Earlier this week a Montgomery County jury, after a two-week trial, found that Virginia Tech is responsible for the deaths of Erin Peterson and Julia Pryde during Seung-Hui Cho’s shooting rampage on April 16, 2007. The jury awarded damages of $4 million for both families. A pretty good article on the whole thing can be found in the Chronicle of Higher Education.
Many people have asked me some interrelated questions:
- How could Virginia Tech be held responsible for the actions of a madman?
- Why was the award so high?
Negligence is defined as a failure to use ordinary care in the exercise of a legal duty. Before we look to the question of the use of “ordinary care”, let’s consider whether Virginia Tech had a legal duty to Erin Peterson and Julia Pryde.
Virginia Tech is governed, first, by state law. Since at least 1919, the General Assembly imposed on the Board of Visitors of Virginia Tech the duty to “protect its students and keep them safe.” Va. Code §23-122.
In 2006, the General Assembly passed a law that required universities wishing to remain under the Financial Restructuring Act to adopt a resolution to “commit to the Governor and the General Assembly” that it would “seek to ensure the safety of the Commonwealth’s students on its campus”. Virginia Tech adopted such a resolution, and made the required commitment at its Board of Visitors’ meeting of June 12, 2006. The University officials who were called as witnesses by the Plaintiffs’ lawyers were all present at that meeting. So the girls’ families argued that Virginia Tech had a legal duty to try to keep its students safe.
But does that extend to a duty to protect the students against the violence of a crazy person with a gun? Not generally. But here the key was the delay between when the first word came in — at 7:24 AM — and when the warning was sent out — 9:50 AM, or 10 minutes after Seung-Hui Cho had begun his rampage in Norris Hall. The plaintiffs said that they misunderstood what had happened, that they knowingly put out incorrect information to the outside world to reassure the public, and that although the administration claimed that they had no time to put out an e-mail blast that there was a gunman on the loose, they had time to contact the Governor and to tell him that they had the situation under control. Tech maintained that they acted reasonably under the circumstances when they concluded that what they had on their hands was just a domestic dispute, and not a crazy person wandering campus with a gun, that given their conclusion, they acted reasonably, and that it simply was not foreseeable that there was a crazy gunman on the loose who might shoot innocent people..
So the first legal issue for the plaintiffs was to show that Tech had a duty to do what it could to protect its students against a known danger. As a general proposition, this is not a controversial issue in the law. If someone with a duty to protect another against a known danger fails to use ordinary care in doing so, that person can be found to be negligent, and responsible for the injuries caused by that known danger.
Let’s take a simpler, less emotionally-charged case. Let’s say that there is a hole in the sidewalk. The University knows that the hole is there. They know that if they put up a sign, or an orange cone, or yellow tape, they can warn people walking on the sidewalk of the problem. But the University, even though it knows that there is a danger, does nothing to warn pedestrians of that danger. If a pedestrian is walking on the sidewalk and doesn’t know the hole is there, and falls and hurts himself, the University is liable. If a pedestrian is walking on the sidewalk and falls and hits his head and dies, the University is liable. The University is liable for all of the injuries caused by its negligence, even if those injuries are very serious.
At about 2:30 AM on August 21, 2006, two and one-half months after the adoption of that resolution, William Morva — a guy who had escaped from prison and injured during re-capture — escaped from the Montgomery County Regional Hospital by overpowering a hospital guard and killing him with his own gun. That happened a number of miles from Tech, but the Blacksburg PD asked the Virginia Tech campus was asked to be on the lookout for Morva. Morva shot and killed a Montgomery County Police Officer, Eric Sutphin, at about 7:15 AM, and Morva was seen fleeing toward the Tech campus. At 8:13 AM a campus wide alert was issued via blast email that the escaped prisoner had been seen on campus near the intersection of Huckleberry Trail and Tech Center Drive and that he was armed and dangerous.
August 21, 2006, had been the first day of class for Erin Peterson (one of the students who was the subject of the suit). Upon receiving the blast email she called her father who advised her to stay in her dorm room, lock her door, close the blinds [she lived on the first floor] and stay away from the windows. The other student who was the subject of the suit, Julia Pryde, was a graduate student living off campus. When she and her roommate got the email they decided not to come to the campus until after the “all clear” was given. All students were urged to return to their dorms or off-campus apartments. Staff were told to remain in their offices, and by 1:00 PM they were being evacuated from campus. Morva was arrested near the campus at about 3:50 PM. See a more detailed timeline here.
On April 2, 2007, there was a bomb threat on campus in one building; a note said that the bomb was set to go off “this evening.” The University alerted the campus, evacuated the building, cordoned off the area, rerouted traffic and brought in reinforcements and a bomb sniffing dog to search the building despite the fact that they were confident it was only a hoax. They thought it too dangerous to assume it was a hoax and do nothing.
On April 13, 2007, another bomb threat, composed in the same printing style as the April 2 note and initialed in the same manner, said that bombs had been placed in three buildings and set to go off “this weekend”. Despite their high confidence that this, too, was a hoax, they followed the same procedure and notified the campus, evacuated the buildings, cordoned off the area and re-routed traffic. Again it was a hoax.
Why is all of this history relevant? Remember that Tech’s argument was that it was not foreseeable that they had a crazy person with a gun roaming the campus. And the recent history had shown that it was not only foreseeable, but it was foreseen. William Morva never made it onto the Virginia Tech campus, but the place was locked down and evacuated the year before. Even in the case of bomb threats where hoaxes were strongly suspected, buildings were evacuated and areas of the campus were shut down. The logical question was, “Why didn’t they do that this time?”
Three days later the police took a call that it sounded like a student had fallen out of her top bunk bed. When the police arrived at that room at 7:24 AM they found the door unlocked, a woman with a bullet wound to the head lying near the window and a man who had been shot in the face lying against the inside of the door. The man, in his boxer shorts, was the Residence Advisor who lived next door. His room door was open and his pants were hanging over a chair. He had apparently heard the young woman next door scream or heard the first shot and was killed when he ran into her room to help or save her.
Thirteen bloody footprints left the room headed towards a stairwell. On the floor in the dorm room were two spent 9mm shell casings, indicating that the assailant was probably armed with a semi-automatic pistol. No one saw him in the corridor before or after the shooting. Despite a lockdown of the dorm, he was not found in the 600-room dorm, and his identity and whereabouts remained unknown until after the next shootings.
When the Virginia Tech Chief of Police arrived, he concluded that the fact that it was a male and a female in the same room and that he was in his boxer shorts meant that the shooting was “possibly, maybe a domestic shooting” — that perhaps a boyfriend of the shot girl may have caught the two in some compromising situation [they were at opposite ends of the room and she was fully clothed]. He told the University President his conclusion in a 3-4 minute phone call. The President decided that the potential that it was a domestic shooting meant the campus didn’t need to be warned that there was a gunman on the loose and perhaps still on campus, and that he was armed and dangerous. The Chief of Police had never worked a homicide and the investigator he called over from his own department had never worked a homicide. They guessed it was a boyfriend shooting, and that guess became their mantra.
Unfortunately for the next 32 shot and killed, it was a bad guess.
For a while the President and his assembled Policy Group considered letting the campus know that there had been a shooting on campus with one dead and one wounded, gunman on the loose [or “we’re still searching for the shooter”], but scrubbed that idea and issued a notice that only said there had been a “shooting incident” at West Ambler Johnston residence hall, leaving out any mention of the killing and wounding of two students. Even that notice did not get out until 9:26 AM, more than two hours after the first shooting. Virginia Tech officials finally issued a specific warning that a “gunman is loose on campus” through emails to 37,000 people at 9:50 AM, nearly 10 minutes after Cho began the Norris slaughter.
Part of the problem for the Tech administration was that it seems that the President and the Vice President for University Relations got together a concocted a fabricated timeline, a timeline which the President read verbatim at a press conference at 7:40 PM. In that time line he said that the police had a person of interest at 7:30 AM. The only “person of interest” — the boyfriend — wasn’t identified until 8:30 AM; by 9:22 AM, he had been pulled over in a traffic stop. He was headed back to Tech from his 8 AM class at Radford University to look for his girlfriend, whom he had been told in a cell phone call had been shot. He was upset and crying and was wearing boots which didn’t bear a tread like the bloody footprints. The Radford Police Department confirmed that he had been at his 8 AM class, but had left after the phone call. At 9:30 AM [before the Norris Hall shootings] the Policy Group was advised that they had the boyfriend, but he was likely not the shooter.
Despite the fact that the timeline was clearly wrong, the prepared statement made at the press conference that afternoon said Tech had in fact informed the students of the homicide in the dorm and told them of the scene at the dorm — both of which were fictitious.
When Governor Kaine convened his investigative panel days later, the panel was told by Virginia Tech that law enforcement authorities had detained a “person of interest” as early as 7:30 — which they clearly knew by that time was false. This lie was persistent — the Tech administration appealed the U.S. Department of Education’s Clery Act [timely warning] violations as of April 26, 2011, stating as fact that “Immediately up commencing their investigation the police had a person of interest” — the old 7:30 AM “person of interest” fiction. In that same filing they criticized the Department of Education for not consulting the Virginia Tech Police Department because “it was the consensus of law enforcement that” after the first shootings “the perpetrator had fled the scene”. During the lawsuit they admitted they had no idea who the perpetrator was or his whereabouts, and further acknowledged that a person of interest is one who needs to be found and interviewed [he was] before it could be determined whether he might be a suspect.
Two days after the shootings President Steger personally contacted and engaged a crisis management firm whose “message management” duties included getting the President ready for an April 22 Meet the Press. When Tim Russert asked him to compare the 2006 warnings about the escaped prisoner with the absence of a warning in 2007, Steger replied: “Mr. Russert, you need to understand that when the second shootings broke out we had a suspect in custody being interrogated.” He meant the boyfriend, who — though strictly speaking was still in custody when the next shootings broke out — had already been cleared of involvement. At almost exactly the time of the second shootings, the boyfriend was left in his stocking feet [the police took his boots for testing despite the dissimilar treads], handed the keys to his truck and wished “good luck with your girlfriend”.
Steger fired the first crisis manager within a couple of weeks, hired Burson Marsteller to do the university PR, and engaged in polling to see what the public thought about the absence of a warning after the first two shootings. All questionnaires used in the polling had to be client-approved; the client was Virginia Tech and the contact points were the President or his V-P for press relations, Larry Hincker. The first poll draft asked those to be polled what they thought about the absence of a campus-wide alert for two hours after the first shootings. That question never made the final cut. Instead, those polled were read the following statement before being asked if they were satisfied or dissatisfied with Tech’s response to the first shootings: “Immediately following the first shootings the university got on its loudspeaker system to warn the students to stay in their buildings” — another complete lie.
Then two more polls were conducted – just before the issuance of the report of Governor Kaine’s Panel and just after. In those polls the question was posed: “Should Virginia Tech have given a warning following the first shootings regardless of was it justified in not giving a warning because police believed they knew who had committed the crime and the police had a suspect in custody at the time the second shootings broke out?” In the lawsuit they admitted they had no idea who had committed the first shootings and the “suspect in custody” was the “person of interest” who had already been cleared of the crime.
So the starting point for the jury’s take on this case is that the Tech administration began the case with no credibility.
Probably the ending point for the jury came when Virginia Tech’s lawyer, former Attorney General Bill Broaddus, asked the Virginia Tech Chief of Police:
Q. “Given what you know today, given 20/20 hindsight, would you do anything differently than you did on April 16, 2007 [the day of the shooting]?
There has been a little confusion about the amount of the damages. The jury awarded $4 million to each family. But there is a statute that says that the recovery is limited to $100,000, unless there is insurance for more than that figure. [Experts on suing state actors believe that the trial judge erred in not allowing the suit to go forward against individuals who made mistakes that day; there is no limit to a recovery against them. And you have to remember that for things that the individual employees might do in the course of their employment that cause harm, the state’s insurance will cover them.] I have been led to believe that the insurance is limited to $100,000; if so, then $100,000 per family is all that would be awarded. Sources who know these things say that the costs of litigation for the attorneys is almost $200,000. So if the recovery is limited to $100,000, it is highly likely that neither the families nor the lawyers will see much of anything. The two families turned down a guaranteed payout from an $11 million fund created in 2008 for the victims. That fund was split between 24 families. Erin Peterson’s parents are not sorry:
When you know that something is right you’re not deterred from your course… We wanted the truth from the very beginning and we got it. All I know is today we got what we wanted.
We were looking for truth for a long time. We persevered and we got some truth today.
Both sides are talking about appealing different pieces of this case.