Va. SC calls for new trial in lawsuit over school fight

Jessica M. Karmasek Apr. 30, 2012, 11:00am


RICHMOND, Va. (Legal Newsline) - The Virginia Supreme Court has remanded a case against an assistant principal by a former high school student, who was injured in a fight at the school, to a lower court for a new trial.

Gregory J. Gagnon, a student at Gloucester High School, sued Assistant Principal W. R. Travis Burns, fellow student James S. Newsome Jr. and Newsome's sister, Christine.

Another student at GHS, Shannon H. Diaz, met with Burns and Principal Layton H. Beverage on the morning of Dec. 14, 2006.

After the meeting, Diaz told Burns that -- according to messages sent through the social networking website MySpace -- Gagnon was going to get into a fight with another student sometime that day.

Burns wrote down Gagnon's name and told Diaz that he would "alert (his) security and we'll make sure this problem gets taken care of." Burns did not, however, act on Diaz's report that morning.

About two hours later, Gagnon was approached by another student, Newsome, in the school's cafeteria. The two exchanged words, and Newsome's sister, Christine, who was standing behind Newsome, said, "either... hit (Gagnon) or walk away."

Newsome punched Gagnon once in the face, knocking his head back into a brick pillar.

In 2009, Gagnon filed an amended complaint against Burns, Newsome and Christine, asserting claims for simple and gross negligence, assault and battery.

He sought judgment against all three defendants, jointly and severally, in the amount of $9 million.

Burns, in response, filed a demurrer and plea in bar, arguing that he owed no legal duty to Gagnon and that he was immune from Gagnon's simple negligence claim under a state statute and the common law. In addition, he contended that Gagnon's allegations were insufficient to support a claim against him for gross negligence.

The jury returned a verdict in favor of Gagnon against Burns in the amount of $1.25 million, against Newsome in the amount of $3.25 million and against Christine in the amount of $500,000.

In a post-trial motion, Gagnon asked the Gloucester County Circuit Court to hold the defendants jointly and severally liable for the total $5 million verdict. He argued that his injury was indivisible and that the jury found all three defendants liable as joint tortfeasors.

The circuit court denied the motion.

Burns and Gagnon filed cross-appeals with the state's high court.

Burns challenged the circuit court's ruling on the issues of legal duty and sovereign immunity. Gagnon challenged the court's ruling on the issues of gross negligence and joint and several liability.

Justice LeRoy F. Millette Jr., who authored the Court's April 20 opinion, explained that there is no evidence in the record suggesting that Burns knew, or should have known, that Gagnon "was in great danger of serious bodily injury or death."

"Again, all that Diaz told Burns was that, according to messages sent through MySpace, there would be a fight involving Gagnon sometime that day," Millette wrote in the Court's 35-page ruling. "Moreover, Burns was not present when Newsome punched Gagnon; thus, unlike the deputy sheriff in Burdette, Burns was not in a position to step in and stop the fight."

The Court declined to expand its "special-relationship" jurisprudence to include the principal-student relationship.

"The reason for our hesitation, we have explained, is that 'it is not in society's best interest to subject public officials to potential liability for every action undertaken,'" it wrote.

By law, Gagnon's parents had to send him to school, where it was the responsibility of Burns and other school officials to supervise and ensure that "students could... have an education in an atmosphere conducive to learning, free of disruption, and threat to person." Thus, Burns owed a duty to supervise and care for Gagnon, the Court explained.

However, that does not mean that the assistant principal was an insurer of Gagnon's safety, it added.

Gagnon argued that Burns assumed a duty to investigate Diaz's report and notify school security about the fight under the principle of assumption of a duty, because Burns told Diaz that he would "alert security," "look into it" and "take care of it."

"While there is evidence in the record pertinent to the issue whether Burns assumed this duty, neither the circuit court at the plea in bar hearing nor the jury at trial made such a finding. In truth, they were never asked to," Millette wrote.

"Because we cannot decide the issue as a matter of law, it is to be decided by the fact-finder on remand."

The Court stressed that Burns can only be subject to liability for Gagnon's physical harm if Gagnon proves first that Burns undertook to investigate Diaz's report and notify school security about the fight, and then either: that Burns' failure to exercise reasonable care in performing his undertaking increased the risk of the harm; that Burns undertook to perform a duty owed by Diaz to Gagnon; or that the harm was a result of Diaz's or Gagnon's reliance upon Burns' undertaking.

As to whether Burns is entitled to the protection of sovereign immunity, the Court said the circuit court erred in holding that Burns was not entitled to common law immunity from Gagnon's simple negligence claim.

The Court said it also believed the evidence was sufficient to submit the question whether Burns was grossly negligent to the jury.

"In our view, the fact that Burns did not respond to Diaz's report -- or at least did not respond in time to stop the fight -- could possibly lead a jury to conclude that he acted in 'utter disregard of prudence amounting to a complete neglect of (Gagnon's) safety,' and thus was grossly negligent," Millette wrote.

"We thus hold that the circuit court erred in refusing to instruct the jury on gross negligence."

Because so, the Court reversed the circuit court's decision in part and remanded the case for a new trial, limited to Gagnon's gross negligence claim against Burns.

The Court did not -- in light of its decision -- reach the question of whether intentional and negligent tortfeasors can be held jointly and severally liable.

From Legal Newsline: Reach Jessica Karmasek by email at

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