CHARLES E. POSTON JUDGE
CHARLES E. POSTON JUDGE J. Edgar Demps, Esq.
Basnight, Kinser, Telfeyan, Leftwich & Nuckolls, P.C.
308 Cedar Lakes Drive, 2nd Floor
Chesapeake, VA 23322 Randolph C. DuVall, Esq.
Breeden, Salb, Beasley & DuVall, P.L.C.
555 E. Main St., Suite 1210
Norfolk, VA 23510 Counsel:
This action is before the Court upon the Defendants' demurrer to the complaint exhibited against them. Having considered the written submissions of counsel and the papers filed in this action, the court sustains the demurrer in part and overrules it in part.
The demurrer pleads six grounds upon which the Defendants assert the complaint to be insufficient as a matter of law. Each will be addressed in the order pled in the demurrer.
1. That there is no factual basis upon which Pamela Burnett is entitled to recover damages.
By order entered March 2, 2010, Pamela Burnett was removed as a party plaintiff in this action, thus rendering the Defendant's demurrer on this ground moot. The demurrer is, then, overruled on this basis because the grounds pled are moot.
2. That the allegations grouped under "III. Common Law Duty" fail to state a claim upon which relief can be granted.
In their memorandum in support of their demurrer, the Defendants conceded that as to this ground "the Demurrer is not well taken." Consequently, the demurrer is overruled as to this ground.
3. That a "special relationship" could not have existed between either Chelsi Burnett and the Defendants, or between Samaniego and the other Defendants.
Defendants address two "special relationships". First, Defendants contend that absent a "special relationship" between Plaintiff and Defendants, Defendants had no duty to protect Plaintiff from third parties. Second, Defendants contend that absent a "special relationship" between them and Samaniego, Defendants had no duty to exercise control over Samaniego's conduct outside the scope of her employment.
Although generally a person has no duty to protect another from the actions of a third person, the existence of a "special relationship" may give rise to a duty either to protect the other or to control the third person. Kellermann v. McDonough, 278 Va. 478, 492 (Va. 2009). In Virginia, the "special relationship" entails a distinct relationship, defined almost exclusively by example, with common law origins dating to the Middle Ages. This "special relationship" has been found to exist between common carriers and passengers, business proprietors and invitees, innkeepers and guests, and employers and employees (specifically the employer's potential duty to protect or warn his employee). Id. Although courts have noted that this list is not necessarily exclusive, it is a list that has nevertheless maintained its brevity.
Although the Court has grave concern over the validity of Plaintiff's "Fiduciary Duty" claim and whether the "special relationship" may apply to the facts alleged, taking as true all properly pleaded material facts and those which may be fairly inferred, the Court cannot now find that no "special relationship" could have existed as a matter of law. Accordingly, the demurrer is overruled as to this ground.
4. That the allegations grouped under "V. Negligent Hire" fail to state a claim upon which relief can be granted.
Defendants contend that the Complaint is devoid of facts sufficient for the Court to find that past behavior of Samaniego would have led a reasonable person to conclude that Samaniego was a potentially dangerous choice for assistant coach of a girls' basketball team.
The tort of negligent hire requires that the hired person had a propensity to cause injury to others. Majorana v. Crown Cent. Petroleum Corp., 260 Va. 521, 531 (Va. 2000). Such propensity must have been either known by the employer at the time of hiring, or must have been knowable with reasonable investigation. Southeast Apts. Mgmt., Inc. v. Jackman, 257 Va. 256, 260 (Va. 1999) (quoting Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 911 (Minn. 1983)).
The Complaint does not provide specific detail about Samaniego's alleged propensities, but it need not. Paragraphs 43 through 45 claim that Samaniego had propensities for predatory sexual behavior predating her hire by Norfolk Academy, propensities that posed a foreseeable threat of injury to students of the Academy. These paragraphs further assert that the Academy knew, or should have known - through reasonable investigation - of those propensities.
These allegations encompass the elements of negligent hire and are sufficient to survive demurrer. Thus, the demurrer is overruled as to this ground.
5. That the allegations grouped under "VII. Intentional Infliction of Emotional Distress" fail to state a claim upon which relief can be granted.
Defendants contend that the Complaint alleges neither sufficiently outrageous conduct nor facts sufficient to support a finding of "severe" emotional distress.
A claim of intentional infliction of emotional distress requires that the plaintiff must have suffered some severe emotional distress, but the mere allegation of "severe emotional distress" is a legal conclusion without supporting facts. Russo v. White, 241 Va. 23, 28 (1991). "[E]ven on demurrer, the court is not bound by such conclusory allegations". Id. A plaintiff "must allege all facts necessary to establish" his cause of action. Id. (quoting Ely v. Whitlock, 238 Va. 670, 677, 385 S.E.2d 893, 897 (1989)).
Without detailing the distress caused, the Complaint fails to state a cause of action for intentional infliction of emotional distress. Thus, the demurrer is sustained as to this ground, and the Plaintiff is granted leave to amend her Complaint.
6. That punitive damages are limited to an aggregate award of $350,000 against all defendants.
Virginia Code §8.01-38.1 caps the total punitive damage award against all defendants at $350,000. The Court shall treat this ground of the demurrer as a motion to amend the ad damnum to reflect this statutory limit and reduces the ad damnum to the statutory limit.
Counsel are requested to ensure that the attached order is enclosed and presented for entry not later than May 19, 2010.
Sincerely,
/s/
Charles E. Poston
Judge CEP/GHK/nm
Enc. IN THE CIRCUIT COURT OF THE CITY OF NORFOLK FOURTH JUDICIAL CIRCUIT CHELSI BURNETT, Plaintiff v. THE NORFOLK ACADEMY, ET AL., Defendants File Number CL09-6707 ORDER DISPOSING OF DEMURRER
For the reasons stated in the Court's letter opinion dated May 5, 2010, the Defendants' demurrer to the complaint is OVERRULED with the following exceptions:
1. With respect to that portion of the complaint seeking damages for intentional infliction of emotional distress, the demurrer is sustained. The Plaintiff is granted leave to amend with respect to this allegation only, provided that the amended complaint is filed within 21 days of the entry of this order.
2. The Court will treat the demurrer challenging the amount of the ad damnum seeking punitive damages in excess of the statutory limit as a motion to reduce the ad damnum and will reduce the ad damnum with respect to punitive damages to the statutory limit.
The Court notes and preserves the parties' objections to the entry of this order for the reasons stated in their written submissions in support of their respective positions concerning the demurrer.
Let the Clerk forward a certified copy of this order to counsel of record.
ENTERED THIS ___ DAY OF MAY, 2010
/s/_________
Circuit Judge /s/_________
Counsel for the Plaintiff /s/_________
Counsel for the Defendants