Virginia Supreme Court Further Restricts Liability for Third-Party Criminal Acts, Holding that a Tort Claim Based on the “Voluntary Assumption of Duty” Theory Requires the Assumption of Duty to Be Expressly Assumed, Not Merely Impliedly Assumed

On September 27, 2018, the Virginia Supreme Court released its decision in the Terry v. Irish Fleet, Inc. case, further clarifying limitations on the ability for victims of criminal acts to bring suit for their injuries and damages against persons who did not commit the criminal acts.  In affirming the trial court’s dismissal of the case on demurrer (a motion to dismiss for failure to state a claim), the Court found that the amended complaint against several defendants alleging, among other things, that a taxicab fleet operator and dispatching service assumed a duty to warn cab drivers of suspicious calls from potential riders and was negligent in fulfilling that duty, was premised on an implied undertaking, and was therefore insufficient to state a tort claim based on the concept of assumption of duty. 

The case involved wrongful death claims brought by the family of a taxicab driver who was murdered while responding to a call for a cab.  According to the facts alleged in the complaint, the deceased was employed by an independent company but received dispatch from Irish Fleet, Inc.  The night before the murder, a dispatcher at Irish Fleet received eight “troubling” telephone calls from a male caller which the dispatcher felt constituted a “red flag” and “one that merited screening.”  After dispatching a cab, the caller then requested the cab be sent to a business the dispatcher knew to be closed so the dispatcher cancelled the cab and called another cab company to warn them about the caller.  The next morning, a different dispatcher for Irish Fleet received another call from “the [same] Caller on the same phone” from the previous night.  The dispatcher sent the now-deceased cab driver to the location requested and, sometime after the transport began, he was fatally shot three times by his passenger.

Plaintiff filed suit against Irish Fleet and the individual dispatcher from the first night, alleging that they assumed the duty of, among other things, “determining the safety risk of the call,” “using ordinary care in the screening and selection process,” and “warning of known dangerous or troubling callers or fares… to all other employees and/or agents. which [Irish Fleet] should recognize as necessary for the protection of people and other cab drivers.”  Plaintiff alleged that the dispatcher on the morning of the murder was negligent in dispatching the now-deceased driver to a known dangerous fare.

In reaching its decision affirming the dismissal of the complaint, the Supreme Court of Virginia first discussed the general rule in the Commonwealth – that there is “no duty to warn or protect against acts of criminal assault by third parties.” The court further stated that only under “rare circumstances” can there be a duty to protect others against harm from third-party criminal acts.  These “rare circumstances” have involved “special relationships” between the victim and the defendant such as “common carrier-passenger, business proprietor-invitee, and innkeeper- guest.”  The only other circumstance where a duty may exist is where “the defendant voluntarily undertook such duty by expressly communicating his intention to do so.” The Court noted that this later situation is narrow and is not fulfilled “merely because [a defendant] took precautions not required of it to protect the safety of the plaintiff.”

In the case at bar, Plaintiff did not allege a “special relationship” existed but proceeded under the theory that Irish Fleet voluntarily undertook the duty to warn.  However, any such voluntary undertaking was “implied” and not “express,” according to the allegations in the complaint. The Supreme Court of Virginia found this to be insufficient.  The Court held, “we believe the recognition of a voluntarily assumed duty to warn or protect against the danger of criminal assault by a third person should be confined to express undertakings.”

At MacDonald Law Group, we handle a broad array of matters involving the defense of premises liability, complex civil litigation and wrongful death claims.  Should you have any questions on such topics, please contact us using the email or phone contacts found on our website at

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