TABLE OF CONTENTS. Motion for Judgment filed August 18, Letter Opinion of the Honorable. William R. Shelton dated January 11,

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2 TABLE OF CONTENTS Appendix Page Motion for Judgment filed August 18, Demurrer filed August 18, Order entered February 8, Letter Opinion of the Honorable. William R. Shelton dated January 11, Written Statement of Facts filed March 8, Assignment of Error

3 r V I R G I N I A: IN THE CIRCUIT COURT OF THE COUNTY OF CHESTERFIELD _j, KARL GUPTON, v. DONALD T. QUICKE, individually and t/a THE COPPERMINE CAFE AND KIMBERLY E. QUICKE, individually and t/a THE COPPERMINE CAFE Serve: Donald T. Quicke Happy Hill Road Colonial Heights, VA (County of Chesterfield) Kimberly E. Quicke Happy Hill Road Colonial Heights, VA (County of C~esterfield) _.. ~ Plaintiff,.... ~ fl ' /IJ <I. -4"7".. Defendants. t....,.. _.. I MOTION FOR JUDGMENT The plaintiff, Karl Gupton, by counsel, moves this Court for judgment against the defendants, Donald T. Quicke, and, Kimberly E. Quicke, both individually and t/a The Coppermine,,I 11 Cafe on the grounds and in the amounts as hereinafter set forth: 1. Defendants Quicke individually and t/a The Coppermine Cafe (hereinafter referred collectively to as "Coppermine") at all times pertinent hereto owned and operated the restaurant/tavern located at 109 N. Sycamore Str~et, Petersburg, Virginia ("the premises"). 2. On or about 'November 30, 1990, the plaintiff, Karl Gupton ("Gupton"), was present in the Coppermine as a business invitee for the purpose of purchasing food and/or drink. 3. While at the Coppermine, the plaintiff was confronted I., ' I' ;I 1

4 1 by David Lively ("Lively"), and an argument ensued between the i! plaintiff and Lively with open, verbal threats being made by ' Lively against the plaintiff's person. I' I 4. The argument and threats made by Lively against the.: plaintiff were made known to Coppermine employees. " j 5. Coppermine employees thereafter escorted Lively II i: outside the premises, where again threats were made by Lively ii ;i against the plaintiff's person in the presence of Coppermine ' I I.,!I!I employees. 6. While outside the premises, Lively mude it known to i; Coppermine employees that he (Lively) intended to assault 'I " ' ' plaintiff and again repeated this threat in the presence of Coppermine employees outside Coppermine premises. Despite ~. Lively's threats Coppermine employees allowed Lively to re-, '!: enter the Coppermine premises where the plaintiff remained, a I fact known to Coppermine's employees. 7. Coppermine's employees knew, or should have known, in the exercise of reasonable care, that a dangerous and potentially violent situation was occurring or about to occur as Lively announced his intentions to assault the plaintiff upon his reentry into the premises. 8. Despite knowledge of Lively's intentions, Coppermine, by and through it's employees, failed to take reasonable, necessary and requisite precautions to avert an attack upon,.,. plaintiff by Lively, a duty owed plaintiff by the defendant, Coppermine. 9. That the acts and omissions of Coppermine described

5 '' herein above, by and through its employees, acting within the I! scope of their employment, were negligent, unreasonable, wilful,,.,, ' 1 wanton, reckless and malicious and a breach of a duty owed the p plaintiff as a jl premises. \I II,, II,i II ' ' result of his invitee status in defendant 10. Coppermine by and through its employees, carelessly, recklessly and negligently failed to act in a reasonable manner :: to control Lively and prevent his reentry into the premises, and li ;i i: thereby prevent the assault upon the plaintiff; I!!,, ;t I I' i: being a breach of duty owed plaintiff by defendant. such action 11. Coppermine by and through its employees negligently ' ': failed to warn plaintiff and further negligently failed to intervene to stop or prevent the assault upon plaintiff; such action being a breach of duty owed plaintiff by defendant. 12. Upon re-entry to Coppermine' s premises, Lively did 1 then and there violently attack, assault and batter the plaintiff without warning and without provocation. 13. As a result of the aforesaid actions of the defendant,,. plaintiff sustained serious and permanent injuries; has incurred!. and will incur loss of income; has incurred and will incur medical and other related expenditures; has sustained loss of earning capacity; has suffered and will continue to suffer pain of body and mind; and has had his ability to engage in his usual activities and to enjoy life adversely affected on account of the accident and resulting injuries. WHEREFORE, the plaintiff demands judgment against the defendants, jointly and severally, in the sum of TWO HUNDRED 3

6 ' FIFTY THOUSAND DOLLARS ($250,000.00) compensatory damages and :. ONE HUNDRED THOUSAND DOLLARS ($100,000.00) punitive damages plus. costs and interest from the date of the accident. TRIAL BY JURY IS DEMANDED. KARL GUPTON ~ BY: ~~~ Of Couse! William R. Keown, Esquire TRAYLOR & MORRIS, P.C. P. 0. Box 786 Chester, VA (804)

7 V I R G I N I A : IN THE CIRCUIT COURT OF THE COUNTY OF CHESTERFIELD KARL GUPTON, Plaintiff, v. Case No. CL DONALD T. QUICKE, individually and t{a THE COPPERMINE CAFE and KIMBERLY E. QUICKE, individually and t{a THE COPPERMINE CAFE, Defendants. DEMURRER COME NOW the defendants, by counsel, and demur to the Motion for Judgment filed by the plaintiff and in support of said demurrer states as follows: 1. Plaintiff's Motion for Judgment fails to state a cause of action upon which relief can be granted as to these defendants. Specifically, the Motion for Judgment alleges that these defendants, in the operation of their restaurant, were negligent in their failure to prevent the plaintiff from being assaulted by David Lively. The Motion for Judgment further alleges that Lively's attack was intention, and that he had made threats against the plaintiff. These defendants alleged liability is based on the fact that they did not prevent the attack. 2. Under Virginia law the owner or possessor of land has no duty to protect invitees from assaults by third parties while the invitee is upon the premises. Accordingly, there can be no liability as to these defendants. See Wright v. Webb, 234 Va. 527, 362 S.E.2d 919 (1987); Klingbeil Management Group Co. v. Vito, 233 Va. 445, 357 S.E.2d 200 (1987); Gulf Reston, Inc. v. Rogers, 215 5

8 ,. ( Va. 155, 207 S.E.2d 841 (1974). All these cases hold that there is no liability because there is no duty to protect the business invitee from assaults by third parties while on the business premises. WHEREFORE, these defendants pray that this action be dismissed and that they be awarded the cost of these proceedings, including reasonable attorney's fees. DONALD T. QUICK, etc., et al. W. Joseph Owen, III, Esquire Cowan & owen, P.C. P. 0. Box Richmond, Virginia CERTIFICATE OF SERVICE I hereby certify that on this ~ day of August, 1992, a true and correct copy of the forego1ng Demurrer was mailed by first-class mail, postage pre-paid, to William R. Keown, Esquire, Traylor & Morris, P.C., P. 0. Box 786, c ter, Virginia,

9 Richmond, V I R G I N I A : IN THE CIRCUIT COURT OF THE COUNTY OF CHESTERFIELD KARL GUPTON, Plaintiff, v. Case No. CL DONALD QUICKE, et al, Defendants. ORDER COMES NOW the parties by counsel on the defendants' Demurrer to the Motion for Judgment filed by the plaintiff. The Court received written briefs and oral argument from the parties by their counsel. UPON CONSIDERATION of the pleadings and the argument of authority presented by counsel, it is the Courts opinion that the Demurrer of the defendants should be sustained for the reasons cited in the Court's opinion letter of January 11, ACCORDINGLY, it is hereby ORDERED that the defendants' Demurrer is sustained and the plaintiff's action would be dismissed with prejudice. ENTER : 02 los lg3 I ASK FOR THIS: w. J oseph, III 0 COWAN 0 & 0 EN, P.C. J \()- Y 0. Bo ~ v/ 1930 Hu enot Road 0 } 0}' Virginia to " ( ) G,) ;;G'

10 SEEN AND OBJECTED TO : 8

11 JUDGES JOHN F. DA~ON. JPI. WIL.UAM R. SHE I.. TON HEPIBERT C. G IL..J..., JR. E PINEST P. G ATES W IL.UAM N. HUMP HRIES. JR. D. w. I<! URPHEY RETl.. EO CovNTY OF CH~FlEl..D CITY OF Cot.ONIAL HEIGHT5 JUDGES CHAMBEI\S P.O. Box ~7 CHESTERFl 1..0, VIRGINIA (804) 748-\333 TWELFTH JUDICIAL CIRCUIT January 11, 19~3 William R. Keown, Esquire Post Office Box 786 Chester, Virginia W. Joseph owen, Esquire Post Office Box Huguenot Road Richmond, Virginia Re : Gupton v. Ouicke CL Dear Counsel: The parties, by counsel, appeared before the Court on November 18, 1992 to present arguments on defendants' demurrer. Plaintiff's Motion for Judgment demands compensation for injuries he sustained in a fight with a third-party while he was a customer in d efendants' restaurant. Defendants demur, claiming that they had no duty to protect plaintiff from assaults by unrelated parties. The Court believes that defendants' argument correctly states the law. Business invi ters owe a duty of reasonable care to their invitees. Wright v. Webb, 234 Va. 527, 528 (1987). However, this duty does not include protecting invitees against the criminal acts of unrelated third parties. Id. at 530. Plaintiff's motion for judgment fails to state a cause of action. Therefore, this Court sustains defendant's demurrer and dismisses plaintiff's motion for judgment. 9

12 January 11, 1993 Page Two Mr. Owen should draft an order that confirms with this opinion, circulate it to Mr. Keown for endorsement and forward it to the Court for entry within thirty (30) days. vt::ji'la William R. Shelton Judge WRSfsdt 10

13 V I R G I N I A: IN THE CIRCUIT COURT OF THE COUNTY OF CHESTERFIELD KARL GUPTON, Plaintiff, v. Case No. CL DONALD QUICKE, et al., Defendants. WRITTEN STATEMENT OF FACTS COMES NOW the Appellant, Karl Gupton, by counsel pursuant to Rule 5A:8(c) Rules of the Supreme Court of Virginia and files his Written Statment of Fact. 1. The plaintiff filed his Motion for Judgment on March 19, 1992 alleging personal injuries and seeking damages from the defendants, jointly and severally. Exhibit A attached. 2. The defendant, Donald T. Quicke, individually and t l a The Coppermine Cafe filed their Demurrer in Answer to Plaintiff's Motion for Judgment on August 18, Exhibit B attached. 3. After hearing argument of counsel on November 18, 1992, the Court issued a l etter opinion dated January 11, 1993 sustaining defendant, Quicke's Demurrer, stating that plaintiff's Motion for Judgment failed to state a cause of action and dismissing plaintiff's Motion for Judgment. Exhibit C attached. Enter:,3 I g I q];.. Judg~~ 11 II

14 We have seen this: ~ Owen, Esquire 12

15 ASSIGNMENT OF ERROR Pursuant to Rule 5:17 of this court, the appellant assigns the following error: THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT' S DEMURRER AND IN DISMISSING THE PLAINTIFF'S MOTION FOR JUDGEMENT WITH PREJUDICE. 1.3

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