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Three justices that heard arguments Feb. 12 found that the trial judge's instructions to the Montgomery County Circuit Court jury in March should be revisited.
STEPHANIE KLEIN-DAVIS | The Roanoke Times
The Ashley Plantation neighborhood, with $400,000-plus homes on a golf course in Botetourt County, contains signs like these along Greenfield Street, because a convicted sex offender’s wife is building a home in the community. The husband, Calvert Anthony Thompson, has a history of sexually assaulting young women but was released from prison in June and has reconciled with his wife of 20 years. ]
Thursday, February 28, 2013
The full Virginia Supreme Court will hear the commonwealth of Virginia's appeal of two $4 million jury awards for the families of two women killed at Virginia Tech on April 16, 2007.
The appeal, which could overturn a finding that Tech administrators were negligent in handling the highest-casualty school shooting in U.S. history, was granted in writing on Feb. 25, according to court documents.
The case could be heard as soon as June, said Doug Robelen , chief deputy Supreme Court clerk .
The March 2012 jury award did not stand at $4 million each. In a subsequent hearing, Presiding Judge William Alexander reduced the awards under the Virginia Tort Claims Act, which caps damages against the state at $100,000 per plaintiff.
Now even that reduced award may be in jeopardy.
According to the state Supreme Court's website, a writ panel of three justices who heard arguments in Richmond on Feb. 12 found that Alexander may have erred in his instructions to the Montgomery County Circuit Court jury last year.
Brian Gottstein , spokesman for Virginia Attorney General Ken Cuccinelli, wrote in an email that the defense is happy with the panel's ruling.
Plaintiffs attorney Bob Hall declined to comment.
The full court consented to hear arguments in four out of five judicial errors alleged by the defense. The court will not hear arguments about a fifth alleged error, that Alexander abused his discretion in allowing testimony about warnings sent out by Tech officials during a 2006 manhunt for fugitive William Morva, who shot a Montgomery County sheriff's deputy near the campus.
The meat of the defense's appeal will be Alexander's instructions to the jury, which stated that under state law Tech administrators had a "special relationship" to the university's students. And that relationship imposed a duty upon the administrators to provide for the safety of the students.
Under English Common Law, on which much of Virginia law is based, innkeepers owe a duty to their guests to provide for their safety.
But attorneys for the commonwealth argued that the state Supreme Court has consistently refused to extend special relationships beyond innkeepers and guests, and therefore no special relationship existed in the Tech case.
Furthermore, the defense argued, in 2011 the state Supreme Court found in Burns v. Gagnon that a public high school assistant principal had no statutory duty to warn a student of potential danger.
In that case, the principal was told that one student had threatened another with harm. But the principal did nothing to prevent a fight later that day in which a student was attacked and permanently injured.
"The Burns case is problematic. There's no question about it," Alexander said before entering the jury verdict in the Tech case.
But, the judge said, "there are enough factual and legal differences" between the two that the high court ought to look at the Tech case and clarify the issues.
Plaintiffs attorney Hall, however, argued that another of the court's recent decisions did establish a duty for university administrators to protect students from foreseeable harm.
In 2010, the court ruled in DiGiacinto v. Rector and Visitors of George Mason University that universities are considered under the law to be "sensitive places" where vulnerable populations gather. As such, university administrators may ban firearms from campus buildings and events to protect those populations.
"Campus safety, as an expression of the police power, is a most fundamental and compelling state interest," the court opined. "Without the regulation, the University community's safety is seriously compromised."
The plaintiffs also appealed one of Alexander's rulings, but the writ panel rejected their argument. The parents of slain Tech students Erin Peterson and Julia Pryde appealed Alexander's decision to dismiss Tech President Charles Steger as an individual defendant in the case based on a legal technicality.
But, the panel found no error in Steger's dismissal, according to its ruling.
Still, plaintiffs attorney Steve Emmert wrote in an email Wednesday that "we will prepare and file a petition for rehearing, as the rules allow."
Robelen, the chief deputy clerk, said the plaintiffs have 14 days to petition the court to reconsider their argument to reinstate Steger. That petition will go, not back to the writ panel but on to the full court.
If even one of the justices wants to take the plaintiffs' case, the court would grant the appeal, Robelen said.
Two justices - William Mims and Elizabeth McClanahan - have already recused themselves from both appeals, according to court documents. No reason for the recusals was given.
Under court procedures, two senior justices - retired members of the court who sit on writ panels and fill in for justices - will be assigned to take their places.
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