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Justices closely question both sides during appeals of Virginia Tech shootings case

The court will likely take several weeks to render its written rulings on the two appeals linked to a wrongful death case brought after the April 16, 2007, shootings.

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Friday, September 13, 2013

RICHMOND — Nearly seven years after the April 16, 2007, shootings at Virginia Tech, a wrongful death case brought by the parents of two women slain that day is for the second time in the hands of judges.

The parents of the late Erin Peterson and Julia Pryde traveled to Richmond to hear an hour’s worth of arguments Thursday before the Virginia Supreme Court. Other parents of survivors of the shootings also sat in the courtroom.

Both the plaintiffs and the state have filed appeals of different aspects of the case, which was tried in March 2012 in Montgomery County Circuit Court. The jury found that Tech officials were negligent in failing to warn the campus of a gunman on the loose and awarded the families $4 million each. The awards were later reduced to $100,000 each under a state law that caps damages against the commonwealth.

The defense is asking the high court to set that verdict aside. Meanwhile, the plaintiffs are asking the court to reinstate Tech President Charles Steger as a defendant. He was dismissed on a technicality before the jury trial began, but remained a key witness at the trial.

There are several possible outcomes for Thursday’s appeals. The justices may overturn the verdict, or send the case back to a lower court. If the justices grant the plaintiffs’ request to reinstate Steger as a defendant, the case could also be remanded for a retrial.

“I was just glad to be there. We were there, being heard,” Celeste Peterson, mother of Erin Peterson, said after the hearings Thursday.

“Nobody wants to do this,” she said of the long legal process. “But we were raised to tell the truth and be honest. … We want an honest opinion from the court.”

Peterson said she has not thought about what it will be like if the court overturns the jury verdict, or sends it back to the lower court for retrial.

“It’s the way I live my life now: One day at a time,” Peterson said. “I don’t project forward.”

Both families said they were grateful to the justices for their attention to the details of the case, which was evident in their close questioning of attorneys on both sides during the hearing.

Harry Pryde, father of Julia Pryde, said “it’s not for us to say” how the arguments went today. “We were just here to listen.”

Asked if the long and emotional process has been worth it, Karen Pryde, Julia’s mother, said: “The pain will always be there. But that decision by a jury of our peers, that can never be taken away.”

It will likely take several weeks for the court to render its written rulings on the two appeals, plaintiffs’ attorney Bob Hall said.

“It’s a great big trial record,” he added.

Of the hearings, Hall said the justices were “obviously involved in the case and looking to do the right thing.”

While Hall said his crystal ball was cloudy on how the justices will rule, he had one prediction: “If it’s remanded, we’ll get the same ruling as last time. I’m confident of that.”

Deputy Attorney General Wes Russell argued for the commonwealth. He directed requests for comment to the agency’s press office.

Two justices, William Mims and Elizabeth McClanahan, recused themselves and left the bench Thursday when the Tech case was called. No reasons for the recusals have been given. Mims was chief deputy attorney general for Virginia when the shootings occurred. McClanahan served as chairwoman of the State Council of Higher Education for Virginia in the 1990s, and also served on the board of visitors of the College of William and Mary.

Retired justices Charles Russell and Elizabeth Lacy filled in for Mims and McClanahan.

Julia Pryde and Erin Peterson were two of 30 people killed in Norris Hall on April 16, 2007, about two hours after the same gunman fatally shot two students in the West Ambler Johnston dormitory. An email alert to the campus about the dormitory shooting was delayed for revision by a university executive committee headed by Steger until moments before the gunman opened fire in Norris Hall classrooms.

The Pryde and Peterson families declined to join a multimillion-dollar legal settlement with the state and filed suit on the second anniversary of the killings. Their case was heard over eight days in 2012, resulting in the jury verdict for the plaintiffs.

The state’s argument that Steger, as president of a major state university, is a high-ranking government official and therefore immune to most civil actions was shot down by the lower court judge several times. The justices also questioned that argument vigorously Thursday.

But the central issue in the case remains the verdict and whether it can stand. The key question before the justices is whether university administrators had a legal duty to warn Tech students that a gunman, who had fatally shot two students in a dormitory early that morning, was on the loose. Presiding Judge William Alexander instructed the jury in 2012 that the Tech administration had that duty. But the state is arguing that under the law that duty does not exist. If the verdict is allowed to stand, according to the defense, it will change negligence laws in Virginia.

The question turns on what kind of legal relationship exists between students and college administrators. Is it akin to ancient English common law regarding relationship between a guest and an innkeeper, where the innkeeper is expected to provide protection from reasonably foreseeable danger? Or is it like the relationship between a business owner and an invitee? Under a business relationship, a duty to warn exists only if harm is occurring or is imminent – a much higher standard than foreseeable harm.

On this question, Chief Justice Cynthia Kinser and Justices Bernard Goodwyn and Cleo Powell ping-ponged questions at attorneys for both sides.

Powell asked defense attorney Russell: “If we agree with you” that the standard should be imminent probability of harm, “what do we do? Do we send it back?”

No, Russell responded. The court could decide it on the law itself without remanding it to the lower court.

“What if we decide a duty to warn does exist?” Goodwyn asked.

“Then we turn to the other errors” that the defense alleges Alexander made during the trial, Russell said.

Goodwyn laughed.

But Powell continued to push on whether the decision could be made on the law alone, saying she was concerned the facts of the case would have to be weighed to determine if there was an imminent probability of harm that day. Russell responded that the central question was the duty, which is a matter of law, not of the specific facts of the case.

Then, in a flurry of case law citations, the justices turned to Hall.

Kinser asked: Did administrators have a duty to warn of foreseeable harm, or of the imminent probability of harm?

Hall argued that to the layperson a gunman on the loose constitutes imminent probability of harm. And furthermore, because Tech officials had sent warnings in the years and months leading up to the shootings, they had taken on the duty to warn.

Then Powell returned to the evidence question, asking Hall whether any evidence showing Pryde and Peterson would have received a warning had it come earlier had been presented at trial. Hall outlined the testimony of the parents of Pryde and Peterson about the women’s responses to other Tech email warnings, specifically alerts sent in 2006 about a fugitive accused of killing a police officer that was reported to be near campus. Both women received the warnings and heeded them, their parents testified.

In a two-minute rebuttal argument, Russell told the justices he believed the university had a duty to warn only if officials knew of an imminent probability of harm. And, Russell continued, the information officials had that day did not point to imminent danger.

Furthermore, Russell argued that the plaintiffs presented no evidence to show that the slain students would have received or acted on an email warning on April 16, 2007.

Therefore, Russell said, “the verdict has to be reversed.”

The “acts of a madman” brought this case before the court, Russell argued. “Don’t change the laws of the commonwealth because of the acts of a madman.”

Saturday, September 14, 2013