EXPANDED DUTY OF LANDOWNERS TO CONTROL CONDUCT OF THIRD PARTIES ON THEIR PROPERTY
By: Janeen Koch
In order to establish liability for negligence against a landowner, it first must be established that a legal duty is owed. Whether a legal duty in tort exists under a particular set of circumstances has been an issue that the Virginia Supreme Court has often had to grapple with.
Of course, all individuals have a duty to conduct themselves in such a way as not to cause harm to others. But what duty does an individual have to protect others from harm due to the actions of third parties? The Virginia Supreme Court has held that “generally a person does not have a duty to protect another from the conduct of third persons.” See, e.g., Kellermann v. McDonough, 278 Va. 478, 492, (2009). However, as with every rule, there are exceptions. For example, one exception to the general rule is where a “special relationship” exists either between the defendant and the third party, or the defendant and the plaintiff. Some examples of special relationships include an innkeeper and guest, common carrier and passenger, and employer and employee.
This general rule also traditionally applied to landowners. As the Virginia Supreme Court has held, a landowner generally owes no duty to protect others from harm arising from the conduct of third persons on their property.
However, in 2021, the Virginia Supreme Court for the first time recognized an exception to this general rule as it applies to landowners specifically. Shoemaker v. Funkhouser, 299 Va. 471 (2021).
In Shoemaker, the plaintiff’s decedent, Ms. Shoemaker, was accidentally shot and killed while visiting her mother. The shooter was visiting his grandparents who lived next door to Ms. Shoemaker’s mother. The grandparents had given permission to their grandson to shoot targets with a rifle on their property in the direction of the mother’s house. One of the bullets penetrated the walls of the neighboring house striking Ms. Shoemaker and killing her. Ms. Shoemaker’s estate filed a wrongful death action against the grandparents alleging that they were negligent in allowing their grandson to shoot the rifle in the direction of the neighboring house. Citing the general rule, the defendants demurred, contending they owed no duty to their neighbor or her visitors for the actions of their grandson. The trial court sustained the demurrer and the plaintiff appealed.
In overruling the trial court’s decision, the Shoemaker Court adopted §318 of the Second Restatement of Torts which provides:
If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor
(a) knows or has reason to know that he has the ability to control the third person, and
(b) knows or should know of the necessity and opportunity for exercising such control.
Consistent with this section of the Restatement, the Court concluded that now, under Virginia law, “a landowner has a duty in tort to exercise reasonable care to control the conduct of a third party, who has been granted permission by the landowner to use the land, to prevent that third party from intentionally harming others or from conducting himself so as to create an unreasonable risk of bodily harm to others.” This duty is contingent on the landowner: 1) being present; 2) knowing or having reason to know that they have the ability to control the third person; and 3) knowing or having reason to know of the necessity and opportunity for exercising such control.Based upon this legal principle, the Court held that the Funkhousers owed a duty to their neighbors not to grant permission to their grandson to shoot targets on their property in the direction of a neighboring house when they knew or should’ve known that the bullets were likely to strike that house. Additionally, the Court held that although the grandparents were inside their home when the shooting took place, they were nevertheless considered to be “present” to satisfy the requirements of the Restatement. The Court explained that being “present” does not mean standing at the shoulder of the person engaging in the injurious activity. Rather, it only requires being within reach, sight, or call or being in view or at hand. Here, the grandparents were close enough to have had the ability to exercise oversight over the activity and were, therefore, “present.”
At least one Circuit Court decision has been handed down following the holding in Shoemaker. In D.H. v. Trousdell, the Newport News Circuit Court decided in June 2022 that a homeowner owed a legal duty to his neighbor where the homeowner granted permission to Trousdell to aim (but not fire) a loaded rifle in the direction of the plaintiff’s house which was immediately next door. Trousdell fired the rifle which resulted in a bullet traveling through the wall of the plaintiff’s home and significantly injuring the ten-month-old plaintiff.
The Supreme Court’s adoption of this section of the Restatement represents a substantial increase in potential liability for landowners in Virginia. As more cases are decided under this rule, we will all have a better notion of the specific circumstances where the rule will apply and the kinds of situations where homeowners will need to control the activity of their guests.