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

On April 18, 2006, Plaintiff Karen Phillips' husband shot her on the property of her employer, BJ's Wholesale Club, Inc. This violent assault was the culmination of a continuing pattern of abusive and threatening behavior by her husband, and many of these preceding instances of abuse occurred on BJ's property. Once Phillips' husband dragged her from the store by her hair; and on many other occasions store security personnel had removed Plaintiff's husband from BJ's property at the direction of Defendant, Barbara Harris, a BJ's manager. Just a few days before the final assault, Harris banned Plaintiff's husband from the store.

    On April 18, 2006, the day of the assault, Mr. Phillips called Harris several times demanding to speak to his wife. During those calls he also threatened to come to the BJ's store to find her, despite his having been banned from the premises. Later that day, Mr. Phillips entered the store, confronted Harris, and demanded to see his wife. He eventually exited the store, but remained in his vehicle in BJ's parking lot. When Plaintiff noticed her husband's vehicle in the parking lot, she attempted without success to call her sister, who was picking her up from work that night, to warn her of his presence. Shortly thereafter, her sister arrived, and Plaintiff's husband fatally shot her in the BJ's parking lot. He then entered the BJ's store, located his wife, and shot her also. Plaintiff survived the shooting, but sustained severe wounds.

    On March 3, 2008, Plaintiff filed her complaint seeking damages for personal injuries in the Circuit Court for the City of Norfolk. Although she was injured by her husband's criminal acts, she alleges that the Defendants are also liable for her injuries. The complaint alleges that both BJ's and Harris breached their duty to protect and warn her of the danger posed by her husband. This duty, she asserts, exists because of a special relationship existing between her and the Defendants.

    On March 31, 2008, the Defendants filed a Demurrer and a supporting memorandum to which the Plaintiff filed a memorandum in opposition. On June 2, 2008, the Court heard argument on the demurrer.

Virginia courts consider four factors when determining whether an employer-employee relationship exists.

At common law, upon the question of whether the relationship of master and servant exists, there are four elements which are considered: (1) selection and engagement of the servant; (2) payment of wages; (3) power of dismissal; and (4) the power of control of the servant's action.

Smith v. Grenadier, 203 Va. 740, 746, 127 S.E.2d 107, 112 (1962). Harris, like Plaintiff, was BJ's employee, although they had different duties. Obviously, she is not the Plaintiff's employer, and does not pay any wages or salary to the Plaintiff.

    Virginia courts also require that a contractual relationship exist between the parties before their relationship can be designated as one of employer-employee. Humphrees v. Boxley Bros. Co., 146 Va. 91, 97, 135 S.E. 890, 892 (1926) (“[t]he relation of employer and employee can only exist by virtue of contract, express or implied.”). See also the Virginia Workers' Compensation Act, which defines employee as “[e]very person . . . in the service of another under any contract of hire or apprenticeship, written or implied.” VA. CODE ANN. § 65.2-101 (2008). No express or implied contractual relationship exists between Harris and Phillips.

    The relationship between Harris and Phillips fails to meet any of the definitions of employer-employee recognized in Virginia; therefore, no special relationship exists between them. Without a special relationship, there can be no liability for the acts of third parties. A.H. v. Rockingham Publ'g, 255 Va. at 220, 495 S.E.2d at 485. The complaint alleges no duty that Harris may have breached that is outside the scope of her authority as a manager for BJ's. The duty resulting from the special relationship arises from the employer-employee relationship, that is between BJ's and the Plaintiff. There being no special relationship existing between the Plaintiff and Harris, Harris' demurrer will be sustained and the complaint will be dismissed as to her.

In contrast, an employer-employee special relationship that meets the Supreme Court's tests in Grenadier and Humphrees does exist between BJ's and Ms. Phillips. BJ's had the power to hire Phillips, paid her wages, could dismiss her, and had the power of control over her actions at work. Grenadier, 203 Va. at 746, 127 S.E.2d at 112. She also enjoyed a contractual employment relationship with BJ's. Humphrees, 146 Va. at 97, 135 S.E. at 892. The existence of this special employer-employee relationship between Plaintiff and BJ's imposes a duty on BJ's to protect her. “The employer must perform proper inspections to discover dangers in the place where employees are required to work, and after determining the existence of dangers the employer must take reasonable precautions for the employees' safety.” Norfolk and Western Ry. v. Hodges, 248 Va. 254, 260-61,448 S.E.2d 592, 596 (1994) (citing Williams v. Atlantic Coast Line R.R., 190 F.2d 744, 748 (5th Cir. 1951)).

    Once a duty is established, the next question is whether the duty has been breached. This inquiry turns on foreseeability:

Even though the necessary special relationship is established with regard to a defendant's potential duty to protect or warn a plaintiff against the criminal conduct of a third party, that duty, as in other negligence cases, is not without limitations. A court must still determine whether the danger of a plaintiff's injury from such conduct was known to the defendant or was reasonably foreseeable.

A.H. v. Rockingham Publ'g., 255 Va. at 220, 495 S.E.2d at 485. See also Floyd S. Pike Electrical Contractor, Inc. v. Commissioner, Dep't of Labor & Industry, 222 Va. 317, 322-323, 281 S.E.2d 804 (1981) (“[a]n employer . . . need not take steps to prevent hazards which are not generally foreseeable, including idiosyncratic behavior of an employee, but at the same time an employer must do all it feasibly can to prevent foreseeable hazards. . . .” (quoting General Dynamics v. Occupational Safety & Health, 599 F.2d 453, 458 (1st Cir. 1979))).

    Plaintiff claims that because the danger posed by her husband was foreseeable, BJ's should be held liable for its failure to warn. Whether injuries are foreseeable is ordinarily a question of fact. “Negligence, contributory negligence, proximate cause, and foreseeability are ordinarily questions for the jury; but when reasonable men could not disagree on the facts and inferences drawn therefrom, such issues become questions of law for the court.” Henley v. Davenport, 213 Va. 803, 805, 196 S.E.2d 1, 3 (1973). When a court addresses this question on demurrer, the Plaintiff is “entitled to the benefit of all reasonable inferences that may be drawn from the facts alleged.” Hamlet v. Hayes, 273 Va. 437, 439, 641 S.E.2d 115, 116 (2007). In this case, the facts pled in the complaint could support a finding by “reasonable men” that BJ's should have foreseen the assault. Henley v. Davenport, 213 Va. at 805, 196 S.E.2d at 3. Therefore the case against BJ's may proceed, and its demurrer will be overruled.

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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 occurred at BJ's-property. Phillips man she pulled once from memory of her hair; and on many other occasions, shop security staff of the plaintiff man from BJ's had-to statement of the defendant, Barbara Harris, a BJ Manager removed. Only a few days before the final assault, Harris of the plaintiff banned men from the store.

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 his having been banned come from the. Later on that day Mr Phillips entered the store, confronted Harris and demanded to see his wife. He finally leave the store, but remained in his vehicle on BJ's-parking. As plaintiff of her husband's vehicle on the parking noticed tried without success of her sister calling, that she was picking up from work at night to warn her of his presence. Shortly thereafter, her sister came, and they shot the plaintiff's husband fatally on the BJ-parking. He is then the BJ-memory entered, located his wife and shot her also. 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 of criminal acts, it claims that the defendants are also responsible for their injuries. The suit claims that BJs and Harris violated their duty to protect and warn them of the danger of her husband. This duty, she claimed on the basis of a special relationship between her and the respondent before.

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

Virginia courts consider four factors, that in determining whether an employer-employee relationship exists.

To the common law, to the question of whether the relationship of master and servant exists, there are four elements, the as: (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 S.e.5. 2d 107, 112 (1962). Harris, as plaintiff, was BJs staff, although they had different tasks. Of course, it is not the applicant's employer, and pays no wages or salary to the claimant.

Also, Virginia courts require that a contractual relationship between the parties before their relationship as one of the employer-worker can be present. 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, from contract, express or implied."). See also Virginia workers' Compensation Act, the employee as "[e] very person... the service of another under any contract of hire or apprenticeship, written or implied." defined VA. CODE ANN § 65, 2-101 (2008). No express or implied contractual relationship between Harris and Phillips.

The relationship between Harris and Phillips none satisfies the definitions of employer workers recognized in Virginia; Therefore, there is no special relationship between them. Without a special relationship, it may not be liable for actions 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 violated Harris, which is outside the scope of its authority as a Manager for BJs. The duty, as a result of the special relationship arises from the employer-employee relationship between BJs 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 BJs and Mrs Phillips. BJ's makes that rent Phillips, their wages paid, she could be dismissed and had the power of control over their actions at work. Grenadier, 203 VA. in 746, 127 s.e.5. 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 BJs imposes a duty on BJs to protect them. "The employer proper controls lead to discover risks at the place where employees are required to work, and finding the existence of the dangers of the employer employee must take reasonable precautions for the security." 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 the predictability:

Although the required special relations with regard to the defendant is resident's potential role, to protect or a plaintiff warn criminal acts of third parties, this obligation, as in other cases negligence is not without limitations. A court must still determine whether the risk of the applicant's risk of injury to such behavior, 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 not take, to prevent dangers, the not usually predictable, are including idiosyncratic behavior of an employee, but at the same time, employers must do everything to prevent possible foreseeable risks....") ((cited General Dynamics v. safety & occupational health, 599 f. 2d 453, 458 (1st Cir. 1979))).

Plaintiffs who claimed because the danger was foreseeable by her husband, BJs should for their failures, warn liable made are. Whether injuries are predictable, is usually a question of fact. "Negligence, contributory negligence, direct cause and predictability are typically questions for the jury;" "but if appropriate men not on facts and conclusions could not agree 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 conclusions that are drawn from the alleged facts can aspire." Weiler v. Hayes, VA 273. 437, 439, 641 S.e.5. 2d 115, 116 (2007). In this case, pled determination of "reasonable men" could support the facts in the complaint, BJs to have planned the attack, should. Henley v. Davenport, 213 VA. on the 805, 196 s.e.5. 2d on the 3. Therefore, can the case against BJs procedures, and repeals the Demurrer.

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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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