurrer can be affirmed on
the alternative ground that Bradford did not sufficiently plead gross negligence.
Taking the allegations in the amended complaint as true and considering the allegations in
aid of the pleading, Crain created a special relationship with Bradford when he commanded her to
assist the police in arresting Ayseli. At the point when Crain essentially deputized Bradford, Crain
had a duty of care towards Bradford. Crain’s affirmative act commanding that Bradford assist in the
arrest—together with the foreseeability that his commands would put Bradford in harm’s way—
created a factual circumstance that supports the asserted special relationship and Crain’s consequent
duty to protect Bradford. See Burdette v. Marks, 244 Va. 309, 312 (1992) (recognizing that whether
a special relationship between an officer and an individual exists depends on whether the officer
reasonably could have foreseen that he would be expected to take affirmative action to protect the
individual from harm). As the majority acknowledges, “a special relationship undoubtedly exists
where an individual assists law enforcement officials in the performance of their duties.”
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Bartunek v. State, 666 N.W.2d 435, 440 (Neb. 2003) (quoting Brandon v. Cnty. of Richardson,
566 N.W.2d 776, 780 (Neb. 1997)).
C. Crain’s Alleged Gross Negligence
I would also hold that Bradford sufficiently alleged that Crain breached his duty to protect
her and that Crain acted with gross negligence when he deputized Bradford to assist police with the
apprehension of Ayseli. “An act or an omission may be negligent if the actor realizes or should
realize that it involves an unreasonable risk of harm to another through the conduct of . . . a third
person which is intended to cause harm, even though such conduct is criminal.” Restatement
(Second) of Torts § 302B (1965). “[G]ross negligence [is] ‘that degree of negligence which shows
indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect
of the safety of [another]. It must be such a degree of negligence as would shock fair minded
[people] although something less than willful recklessness.’” Koffman, 265 Va. at 15 (third and
fourth alterations in original) (quoting Ferguson v. Ferguson, 212 Va. 86, 92 (1971)). “Gross
negligence [is] ‘a heedless and palpable violation of legal duty respecting the rights of others which
amounts to the absence of slight diligence, or the want of even scant care.’” Patterson v. City of
Danville, __ Va. __, __ (July 7, 2022) (quoting Commonwealth v. Giddens, 295 Va. 607, 613
(2018)). “Whether certain actions constitute gross negligence is generally a factual matter for
resolution by the jury and becomes a question of law only when reasonable people cannot differ.”
Koffman, 265 Va. at 15 (citing Griffin v. Shively, 227 Va. 317, 320 (1984)).
Taking all of the alleged facts in Bradford’s amended complaint as true, and granting
Bradford all reasonable inferences from those facts, Bradford has sufficiently shown that Crain
acted with gross negligence. As alleged in Bradford’s amended complaint, paragraph seven, when
attempting to apprehend Ayseli, Crain knew that (1) Ayseli was wanted for a recent felony
carjacking, (2) Ayseli was believed to have brandished a knife in the carjacking, and (3) Ayseli had
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a history of domestic violence. As further alleged in paragraph 31, Crain knew that Ayseli had
previously used physical force to prevent the officers from entering Ms. Bradford’s residence. As
alleged in paragraph 34, when Crain commanded Bradford to assist in Ayseli’s arrest, he knew that
he and other police officers were not in position to protect Bradford from the foreseeable result that
Ayseli would harm Bradford in violently opposing her efforts to help the police. As further alleged
in paragraph 31(f), when Crain loudly called for other officers to go to the back of the house, he
knew that Ayseli would recognize that he had no avenue of escape. As alleged in paragraph 34, at
the point when Crain commanded Bradford to “Get him out, right now” and to “Open that door!
Now!,” Crain was driven by his zealous desire to execute a standing arrest warrant. As further
alleged in paragraphs 32 and 34, Crain disregarded the high likelihood that Ayseli would harm
Bradford when she complied with Crain’s commands and thereby—from Ayseli’s perspective—
was acting at the direction of police. A reasonable inference from the foregoing allegations is that
Crain knew that Ayseli would harm Bradford for assisting the police because Ayseli had previously
used force to repel the police’s attempt to execute the arrest warrant. Thus, the admitted factual
allegations in Bradford’s amended complaint and the reasonable inferences from those allegations
prove that Crain’s command to Bradford to assist the police was driven by Crain’s zealous desire to
execute an arrest warrant against Ayseli and was issued without any regard for Bradford’s safety,
without exercising even slight care for Bradford. Crain’s utter disregard for Bradford’s safety
constitutes gross negligence. Crain’s gross negligence proximately caused Bradford’s horrific
injuries by inducing Ayseli to brutally attack her.
That Ayseli’s attack on Bradford constituted criminal misconduct does not diminish Crain’s
culpability in view of Crain’s alleged knowledge of Ayseli’s recent violent behavior. See
Restatement (Second) of Torts § 302B, cmt. e (1965). As stated in the Restatement (Second) of
Torts § 302B, comment e:
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[An] actor . . . is required to anticipate and guard against the . . .
criminal misconduct of others . . . where the actor’s own affirmative
act has created or exposed the other to a recognizable high degree of
risk of harm through such misconduct, which a reasonable man
would take into account.
Knowing the resulting high degree of risk of harm to Bradford, and knowing that under the
circumstances he could not guard against Ayseli’s violent response, Crain was required to refrain
from commanding Bradford to act as an agent of the police by assisting police with Ayseli’s arrest.
Contrary to the majority’s opinion, the factual allegations in Bradford’s amended
complaint—considered in aid of the pleading—do not allege that Crain exercised some degree of
care when he commanded Bradford to help the police arrest Ayseli, a known violent fugitive.7 The
majority opines that the amended complaint’s allegations that Crain tried to subdue Ayseli and
rescue Bradford after the attack began show that Crain exercised at least slight care. But the
relevant question is whether the amended complaint alleges that Bradford exercised some degree of
care at the point when his duty of care was allegedly breached, i.e., at the point when he
commanded Bradford to assist the police in arresting Ayseli. There are no factual allegations in the
amended complaint that show Crain’s exercise of any care towards Bradford at the point when he
allegedly breached his duty of care. See Restatement (Second) of Torts, supra, § 437. As stated in
the Restatement (Second) of Torts § 437:
If the actor’s negligent conduct is a substantial factor in bringing
about harm to another, the fact that after the risk has been created by
his negligence the actor has exercised reasonable care to prevent it
7
The majority observes that Bradford’s amended complaint does not allege what actions
Crain should have taken other than not issuing the command to Bradford that made her an agent
of the police. But Bradford was under no obligation to plead a standard of care for Crain. On
demurrer, Bradford satisfied her obligation to plead gross negligence by alleging that Crain—
without any care for the increased risk of harm to her that would foreseeably result—commanded
Bradford’s assistance under circumstances that proximately caused her harm. See Koffman, 265
Va. at 16 (reversing trial court decision to sustain a demurrer on gross negligence where
complaint alleged that imprudent actions taken in utter disregard for the victim’s safety raised a
factual question on which reasonable persons could disagree).
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from taking effect in harm does not prevent him from being liable for
the harm.
The officers’ subsequent efforts to terminate Ayseli’s horrific attack on Bradford do not prevent
Crain from being liable from having brought about the attack.8
The majority further opines that Crain also exercised some care towards Bradford when he
directed other officers to go around to the back of the house, in view of the rear door. But the
amended complaint alleges that Crain issued this directive in an effort to arrest Ayseli, with no
regard for Bradford’s safety. The officers surrounding the house were alleged to be posted at a safe
distance in order to prevent Ayseli’s escape. No allegations or inferences therefrom support a
finding that the police were posted to assist Bradford. Crain’s directive that officers surround the
house was alleged to serve Crain’s purpose of apprehending Ayseli, not to protect Bradford. On
demurrer, this Court cannot supply a conflicting inference that Crain ordered police to surround
the house as an exercise of care for Bradford. Moreover, Crain’s purported intent to exercise some
slight degree of care for Bradford when he directed officers to surround the house is neither alleged
by Bradford nor inferable from Bradford’s other allegations. The mere presence of police around
Bradford’s house does not imply the exercise of slight care and making such an inference would
absurdly defeat allegations of gross negligence against police in all cases. See Green v. Ingram, 269
Va. 281, 293 (2005) (holding that trial court erred in striking allegations of gross negligence against
a police officer). Thus, taking the allegations in the amended complaint as true and considering the
allegations in aid of the pleading, Crain simultaneously (i) created a special relationship with
8
The majority notes that Crain had a continuing duty to mitigate harm to Bradford after
issuing the deputizing command that proximately caused Ayseli to harm Bradford. Even if Crain
were to satisfy this continuing duty of care by subsequent efforts to protect Bradford, those
subsequent efforts do not negate Crain’s liability for the utter lack of care exercised when Crain
commanded Bradford to assist in Crain’s effort to arrest Ayseli.
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Bradford and (ii) breached the consequent duty of care towards Bradford with gross negligence by
completely neglecting Bradford’s safety at the point when he deputized her.
The cases cited by the majority do not support the majority’s conclusion that gross
negligence was insufficiently pleaded in Bradford’s amended complaint. In Patterson, the personal
representative of Patterson’s estate sued the physician who treated Patterson while he was an
inmate in the Danville Adult Detention Center. __ Va. at __. The complaint alleged facts
proving that the doctor had made extensive efforts to diagnose and treat Patterson, but because
the doctor had failed to diagnose and treat the illness that resulted in Patterson’s death, the
complaint further alleged that the doctor “was grossly negligent by failing to properly diagnose
and treat Patterson.” Id. at __. Our Supreme Court affirmed the circuit court’s holding that the
complaint filed by Patterson’s estate failed to state a prima facie case of gross negligence.
Patterson stands for the proposition that, as a matter of law, a doctor’s alleged negligence in the
course of caring for a patient is not gross negligence. The holding in Patterson is inapposite
here because Bradford does not allege that Crain was negligent in the course of caring for
Bradford. Rather, Bradford alleges that Crain was grossly negligent when he simultaneously
created and breached a duty of care towards Bradford by deputizing her while completely
neglecting her safety.
In Elliott v. Carter, 292 Va. 618, 621 (2016), another case cited by the majority, our
Supreme Court affirmed the circuit court’s order granting summary judgment in a wrongful
death suit that alleged gross negligence by Trevor Carter, the Boy Scout peer leader of Caleb
Smith’s troop, after Caleb drowned on a Scout camping trip. In Elliott, the evidence showed that
Carter, in the course of supervising and caring for Caleb, was aware that Caleb could not swim
but permitted Caleb to walk on a sandbank surrounded by water. See id. at 620. When Caleb
accidentally fell off the sandbank into the water, Carter tried, but failed to save Caleb. Id. at
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620-21. The Supreme Court held that because “the undisputed material facts support the
conclusion that Carter exercised some degree of care in supervising Caleb[,] his conduct did not
constitute gross negligence.” Id. at 623. The holding in Elliott is also inapposite here because,
like Patterson, Elliott stands for the proposition that a complaint that alleges negligence in the
course of providing care fails to state a case of gross negligence. Bradford’s amended complaint
does not allege that Crain was negligent in the course of caring for Bradford. Bradford alleges
that Crain, in the course of zealously attempting to arrest Ayseli, gave no consideration
whatsoever to Bradford’s safety when he deputized her while in no position to protect her from
Ayseli’s foreseeable violent response.
II. THE CIRCUIT COURT ERRED IN REJECTING BRADFORD’S SECOND AMENDED
COMPLAINT AND DISMISSING BRADFORD’S CASE WITH PREJUDICE
The circuit court abused its discretion by dismissing Bradford’s suit with prejudice and
denying Bradford’s motion for leave to amend her amended complaint with the proffered second
amended complaint. “On appeal, review of the trial court’s decision to grant or deny a motion to
amend is limited to the question whether the trial judge abused his discretion.” AGCS Marine
Ins. Co. v. Arlington Cnty., 293 Va. 469, 487 (2017) (quoting Lucas v. Woody, 287 Va. 354, 363
(2014) (citation omitted)). As explained in AGCS Marine Ins. Co.:
After sustaining a demurrer, a court should grant a motion for
leave to amend except when, for example, the proffered
amendments are legally futile, when the amendment is untimely
under an order granting leave to amend by a certain deadline or
fails to satisfy other conditions in the scheduling order, when there
is no proffer or description of the new allegations, when
amendment would be unduly prejudicial to the responding party, or
when the amending party has engaged in improper litigation
tactics.
Id. (citing Rule 1:8; Mortarino v. Consultant Eng’g Servs., Inc., 251 Va. 289, 295-96 (1996)
(relying primarily on the lack of prejudice to find that the trial court abused its discretion in
denying leave to amend where proffered amendments were not legally futile)).
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The majority opines that Bradford’s second amended complaint is legally futile because,
according to the majority, none of the proposed amendments or attachments diminish or change
the existing complaint’s allegations that Crain exercised slight care when he ordered Bradford to
assist the police efforts to apprehend Ayseli. However, as explained above, the alleged facts
relied on by the majority fail to prove, on demurrer, that Crain exercised even slight care. Also,
Bradford’s second amended complaint alleges sufficient facts to prove that a special relationship
had formed between Crain and Bradford when Crain commanded Bradford to assist police in
apprehending Ayseli. Bradford’s second amended complaint also alleges facts sufficient to show
that Crain’s command to Bradford to aid the police in apprehending Ayseli foreseeably and
proximately caused harm to Bradford. Consequently, Bradford’s motion for leave to amend the first
amended complaint with the second amended complaint was not legally futile.
Crain would not have been prejudiced by the second amended complaint because the
allegations in the second amended complaint merely reiterate the allegations in the amended
complaint supplemented with additional supporting facts. Thus, the second amended complaint
imposes no defensive burdens on Crain that were not already imposed by the amended
complaint. Additionally, because the amended complaint resulted from merely revising the
original complaint to expressly identify Crain as the officer who issued the deputizing directive
to Bradford, the second amended complaint is the first substantial amendment. Given the
absence of legal futility or prejudice to Bradford, the circuit court abused its discretion in
denying Bradford leave to file the second amended complaint. See AGCS Marine Ins. Co., 293
Va. at 487 (trial court abused its discretion in denying the motion for leave to amend where the
allegations and reasonable inferences from them support a viable theory of recovery); Rule 1:8
(leave to amend should be liberally granted in furtherance of the ends of justice).
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III. CONCLUSION
For the foregoing reasons, I would hold that the circuit court erred in (i) sustaining Crain’s
demurrer, (ii) dismissing Bradford’s complaint with prejudice, and (iii) denying Bradford’s motion
for leave to file the proffered second amended complaint. Therefore, I respectfully dissent.
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