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In the Light Most Favorable: A Wise Rule

JURIST Guest Columnist Robert Hall of Hall & Sethi, PLC argues that the Virginia Supreme Court got it wrong in overturning the Virginia Tech wrongful death verdict...

Following the Texas Tower massacre of August 1, 1966 at the University of Texas, the Columbine shootings in Colorado in 1999 and the Appalachian School of Law shootings in Grundy, Virginia in 2002, college and university administrators started paying greater attention to campus safety and mental health. The US Department of Education and the US Secret Service embarked on a joint project—"Threat Assessment in Schools" (PDF)— for the early detection, identification and interception of students whose aberrant behaviors suggested a risk of harm to others, and campus police departments began training on how to respond to "active shooters."

The Board of Visitors of Virginia Polytechnic Institute and State University (Virginia Tech) has been charged by statute with "the protection and safety of students and other persons residing on the property" since 1919. Following the 1990 adoption of the federal Clery Act, the university adopted its Policy 5615 (PDF) which required that the students be notified "of crimes (on campus), which have occurred and necessitate caution on the part of students and employees, in a timely fashion and in such a way as to aid in the prevention of similar occurrences."

In 2006 the university adopted a resolution (PDF) committing to the governor and General Assembly of Virginia that it would "seek to ensure the safety and security" of the students on its campus.

On August 21, 2006, the university sent out the first of a series of blast emails warning of campus risks. The first email recited that a prisoner, who had escaped from a county jail and shot and killed two non-students off campus, had been seen approaching campus. The campus went into lockdown. Some six hours later, the prisoner was captured without further incident or injury.

Sequential cases of mumps and measles detected on campus resulted in blast email warnings so those not inoculated or immune might seek medical advice.

On April 2, 2007, a bomb threat note was found in the mail room of Torgersen Hall, a classroom building on campus. The Virginia Tech Police Department thought the note was probably a hoax, but issued another blast email to the campus, and the building was evacuated, the area cordoned off and traffic re-routed. The note was a hoax.

The pattern had been set. If the administration was advised of a situation which might pose a risk of harm on campus, the students were alerted without regard to whether the risk seemed real, imminent and probable, or merely a possibility. It was the nature of risks that the severity of the risk and its consequences could only be known post facto.

Three days after another bomb threat—which too triggered a blast email—at 7:15 AM on April 16, 2007, two students were found shot in the dorm room of a 600-room dormitory. One, a male wearing only boxer shorts, was dead when the EMTs arrived. A fully dressed female, who had been shot execution-style on the top and back of the head, survived at a local hospital for several hours before succumbing to her wounds. University administrators notified the Governor that they had "one student dead, on[e] wounded, gunman on loose" and warned the university's Board of Visitors that "[t]wo students were shot this morning, one fatally."

No word, however, was issued to the campus until 9:26 AM when a plain vanilla blast email went out, advising that there had been "a shooting incident" at West Ambler Johnston earlier that morning and police were on the scene investigating. Nothing was said of any injuries or deaths. The email made it sound like a completed event.

Nineteen minutes later, the same gunman entered the classrooms on the second floor of Norris Hall and commenced a shooting spree with two semi-automatic pistols which left thirty additional students and faculty dead, and another seventeen wounded—the worst one day disaster in the history of higher education.

Subsequently, two families who lost daughters in the rampage filed suit against the university (technically against the Commonwealth of Virginia under the Virginia Tort Claims Act (VTCA)) asserting that university administrators had been negligent for failing to warn the campus that there was a gunman on the loose who had already shot two students, killing one outright and critically wounding the other.

Eight months earlier, when the blast email had gone out about the escaped prisoner, Erin Peterson, the only child of Grafton and Celeste Peterson of Virginia, locked herself in her dorm room and closed her blinds. Julia "Julie" Pryde, daughter of Harry and Karen Pryde of New Jersey, a graduate student who lived off campus, got the email and remained in her home rather than traveling on campus for classes.

Two and one-half hours after the first two students had been shot in the campus dormitory on April 16th, Erin Peterson and Julie Pryde were in their classes in Norris Hall unaware this time that there was a gunman on the loose. Each lost her life in the subsequent hail of gunfire.

After eight days of trial and the introduction of forty-nine exhibits, a jury of seven found the university administrators negligent and awarded each family $4,000,000 in damages, remitted to $100,000 in accordance with the VTCA.

The university (in the name of the commonwealth) appealed and on October 31, 2013, the Virginia Supreme Court reversed the jury verdicts and entered final judgment for the university, holding that on the facts presented at trial, the university had owed no duty to warn the students, deeming the families' evidence insufficient to support a duty to warn. The families' Petition for Rehearing was denied without comment on January 21, 2014.

The opinion of the court was simultaneously baffling and troubling to the families. Once the jury had returned its verdict, the court was bound by rule to view the evidence in the light most favorable to the prevailing party. The court's opinion (PDF), however, was based on the evidence most favorable to the losing party at trial, evidence which the jury had found unpersuasive and in one instance, non-existent.

The court's opinion concluded, "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." While defense witnesses had floated this proposition they were unable to point to a fact which supported their contention that the shooter had fled the scene, and the defendants' admission had been read into evidence. Prior to the Norris Hall shootings, "the police had not yet concluded that they knew the identity or whereabouts of the perpetrator of the [West Ambler Johnston] shootings." The legal anomaly then was this: the jury, which had heard and weighed the evidence, rejected "the shooter had fled" defense as fiction, but the court not only accepted the fiction as a proved fact, it made it central to its conclusions.

If "the shooter had fled the area and posed no danger to others," police and university officials were not behaving like they believed it so.

Police officers from two jurisdictions spent their time on campus looking for the shooter. Two SWAT teams in full battle gear were staged near the center of campus in order to make an arrest. The university administrator who notified the governor that Virginia Tech had a gunman on the loose also ordered his administrative assistant to lock their office doors in the main administration building. That individual sent his email from a meeting of administrators convened to deal with the crisis, three of whom drafted messages to be sent by blast email (never sent) that two students had been shot, one fatally and that Virginia Tech police were searching for the shooter. The Virginia Tech School of Professional and Continuing Education went to lockdown at 8:00 AM when administrators there learned about the first shootings.

The court's opinion also accepted the university's contention that the shooter might have been the boyfriend of the first female victim because the male in her room was dressed only in his boxer shorts. The male was the resident advisor who lived in the room next door. His dorm room door was open, his slacks hung over his chair, and his wallet and watch lay out on his desk. The female's body lay under the window. She had been shot in the top and back of the head, execution style. The male's body lay up against the door to the room on the inside, making it difficult for the first responders to enter. He had been shot in the face. Given that wound and the position of his body he appeared to have been shot as he entered the room. By 8:15 AM, the police had been informed that he was gay, thus making a love triangle an unlikely explanation for the shooting.

Alongside each victim lay a 9mm shell casing, most likely from a semi-automatic pistol capable of handling multiple round clips. Thirteen bloody footprints left the room, headed towards a stairwell, and he left a bloody thumbprint on the handle to the stairwell door. There were no footprints discernible in the stairwell. Had he gone up or down? Was he a student or a visitor? Even if it was the boyfriend, what gunfire might accompany an attempt to arrest him, if found?

By ignoring this evidence, the court demonstrated the wisdom of the ancient rule: on appeal, view the evidence in the light most favorable to the party which received the verdict of the jury, and do not substitute the court's view of the facts for the judgment of the jury which appraised the credibility of the witnesses. The court might get it wrong, and, in doing so, retroactively deprive the prevailing parties of a right the Virginia Constitution calls sacred the—right to trial by jury.

Robert Hall is a founding member of the law firm of Hall & Sethi, PLC, where he specializes in wrongful death and personal injury law. He represented the plaintiffs in the above discussed Virginia Tech wrongful death suit. In 2009, he was awarded the Virginia Trial Lawyers Association's Lifetime Achievement Award.

Suggested citation: Robert Hall, In the Light Most Favorable: A Wise Rule, JURIST - Sidebar, Feb. 26, 2014, http://jurist.org/sidebar/2014/02/robert-hall-virginia-tech-shooting.php.

This article was prepared for publication by Michael Muha, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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