These are excerpts from a Virginia Circuit Court decision September 29, 2008

On 18 April 2006 plaintiffs shot Karen Phillips husband her on the property of their employer, BJ's Wholesale Club, Inc. This violent attack was the culmination of a continuing pattern abusive and threatening of her husband, and many of these previous instances of abuse took place at BJ's-property. Phillips man they pulled once from the memory of her hair; and on many other occasions, store security personnel had the plaintiff's husband of BJ's-property to the defendant, Barbara Harris, a BJ Manager removed. Only a few days before the final assault, Harris of the plaintiff prohibited from memory man.

On 18 April 2006, called Mr. Phillips Harris several times required on the day of the attack, speak to his wife. While these calls threatened he to find also the BJ-memory, despite its having been banned come from the. Later on that day, Mr Phillips entered in the store, Harris confronted and called for, to his wife you find under. He finally leave the store, but remained in his vehicle in BJ's parking lot. As plaintiff of her husband vehicle noticed on the parking lot, tried without success to her sister, calling, which was picking up from work at night to warn her of his presence. Shortly thereafter, her sister was, and they shot the plaintiff's husband fatally in the BJ parking. He joined the BJ's store, his wife, and it is also shot up. Plaintiff survived the shooting, but sustained serious wounds.

March 3, 2008 plaintiffs filed their appeal, the damages in personal injury claims in the circuit court for the city of Norfolk. Although she was injured by her husband's criminal acts, she claimed that the defendants are also responsible for their injuries. The lawsuit claims that their duty to protect injured BJ's and Harris and warn them of the danger of her husband. This obligation, it claims, is present on the basis of a special relationship between you and the respondent.

31 The defendant submitted March, 2008 a Demurrer and a supporting memorandum, a memorandum filed the plaintiffs in the opposition. June 2, 2008 heard the Court argument in the Demurrer.

Courts consider four factors, Virginia if it is determined whether an employer-employee relationship exists.

At common law, to the question whether the relationship of master and servant exists, is it four elements which are considered: (1) selection and engagement of servants; (2) the payment of wages; (3) makes the dismissal; and (4) the power of control over the server action.

Smith v. grenadier, 203 VA. 740, 746, 127 H.e.. 2d 107, 112 (1962). Harris, as plaintiff, was BJ's staff, although they had different tasks. Of course, it is not the applicant's employer, and pays no wages or salary to the claimant.

Virginia courts also require existence of a contractual relationship between the parties before their relationship as one of the employer-worker can be set. Humphrees v. Boxley Bros. Co., VA 146. 91, 97, 135 s.e. 890, 892 (1926) ("[t] he relationship of employer and employee can only exist, by contract, either express or implied."). See also the Virginia workers' Compensation Act, the staff as "[e] very person... in the service of another under any contract rental or apprenticeship, written or implied." defined VA. CODE ANN § 65, 2-101 (2008) no explicit or implied contractual relationship exists between Harris and Phillips.

The relationship between Harris and Phillips none of the definitions of the employer-worker in Virginia recognized meets; Therefore, there is no special relationship between them. Without a special relationship, it can not be liable for acts of third parties. A.h. v. Rockingham Publ ' G, 255 VA. 220, 495 S.e.5. 2d to 485. The suit alleges not required may have injured Harris, which is outside the scope of their authority as a Manager for BJ's. The duty of the special relationship stems from the employer-employee relationship, the between BJ's and the applicant. There is no special relationship between the plaintiff and Harris, Harris' Demurrer can be maintained and the complaint will be dismissed as to her.

On the other hand, there is a special employer employee relationship that the Supreme Court meets tests in grenadier and Humphrees between BJ's and Mrs Phillips. Had BJ's makes, Phillips rent, paid their wages, she could be dismissed and had the power of control over their actions at work. Grenadier, 203 VA at 746, 127 h.e.. 2d 112. You enjoyed a contractual employment relationship with BJ's. Humphrees, 146 VA at 97, 135 s.e. to 892. The existence of this special employer employee relationship between plaintiff and BJ's imposes duty on BJ's to protect them. "The employer proper controls lead to discover risks at the place where employees work needed, and finding the existence of threats that the employer must take the appropriate measures for the safety of the staff." Norfolk and Western ry. v. Hodges, 248 VA. 254, 260-61, 448 S.e.5. 2d 592, 596 (1994) (citing Williams v. Atlantic coast line r.r, 190 f. 2d 744, 748 (5th Cir. 1951)).

    Once a duty was set up, the next question, whether the duty has been breached is. This study enabled predictability:

Although the required special relations with regard to the defendant is resident's potential role, to protect or a plaintiff the criminal behaviour of a third, warn, this duty, as in other cases negligence is not without limitations. A court must still determine whether the risk of injury from the such conduct of the plaintiff that the defendant knew or was reasonably foreseeable.

A.h. v. Rockingham Publ ' G., 255 VA. 220, 495 S.e.5. 2d to 485. See also Floyd S. Pike electrical contractors, Inc. v. Commissioner, DEP't labor & industry, 222 VA. 317, 322-323, 281 S.e.5. 2d 804 (1981) ("[a] n employer... must take no action to prevent dangers that do not generally foreseeable, but at the same time must including idiosyncratic behavior of an employee, employers do everything it practicable, driven by foreseeable prevent....") ((cited General Dynamics v. safety & occupational health, 599 f. 2d 453, 458 (1st Cir. 1979))).

Plaintiffs claimed, because the danger was foreseeable by her husband, should warn BJ's for their failure, be held liable. Usually a question of fact is whether injuries are predictable. "Negligence, contributory negligence, direct cause and predictability are typically questions for the jury;" "but if appropriate men not on facts and conclusions could not accept such questions to questions of law for the Court." Henley v. Davenport, 213 VA. 803, 805, 196 S.e.5. 2d 1, 3 (1973). When a court addresses this question on Demurrer, is the plaintiff "in favor of all reasonable inferences claim, that can be drawn from the alleged facts." Hamlet v. Hayes, 273 VA. 437, 439, 641 S.e.5. 2d 115, 116 (2007). In this case, the facts in the complaint could be argued that BJ's have planned the attack, identification of "reasonable men" should support. Henley v. Davenport, 213 VA. on the 805, 196 s.e.5. 2d on the 3. Therefore, can the case against BJ's procedure, and repeals the Demurrer.

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