PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Powell,
JJ., and Russell and Lacy, S.JJ.

COMMONWEALTH OF VIRGINIA
                                             OPINION BY
v.   Record No. 121717                 JUSTICE CLEO E. POWELL
                                          October 31, 2013
GRAFTON WILLIAM PETERSON,
ADMINISTRATOR OF THE ESTATE OF
ERIN NICOLE PETERSON, DECEASED, ET AL.,

            FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
             William N. Alexander, II, Judge Designate

      This appeal arises out of wrongful death suits filed

against the Commonwealth by the administrators (hereinafter

“Administrators”) of the estates of Erin Nicole Peterson and

Julia Kathleen Pryde, two murder victims of the tragic 2007 mass

shooting at Virginia Polytechnic Institute and State University

(hereinafter “Virginia Tech”). 1   In this case, we hold that even

if there was a special relationship between the Commonwealth and

students of Virginia Tech, under the facts of this case, there

was no duty for the Commonwealth to warn students about the

potential for criminal acts by third parties.    Therefore, we

will reverse the judgment of the circuit court.

                     I. FACTS AND PROCEEDINGS


      1
       In a separate appeal this day decided, Record No. 121720,
the Administrators appeal the trial court’s decision to grant a
plea of res judicata and motion to dismiss filed by Charles W.
Steger, the President of Virginia Tech. The trial court denied
the Commonwealth’s same motion and Peterson and Pryde’s wrongful
death suits were consolidated and proceeded to a jury trial
against the Commonwealth only.

                                   1
        On the morning of April 16, 2007, at approximately 7:30

a.m., the Virginia Tech Police Department received a call that

an incident had occurred in the West Ambler Johnston Hall

dormitory but the specifics of what had happened were unknown.

When officers arrived they found two gunshot victims: a female

and a male clad in only his boxer shorts.      Although officers

from the Virginia Tech Police Department were the first on the

scene, the Blacksburg Police Department led the investigation.

At least one member of the Virginia State Police also joined the

investigation.

        During the investigation, police came to believe that they

were investigating a domestic homicide because there were no

signs of forced entry or a robbery.      They believed that a

“targeted shooting” had occurred because the shooting was in a

“less conspicuous area . . . kind of hidden in the back” 2 making

it “easier for the suspect to get in and get out without being

noticed.”      Police believed that this was an isolated incident

that posed no danger to others and that the shooter had fled the

area.       They did not believe that a campus lockdown was

necessary.

        At the crime scene, police observed a bloody footprint and

were determined to locate the source of the print.       Police also


        2
       The officers described the area as being one that you
would not even know was there if you did not live there.
                                     2
learned that the female’s boyfriend was a gun enthusiast.

     Once the female’s boyfriend was identified as a person of

interest, a “Be On The Lookout” (“BOLO”) went out for him.      The

police located the boyfriend at approximately 9:45 a.m.

Officers described him as appearing “[s]hocked” and “[s]cared.”

The boyfriend told the police that he was en route to Virginia

Tech from Radford University where he attended school because,

while he was in his 9 a.m. class, he heard from a friend who

attended Virginia Tech who told him what had happened.    He

explained that he had dropped his girlfriend off that morning

around 7 a.m. and then headed to Radford University for his 8

a.m. class.   The boyfriend consented to a search of his vehicle

and shoes.    He also allowed the police to conduct a gunshot

residue test.    As police spoke with the boyfriend, they received

word that there were “active shots” in Norris Hall.   Officers

quickly took the boyfriend’s contact information, told him that

they would be in touch, and left for the Virginia Tech campus.

     Police subsequently executed a search warrant of the home

of the boyfriend of the female victim found in West Ambler

Johnston Hall.   They found nothing.

     Charles W. Steger, the President of Virginia Tech,

testified that he learned of “a shooting” at approximately 8

a.m. and he called a meeting of a group of administrators tasked

with campus safety, called the University Policy Group

                                  3
(hereinafter “Policy Group”), to assess the situation and handle

the release of information pertaining thereto.    Shortly after 8

a.m., President Steger spoke with Wendell Flinchum, the Chief of

the Virginia Tech Police Department, and learned that a female

and a male student had been shot, at least one of whom was dead,

that the shootings appeared targeted, likely domestic in nature,

and that the shooter had likely left the campus.

     The Policy Group convened around 8:30 a.m.     During this

meeting, Steger learned that the police were on the lookout for

the female victim’s boyfriend as a person of interest.    One of

the group’s members, Ralph Byers, the Executive Director for

Government Relations, notified the Governor’s Office at

approximately 8:45 a.m. of what had happened in West Ambler

Johnston Hall but indicated that the information was not

releasable because Virginia Tech was working on a press release.

The email to the Governor’s office stated “Not releaseable yet.

One student dead, one wounded.   Gunman on loose. . . .   State

police are involved.   No details available yet.”   Byers claimed

that he used the phrase “[g]unman on the loose” as shorthand for

the “perpetrator has not been apprehended.”   Virginia Tech

wanted to notify the next of kin before releasing the

information to the public.   Steger instructed a Policy Group

member to compose a campus notice, and following revisions and a

technical difficulty with the computer system, it was sent out

                                 4
by campus-wide “blast e-mail” at 9:26 a.m.   The notice stated

that “[a] shooting incident occurred at West Ambler Johnston

[Hall] earlier this morning.   Police are on the scene and

investigating” and advised students to be alert for anything

suspicious.   At 9:28 a.m. the Policy Group also sent a message

to the Board of Visitors stating “[t]wo students were shot this

morning, one fatally.   We will be back in touch with more

information as soon as it is known.    Please do NOT release the

information about the fatality.”

     At approximately 9:45 a.m. the mass shooting at Norris Hall

began.   At 9:50 a.m. a second campus-wide “blast e-mail” was

sent stating that “[a] gunman is loose on campus.   Stay in

buildings until further notice.    Stay away from all windows.”

Erin Peterson, 18, and Julia Pryde, 23, were among the victims

murdered in Norris Hall.   Police later identified Seung-Hui Cho

as the shooter.

     After the Norris Hall shooting, police realized that the

patterns on shoes worn by Cho did not match the prints found in

West Ambler Johnston Hall.   The day after the shootings, police

learned that the gun used to murder the two people in West

Ambler Johnston Hall matched the one Cho used in Norris Hall.

Police later found bloody clothing belonging to Cho that had the

DNA from one of the victims of the West Ambler Johnston Hall

shooting on it.

                                   5
     The Administrators filed wrongful death claims in

Montgomery County Circuit Court against Cho’s estate, the

Commonwealth and eighteen other individuals, including Steger.

The cases were consolidated, but following certain non-suits and

pretrial orders (see companion appeal Peterson v. Commonwealth,

Record No. 121720) the Commonwealth was the sole defendant at

trial.    The Administrators claimed that the Commonwealth was

liable for the actions of the Commonwealth’s employees at the

university pursuant to the Virginia Tort Claims Act (“VTCA”),

Code § 8.01-195.1, et seq.    They alleged that a special

relationship existed between the Commonwealth’s employees at

Virginia Tech and Peterson and Pryde that gave rise to the

Commonwealth’s duty to warn Peterson and Pryde of third party

criminal acts and that the Commonwealth’s failure to warn them

was the proximate cause of their deaths and the Administrators’

losses.   The Commonwealth argued that there was no foreseeable

harm to the students and that the evidence failed to establish

that any alleged breach of a duty of care was the proximate

cause of the deaths.

     The Commonwealth objected to several jury instructions,

including Instruction 3 which provided, in summary, that

Peterson and Pryde were business invitees of Virginia Tech and

enjoyed a special relationship with the university.   The

instruction further stated that this status imposed a duty on

                                  6
the university employees to maintain a safe campus.   Based on

this instruction, the jury was told that if they found that the

university employees should have reasonably foreseen that injury

arising from the criminal conduct of a third party might occur

but failed to warn students, the Commonwealth should be found

negligent.   The instruction also stated that the jury should

find in favor of the Administrators if that failure to warn was

the proximate cause of the alleged injuries.   The jury returned

a verdict in favor of the Administrators awarding $4 million to

each family.

     Upon the Commonwealth’s motion, the court reduced each

verdict to $100,000 in accordance with the VTCA, Code § 8.01-

195.3.   The Commonwealth moved to set aside the jury verdict

arguing it was contrary to well-established Virginia law that a

special relationship does not exist under the circumstances

here, citing Burns v. Gagnon, 283 Va. 657, 668, 727 S.E.2d 634,

641 (2012), which was decided post-trial.   The Commonwealth

again argued that the verdict should be set aside because the

evidence was insufficient as a matter of law to give rise to a

duty to protect from third party criminal acts.   Alternatively,

the Commonwealth argued that the trial court should order a new

trial due to erroneous jury instructions.   The trial court

denied these motions.   This appeal follows.

                           II.   ANALYSIS

                                  7
     On appeal, the Commonwealth argues that

          1. The circuit court erred in finding that
          the Commonwealth, Virginia Tech, and/or
          their employees had a special relationship
          with Peterson and Pryde that imposed a duty,
          and therefore, erred in instructing the jury
          that there was such a duty, in submitting
          the case to the jury and in entering
          judgment on the jury’s verdict.

          2. Even assuming that the Commonwealth,
          Virginia Tech or their employees had a
          relevant special relationship under Virginia
          law, the evidence adduced did not give rise
          to a duty to warn of third party criminal
          acts, and therefore, the circuit court erred
          in submitting the case to the jury and in
          entering judgment on the jury’s verdict.

          3. The circuit court erred in finding that
          there was sufficient evidence regarding
          causation to raise a jury issue, and
          therefore, erred in submitting the case to
          the jury and in entering judgment on the
          jury’s verdict.

          4. Even if there were a theory that might
          have allowed plaintiffs to recover, the
          circuit court’s instructions (2, 3, 4, 10 &
          11) misstated Virginia law regarding the
          existence of a relevant special
          relationship, the existence and type of duty
          purportedly owed, the standard that triggers
          a duty to warn of third party criminal acts,
          as well as regarding the reasonable
          expectation of parents and students at a
          university, and therefore, the jury’s
          verdict must be overturned.

We hold that the facts in this case do not give rise to a duty

for the Commonwealth to warn students of the potential for third

party criminal acts.   Therefore, we do not reach the

Commonwealth’s causation or jury instruction arguments.

                                 8
     As a general rule, a person does not have a duty to warn or

protect another from the criminal acts of a third person.

Thompson v. Skate America, Inc., 261 Va. 121, 128-29, 540 S.E.2d

123, 127 (2001).   “This is particularly so when the third person

commits acts of assaultive criminal behavior because such acts

cannot reasonably be foreseen.”        Burdette v. Marks, 244 Va. 309,

311-12, 421 S.E.2d 419, 420 (1992).       However, the general rule

does not apply in all situations.       “‘There are narrow exceptions

to this rule,’ but the application of those exceptions ‘is

always fact specific and, thus, not amenable to a bright-line

rule for resolution.’”   Taboada v. Daly Seven, Inc., 271 Va.

313, 322-23, 626 S.E.2d 428, 432 (2006) (alteration omitted)

(quoting Yuzefovsky v. St. John’s Wood Apartments, 261 Va. 97,

106, 540 S.E.2d 134, 139 (2001)), aff’d on reh’g, 273 Va. 269,

270, 641 S.E.2d 68, 68 (2007).    Before an exception comes into

play, the facts must establish the existence of a special

relationship.

     “‘[W]hether a legal duty in tort exists is a pure question

of law’” to be reviewed de novo.       Gagnon, 283 Va. at 668, 727

S.E.2d at 642 (quoting Kellermann v. McDonough, 278 Va. 478,

487, 684 S.E.2d 786, 790 (2009).       To prevail,

          the plaintiff must establish that there is a
          special relationship, either between the
          plaintiff and the defendant or between the
          third party criminal actor and the
          defendant. The necessary special

                                   9
          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, 261 Va. at 107, 540 S.E.2d at 139 (citation and

footnote omitted).   For the purposes of this opinion, we will

assume without deciding that the threshold requirement that such

a special relationship exists is satisfied on these facts.

     Having assumed without deciding that a special relationship

exists, the question becomes whether, as a matter of law, under

the facts and circumstances of this case, the Commonwealth had a

duty to warn students about the potential for third party

criminal acts.   “The law determines the duty, and the jury, upon

the evidence, determines whether the duty has been performed.”

Acme Markets, Inc. v. Remschel, 181 Va. 171, 178, 24 S.E.2d 430,

434 (1943).

     A review of our prior cases indicates that in order for a

duty to be imposed upon a defendant, the degree of the

foreseeability of harm that the plaintiff must establish depends

on the nature of the special relationship.   We have recognized

two levels of foreseeable harm: known or reasonably foreseeable

harm, Taboada, 271 Va. at 325-26, 626 S.E.2d at 434, and

“imminent probability of harm,” the heightened degree of

foreseeability that arises where the defendant “knows that

criminal assaults against persons are occurring, or are about to


                                10
occur, on the premises,” based upon “notice of a specific danger

just prior to the assault.”   Thompson, 261 Va. at 128-29, 540

S.E.2d at 127 (citing Wright v. Webb, 234 Va. 527, 533, 362

S.E.2d 919, 922 (1987)).   Certain special relationships such as

that of a common carrier/passenger, innkeeper/guest, and

employer/employee impose a duty to warn when the danger of third

party criminal acts is known or reasonably foreseeable.    See

Taboada, 271 Va. at 325-26, 626 S.E.2d at 434 (innkeeper/guest);

A.H. v. Rockingham Publishing Co., Inc., 255 Va. 216, 221, 495

S.E.2d 482, 486 (1998)(employer/employee); Connell v. Chesapeake

& Ohio Ry. Co., 93 Va. 44, 62, 24 S.E. 467, 470 (1896)(common

carrier/passenger).

     In instances, however, where the special relationship was

that of business owner/invitee or landlord/tenant, we have

imposed a duty to warn of third party criminal acts only where

there was “an imminent probability of injury” from a third party

criminal act.   Yuzefovsky, 261 Va. at 109, 540 S.E.2d at 141. 3


     3
       In this case, the circuit court instructed the jury that
there was a business owner/invitee relationship between the
Commonwealth and the students and that there was a duty to warn
if the danger was reasonably foreseeable. This was error
because our case law is clear that when the relationship is that
of business owner/invitee, the duty to warn arises only if there
is an imminent probability of harm from a third party criminal
act. However, because we conclude that, under the facts of this
case, no duty was established under the more lenient standard of
foreseeability, this distinction is not dispositive in the
resolution of this appeal.

                                11
Thus, the duty to warn of danger from third party criminal acts

has remained an exception to the general rule.   Burdette, 244

Va. at 312-13, 421 S.E.2d at 421.

     Where the standard was that the duty to warn or protect was

present when there was “an imminent probability of injury” from

a third party criminal act, this Court has held that the duty to

warn existed, as a matter of law, in the unusual situation where

an on-duty police officer failed to intervene when he responded

to the scene of a motor vehicle accident and observed one driver

attack a bystander who had stopped to render assistance. Id. at

310-11, 421 S.E.2d at 419-20.   More frequently, however, this

Court has concluded that facts relied upon in particular cases

fail to establish a duty, as a matter of law, to protect against

third party criminal acts.   See, e.g., Dudas v. Glenwood Golf

Club, Inc., 261 Va. 133, 140, 540 S.E.2d 129, 133 (2001)

(holding that two robberies within the month preceding the

attack on plaintiff was not a “level of criminal activity” that

would “have led a reasonable business owner to conclude that its

invitees were in imminent danger of criminal assault”);

Yuzefovsky, 261 Va. at 109, 540 S.E.2d at 141 (concluding as a

matter of law that employee misrepresentations about the safety

of an apartment complex, where in one year 656 crimes, including

113 against persons, had been reported, failed to give rise to

the duty to warn or protect from harm because these facts failed

                                12
to establish “an imminent probability of injury to [the

plaintiff] from a” criminal act of a third party); Burns v.

Johnson, 250 Va. 41, 42-45, 458 S.E.2d 448, 449-52 (1995) (trial

court erred as a matter of law in failing to hold that the

fifteen minutes between an individual making sexual advances to

a store clerk and abducting and raping a store patron did not

give rise to the duty to protect against third party criminal

acts).

     In cases where it was alleged that a special relationship

gave rise to the duty to warn because the danger of harm from

third party criminal acts was known or reasonably foreseeable,

this Court has similarly, frequently concluded that the duty to

warn was not present as a matter of law.   See A.H., 255 Va. at

221-22, 495 S.E.2d at 486 (stating that an employer has no duty

to protect an employee from third party criminal acts unless the

danger is “known or reasonably foreseeable” as a matter of law

and concluding that knowledge of similar assaults in the

preceding five years was not sufficient); Connell, 93 Va. at 58,

24 S.E. at 469 (common carrier “cannot be deemed to have

anticipated nor be expected to guard and protect [a passenger]

against a crime so horrid, and happily so rare, as that of

murder.”).

     In only rare circumstances has this Court determined that

the duty to protect against harm from third party criminal acts

                               13
exists.   See Taboada, 271 Va. at 325-26, 626 S.E.2d at 434

(concluding that, like a common carrier, an innkeeper has a

“duty of utmost care and diligence” to protect guests from third

party criminal acts where the danger is known or reasonably

foreseeable, and holding that where -- over a three year period

immediately prior to the attack -- hotel employees had called

police 96 times to report criminal conduct including robberies,

malicious woundings, shootings, and other criminally assaultive

acts, the hotel knew of the danger and had received a warning

from police that “guests were at a specific imminent risk of

harm,” these were sufficient averments to survive a demurrer

and, if proven, to establish the duty as a matter of law).

     Here, even if this Court were to apply the less stringent

standard of “know or have reasonably foreseen,” there simply are

not sufficient facts from which this Court could conclude that

the duty to protect students against third party criminal acts

arose as a matter of law.   In this case, the Commonwealth knew

that there had been a shooting in a dormitory in which one

student was critically wounded and one was murdered.   The

Commonwealth also knew that the shooter had not been

apprehended.   At that time, the Commonwealth did not know who

the shooter was, as law enforcement was in the early stages of

its investigation of the crime.    However, based on

representations from three different police departments,

                                  14
Virginia Tech officials believed that the shooting was a

domestic incident and that the shooter may have been the

boyfriend of one of the victims.      Most importantly, based on the

information available at that time, the defendants believed that

the shooter had fled the area and posed no danger to others.

This is markedly different from the situation presented in

Taboada, 271 Va. at 325-26, 626 S.E.2d at 434, where police had

specifically warned the innkeepers that guests were at risk

prior to the time that the plaintiff in that case was shot by a

trespasser.   Based on the limited information available to the

Commonwealth prior to the shootings in Norris Hall, it cannot be

said that it was known or reasonably foreseeable that students

in Norris Hall would fall victim to criminal harm.     Thus, as a

matter of law, the Commonwealth did not have a duty to protect

students against third party criminal acts.

                         III.   CONCLUSION

     Assuming without deciding that a special relationship

existed between the Commonwealth and Virginia Tech students,

based on the specific facts of this case, as a matter of law, no

duty to warn students of harm by a third party criminal arose.

Thus, we will reverse the trial court’s judgment holding that a

duty arose and enter final judgment in favor of the

Commonwealth.

                                         Reversed and final judgment.

                                 15
