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Lawyers Behaving Badly Again: Virginia Tech Shootings and Litigation An article appeared in the local Charlottesville paper on Friday, September 7, 2007, concerning seven families of students who were killed at Virginia Tech on April 16, 2007. They have hired an attorney who is considering litigation against Virginia Tech. The paper states that the attorney said the report of the commission appointed by Governor Tim Kaine provided information which indicated that there might have been negligence in the handling of the events of that day. The report's summary states at item 12 that the Virginia Tech Police Department failed to request the Virginia Tech policy group to issue a campus wide warning about the shootings at West Ambler Johnston. Item 13 of the summary states that the policy group failed to issue an all campus notification about the shootings. These are the two principal findings which might suggest negligence. Other summary statements indicate some misunderstanding about the rights under the Federal and state mental health laws. However, those statements do not indicate a potential significant basis for any potential claim of negligence. Looking at the detail information (Chapter VII) about what was known soon after the initial shootings and before the shootings at Norris Hall, the only significant factual statement which would appear to be the basis for the two summary statements is that the police were wrong in believing that the shooting involved a domestic dispute. In this regard, the police also believed that the shooter was no longer on campus. However, that same detail says that the belief that the shooting involved a domestic dispute was reasonable. Classically liability for negligence in a civil case requires four things: (1) a duty on behalf of the person who is claimed to be negligent; (2) a breach of that duty; (3) harm to the individual to whom the duty was owed; and (4) the breach being the proximate cause of harm which occurred. The first question then is whether Tech had any duty to act under the circumstances. The University has a procedure for providing notification to students of events on campus which might put students in danger. This procedure is one that was put in place by the University voluntarily. There is no duty to provide such a procedure. There is also no duty to protect the students from all possible problems which might occur on campus. The University does not stand in the place of the the parents. The concept of in loco parentis was abolished years ago. Thus, the first problem with claiming possible negligence is that there was no duty which was breached. If a suit could get beyond the initial requirement that there must be a duty, then the next requirement is that the duty must have been breached. If, as stated in the report, the belief of the Virginia Tech Police Department concerning the nature of the first shooting was reasonable, then the non-existent duty was not breached. Just because hindsight can now tell us that the "reasonable" belief was wrong does not mean that any non-existent duty was breached.1 Finally, the biggest problem is that the non-existent breach of the non-existent duty did not cause the harm. There was an intervening independent actor over which the University had no control, namely Cho. The alleged failure to provide the campus wide notification, even if it involved a breach of a duty, was not what caused the harm. Another thing to consider is the practical aspects of claiming that what the University did caused the deaths of these students. The Virginia Tech campus has over 100 buildings and 2600 acres - over 4 square miles - the size of a small city. There are over 25,000 students. If a shooting occurs four several blocks from where you work, are all of the businesses in the vicinity shut down? Is there even an alert to the businesses and the employees to be wary? Even if the businesses attempt to shut down, are all of the employees always in the building and under lock? What about the customers who are on their way to the buildings where the businesses are located? Is it really reasonable to believe that a warning about the shooting would have resulted in everyone on campus suddenly disappearing leaving only Cho in the open to be apprehended by the Virginia Tech Police Department? In my mind, the effort to try to make a case for restitution out of a situation such as this is just total rent seeking and bottom feeding of the worst kind. Efforts to concoct legal theories out of hindsight in situations such as this and then to seek significant damages against people who did nothing wrong, but acted in a reasonable manner in a very difficult situation, continues to give the legal profession and system a bad name. __________ 1There is no basis for claiming that the failure to have Cho committed or otherwise subjected to greater psychiatric treatment involved the breach of a duty by Virginia Tech. The problems with some of the laws in this area are well documented in the report. In addition, the specific laws concerning notification to others when a person may be a danger apply only when there has been a known threat to do something which the person appears to have the ability to carry out, and then the notice is to be minimal and directed only to the person against whom the threat was made. Such was not the case with Cho.
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