Could Virginia Tech Be Held Liable for Cho Seung Hui's Shootings, If An Investigation Were to Reveal It Had Been Negligent?
The Unfortunate Answer
By ANTHONY J. SEBOK
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Tuesday, Apr. 24, 2007
In the aftermath of the tragedy at Virginia Tech, many commentators have begun to ask whether university officials could have done more to prevent the gunman, Cho Seung Hui, from killing 32 faculty members and students and himself, and wounding others. In this column, I will explore the possible legal basis for holding Virginia Tech liable for Cho's actions.
Importantly, I will not make any claims about Virginia Tech's actual responsibility - just its potential responsibility, contingent on the results of an investigation. Plainly, Cho, who is now dead, was the one most responsible for the events of April 16. No one can or should assume that anyone else bears responsibility for what he did. Only after a careful investigation can that sort of judgment be made.
But once an investigation is complete, what will it tell us? If it turns out that there was negligence, or worse, on the part of the university or others, can the wounded victims or the families of the deceased victims of the attack sue Virginia Tech for damages?
The answer is not very reassuring for the families or the surviving victims, and it raises important questions about whether we want to insulate the state from accountability in court for its mistakes.
Can Virginia Tech Be Held Responsible to Students Simply as a Landowner?
In thinking about liability for the shootings, we must distinguish between two very important questions: First, when, if ever, is a university responsible for the actions of a killer on its own campus? Second, if the university is a state institution, is its liability greater or less than if it were a private university?
The answer to the first question is relatively well-established in Virginia. Virginia is notoriously pro-defendant in matters of tort law. (For example, it still adheres to the doctrine of contributory negligence, which bars a negligent plaintiff from recovering damages.) Yet even Virginia imposes limited duties on universities to protect their students.
The first of the grounds for this duty simply comes from the fact that a university is a landowner, and landowners have certain duties to an invitee (that is, a person invited to enter upon the property for business or educational purposes). For example, in the 2001 case of Thompson v. Skate America, Inc., the Virginia Supreme Court held that a skating rink operator could be held liable for an assault on a patron by another patron if the attacker was "known to [the skating rink] to be violent and to have committed assaults on other invitees on its property in the recent past."
Indeed, universities have greater duties than the typical landowner, under Virginia law. In its 1989 decision in Wilson v. Commonwealth of Virginia et al., a Virginia lower court held that "a student living in a college dormitory should reasonably expect a greater degree of protection from the University than would a tenant who leases residential property from a landlord in the open market."
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