Could Virginia Tech Be Held Liable for Cho Seung Hui's Shootings, If An Investigation Were to Reveal It Had Been Negligent?
The Unfortunate Answer

By ANTHONY J. SEBOK
Tuesday, Apr. 24, 2007

In the aftermath of the tragedy at Virginia Tech, many commentators have begun to ask whether university officials could have done more to prevent the gunman, Cho Seung Hui, from killing 32 faculty members and students and himself, and wounding others. In this column, I will explore the possible legal basis for holding Virginia Tech liable for Cho's actions.

Importantly, I will not make any claims about Virginia Tech's actual responsibility - just its potential responsibility, contingent on the results of an investigation. Plainly, Cho, who is now dead, was the one most responsible for the events of April 16. No one can or should assume that anyone else bears responsibility for what he did. Only after a careful investigation can that sort of judgment be made.

But once an investigation is complete, what will it tell us? If it turns out that there was negligence, or worse, on the part of the university or others, can the wounded victims or the families of the deceased victims of the attack sue Virginia Tech for damages?

The answer is not very reassuring for the families or the surviving victims, and it raises important questions about whether we want to insulate the state from accountability in court for its mistakes.

Can Virginia Tech Be Held Responsible to Students Simply as a Landowner?

In thinking about liability for the shootings, we must distinguish between two very important questions: First, when, if ever, is a university responsible for the actions of a killer on its own campus? Second, if the university is a state institution, is its liability greater or less than if it were a private university?

The answer to the first question is relatively well-established in Virginia. Virginia is notoriously pro-defendant in matters of tort law. (For example, it still adheres to the doctrine of contributory negligence, which bars a negligent plaintiff from recovering damages.) Yet even Virginia imposes limited duties on universities to protect their students.

The first of the grounds for this duty simply comes from the fact that a university is a landowner, and landowners have certain duties to an invitee (that is, a person invited to enter upon the property for business or educational purposes). For example, in the 2001 case of Thompson v. Skate America, Inc., the Virginia Supreme Court held that a skating rink operator could be held liable for an assault on a patron by another patron if the attacker was "known to [the skating rink] to be violent and to have committed assaults on other invitees on its property in the recent past."

Indeed, universities have greater duties than the typical landowner, under Virginia law. In its 1989 decision in Wilson v. Commonwealth of Virginia et al., a Virginia lower court held that "a student living in a college dormitory should reasonably expect a greater degree of protection from the University than would a tenant who leases residential property from a landlord in the open market."

The problem with invoking the landowner liability cases with respect to the tragedy at Virginia Tech, however, is that Virginia courts have been very conservative in applying the doctrine. Even in Thompson, the skating rink case mentioned above, the court limited the landowner's duty to protect invitees to imminent criminal assaults. And in Wright v. Webb, for example, the Virginia Supreme Court held that a motel owner was not responsible for a criminal assault that might have been prevented by better security unless "the owner knows that criminal assaults against persons are occurring, or are about to occur" on the premises.

Possibly, Virginia Tech's awareness that a shooter was on campus, as evidenced by the mass email it initially sent to students after the first two shootings, could be argued to constitute knowledge that additional, imminent shootings were "about to occur." Unfortunately, however, it seems that, in fact, Virginia Tech did not expect additional shootings - even if it should have -- when it sent the email. Otherwise, it presumably would have cancelled classes and warned students to barricade themselves inside their rooms.

Another Possible Basis for a Duty: A Special University/Student Relationship

There is a second ground for a duty to protect students: The Restatement (Second) of Torts §315 - which Virginia follows -- imposes a duty to protect or aid when there is either a "special relationship" between either the victim of an attack and the defendant, or the defendant and the attacker. Virginia Tech had a special relationship with both the students whom Cho shot, and Cho himself, for he was also a student.

As a federal district court noted in 2002 in Schieszler v. Ferrum College et al., Virginia common law would probably apply the Restatement rule to universities. The Schieszler case was based on the following allegations: Ferrum College freshman Michael Frentzel exhibited suicidal behavior. The campus police had to break into his room; found him with bruises on his head; and took him to the Dean of Students. But the Dean merely asked him to sign a statement that he would not hurt himself, and allowed him to return to his room. Within a few days, Frentzel hanged himself. The federal court held that Ferrum College owed a duty to its students to protect them from physical injury on campus - including injury at their own hands.

(The most infamous cases involving university liability for failure to protect students typically arise from cases involving suicide. MIT, for example, was sued by the parents of Elizabeth Shin, who committed suicide despite the fact that, two days earlier, the campus police and health center were notified of her threats to do so. After MIT lost its motion to have the suit dismissed, it settled the case.)

If Virginia Tech Has a Duty, How Much Would It Have to Do To Satisfy It?

Schieszler clearly implies that a university has a duty to protect students (and most likely staff) from injury on campus caused by either another student or a stranger. But how much does a university have to do to satisfy the duty?

To establish liability, the plaintiffs would have to prove that the steps the university took before and during the day of the attack were inadequate, and that there were alternative measures, reasonably available to the university, that it could have implemented. Many have suggested that the university's initial email to students after the first shootings was inadequate, and that a much strong warning email should have been sent immediately. Plaintiffs could also argue, going back further in time, that it should have been plain to the university that Cho was enough of a threat to be expelled.

An interesting comparison can be made with the California Supreme Court's ruling in Tarasoff v. The Regents of the University of California. There, the court ruled that therapists whose patients inform them of a credible, immediate threat to a third person, must call the third party and tell them of the threat, but it did not require that the therapist do anything beyond that. That 1976 decision set off a firestorm of controversy, because many felt it violated psychiatrist-patient privilege. In Cho's particular case, it seems that he refused counseling when it was offered to him, and thus, no privilege applied. But in the case of another school shooter (or potential suicide) who had received university counseling, the privilege question might occur.

Let's suppose Cho had, in fact, gone to counseling, and that his therapist, concerned about his threats about certain students, warned those students about the threats. To fulfill its duty to take reasonable care, would the university have to assign security officers to follow those students - or Cho himself - around? And what if the threats were more general, or to an entire class full of students? Would the university have the duty to expel Cho and remove him from campus?

The Americans with Disabilities Act Was No Barrier to Expelling Cho

The answer to that question isn't clear - but it is quite clear that the university could have legally opted, if it so chose, to expel Cho.

It has been suggested in the media that certain civil rights laws, such as the American with Disabilities Act (ADA) prevent a university from taking steps to remove a student who exhibits violent tendencies. However, this is almost certainly an urban myth. The ADA provides for reasonable accommodation of disabilities; it doesn't require the harboring of violent persons who present risks to others.

For example, in 1999, in Ascani v. Hofstra University, the U.S. Court of Appeals Second Circuit rejected any ADA challenge to a decision by Hofstra to expel a graduate student who had threatened a professor.

The Second Key Question: Does It Matter that Virginia Tech Is a Public University?

Let's suppose for a moment that the wounded victims and the families of the deceased victims can, in fact, prove that Virginia Tech failed to take adequate steps to protect its students. Unfortunately, their case would still fail - for the doctrine of sovereign immunity makes it almost impossible for the plaintiffs to collect significant damages even if they can prove negligence.

Sovereign immunity literally means that the government cannot be sued for its torts, even if it acts negligently (or worse). Originating in England before the American revolution, the doctrine has been largely abandoned in the U.K. and Europe. But it is alive and well - though partially waived by both the federal government and the states -- in the United States.

Virginia's waiver of sovereign immunity is pretty typical: The Virginia Tort Claims Act, Code §§ 8.01-195.1 through -195.9, states that "the Commonwealth shall be liable for claims for money . . . on account of . . . personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth . . ., if a private person, would be liable to the claimant for such . . . injury or death."

You might think that Virginia Tech could be sued under this waiver. But you would be wrong. As the Virginia Supreme Court noted in the 2004 case of Rector & Visitors of the Univ. of Va. v. Carter, only the Commonwealth of Virginia has waived its sovereign immunity, but the Commonwealth's agencies - such as the University and its various schools -- have not.

Thus, in that case, Tina Carter's medical malpractice suit against the University of Virginia Medical School was dismissed -- although she, in theory, could have then refiled the suit against the Commonwealth of Virginia, if it was not barred by the statute of limitations. That's because the Commonwealth of Virginia can be sued for the actions of its agents under a theory of vicarious liability.

Couldn't the Virginia Tech plaintiffs just sue the Commonwealth, then? Yes, but here is where the final indignity comes in: The same Act limits the liability of the Commonwealth to $100,000 per tort. This amount, while not insignificant, is dwarfed by the amount of damages that might be won in a wrongful death claim brought on behalf of a college student or her surviving family. (By comparison, the 9/11 Victims Compensation Fund, which I have discussed in earlier columns such as this one, provided a minimum of $250,000 to the victims' families, and in the case of young people who would have looked forward to long and lucrative careers, often much more.)

The Best Potential Basis for Suit: Evidence of Gross Negligence, If It Arises

In the end, the only realistic way for the plaintiffs to receive anything like the amount of the damages they have actually suffered, is to show that Virginia Tech acted with gross negligence.

As a Virginia-based federal court held in the 1995 case of Coppage v. Mann, sovereign immunity does not protect doctors employed by the state from tort suits if they acted with gross negligence. So too, the doctrine would presumably not protect university administrators and other employees if they acted with gross negligence. Nor would it protect their employer, even if it were an agent of the state.


In sum, if an investigation reveals negligence by Virginia Tech, and it can plausibly be argued to be gross negligence, then perhaps the wounded victims and the families of the deceased will be able to recover for the damages they actually incurred. But the law - thanks to the archaic sovereign immunity doctrine - sets the bar too high. Proof of negligence, even short of gross negligence, should be enough.


Anthony J. Sebok, a FindLaw columnist, is a Professor at Brooklyn Law School. His other columns on tort issues may be found in the archive of his columns on this site.