Present: All the Justices 

JAMES P. BURNS, JR., 

T/A SOUTH NORFOLK AMOCO 

OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 941465 June 9, 1995 

TUWANNA E. JOHNSON 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Thomas S. Shadrick, Judge 

 In this appeal, the sole question is whether an invitee 

presented sufficient evidence to establish a duty upon the owner 

of land to protect the invitee from the criminal act of a third 

person committed while the invitee was upon the premises. We 

answer that question in the negative. 

 Appellee Tuwanna E. Johnson filed a motion for judgment 

against appellant James P. Burns, Jr., trading as South Norfolk 

Amoco, seeking damages for negligently inflicted personal 

injuries sustained when she was abducted from defendant's 

premises and raped. In a May 1994 trial, after the court 

overruled defendant's several motions to strike the plaintiff's 

evidence, a jury found for the plaintiff and assessed her damages 

at $175,000. The trial court entered judgment on the verdict 

after overruling defendant's motion to set it aside. We awarded 

defendant this appeal. 

 According to settled appellate principles, we shall recite 

the facts in the light most favorable to the plaintiff. In the 

early morning hours of April 12, 1992, defendant's employee, 

Denise Breaker, was on duty alone as the cashier at a selfservice gasoline station situated on property owned by defendant 
- 2 - 

in the city of Chesapeake. The employee was working in a locked, 

glass-enclosed booth equipped with bullet-proof glass, two 

telephones, a silent alarm, and three television monitors. 

Cigarettes, candy, and similar items were dispensed through a 

window; there was no store accessible to the public. 

 Near 2:00 a.m. on the day in question, a man later 

identified as Nathaniel Bryant parked a vehicle at one of the gas 

pumps on the premises, walked to the window, and bought a pack of 

cigarettes. Bryant, "a regular customer," was drunk and 

repeatedly asked to come "inside of the booth," saying to the 

employee, "I want to fuck you." She refused and "requested him 

to leave quite a few times." 

 After Bryant had remained on the premises for ten to fifteen 

minutes, the plaintiff, a young woman, drove a vehicle onto the 

premises and parked at another gas pump. The plaintiff came to 

the window and paid two dollars for gasoline. According to the 

plaintiff, Bryant was standing at the window, and she heard the 

employee say to him, "Sir, you have to leave now. Sir, you have 

to leave now." 

 The plaintiff returned to her vehicle to pump the fuel. At 

this point, the employee left her position at the window, went to 

the rear of the booth because "she needed to do some inventory on 

her cigarettes or do something with the cigarettes," according to 

a statement the employee later gave to an investigating police 

officer. 
- 3 - 

 As the plaintiff was pumping the gas, Bryant, a stranger to 

the plaintiff, asked if he could help. She declined the offer 

and Bryant "walked away." He immediately returned, "grabbed" her 

arm, and said he would shoot her if she screamed. He then forced 

her into a field adjacent to defendant's premises and raped her. 

 In the meantime, the employee returned to the front of the 

booth. She observed through the windows and monitors that "the 

man and the woman" were "both gone." She saw, however, that the 

two vehicles remained at the gas pumps, but she "had no reason to 

feel" the plaintiff "was in any danger." She testified that 

customers often left their cars at the pumps while they used 

telephones or soft-drink machines available on the premises. The 

owner testified that he had "no problem" with cars remaining on 

his premises during nighttime because "[i]t helps business" for a 

car to be "sitting there." 

 A "few minutes" after the employee returned to the front of 

the booth, a young male friend of the plaintiff drove past the 

premises, recognized the plaintiff's parked vehicle, "pulled in 

the gas-station lot and started to look for her." The friend 

called plaintiff's name and asked the employee if she had seen 

the plaintiff. The employee responded, "She was just standing 

over there with a gentleman . . . a few minutes ago." The 

employee said that "you better look around for her, because 

something is wrong." 

 The friend unsuccessfully searched the premises, including 
- 4 - 

"behind the booth," for the plaintiff. He asked the employee "to 

call the police," she "looked up," and gave him "an okay." The 

friend then drove away. 

 According to the plaintiff, the assailant sexually assaulted 

her in the field during a period of one and one-half hours. 

During that period, she "heard somebody call out something," but 

was too frightened to respond. Finally, the assailant left her 

and drove away from the station. In a few minutes, she drove 

from the premises without speaking to defendant's employee. 

 The plaintiff contends that the trial court, in its rulings 

on the motions to strike and to set the verdict aside, correctly 

decided that a jury question was presented whether defendant's 

employee "breached her duty to [the plaintiff] when, with 

knowledge that a criminal assault was imminent, she failed to 

protect or warn [the plaintiff]." We disagree. 

 At the threshold, the plaintiff must establish a duty upon 

the defendant. The law is settled on this subject. Virginia 

adheres to the rule "that the owner or occupier of land 

ordinarily is under no duty to protect an invitee from a third 

person's criminal act committed while the invitee is upon the 

premises." Gupton v. Quicke, 247 Va. 362, 363, 442 S.E.2d 658, 

658 (1994) (citing Wright v. Webb, 234 Va. 527, 530, 362 S.E.2d 

919, 920 (1987)). 

 In Wright, we fashioned a narrow, limited exception to the 

general rule. There, we held that an owner or occupier of land, 
- 5 - 

"whose method of business does not attract or provide a climate 

for assaultive crimes, does not have a duty to take measures to 

protect an invitee against criminal assault unless he knows that 

criminal assaults against persons are occurring, or are about to 

occur, on the premises which indicate an imminent probability of 

harm to an invitee." 234 Va. at 533, 362 S.E.2d at 922. This 

exception requires "notice of a specific danger just prior to the 

assault." Id. 

 In the present case, the evidence utterly fails to establish 

that defendant's employee knew a criminal assault was about to 

occur on the premises which indicated an imminent probability of 

harm to the plaintiff. The employee was being harassed by a 

drunk, regular customer whom she knew and who was making comments 

personal to her. She rejected his vile remarks and his requests 

to enter the booth. There is no evidence that he displayed a 

firearm or that she was afraid for her own safety, or for the 

safety of any customer. 

 When the plaintiff arrived on the scene, the employee did 

not perceive the plaintiff was in any danger; no conversation 

between the plaintiff and her assailant was overheard by the 

employee before she moved to the rear of the booth. Indeed, the 

plaintiff herself testified that "nothing" she observed "at the 

time" made her "afraid." When the employee returned to the 

front, she still had no knowledge that any assault was occurring 

or was about to occur. The fact that two vehicles remained 
- 6 - 

parked on the premises at nighttime was not an unusual 

circumstance. 

 When the plaintiff's friend arrived on the property, the 

plaintiff already had been abducted and was in the process of 

being attacked on adjacent property. After the friend's 

unsuccessful preliminary search for the plaintiff, the employee 

indicated that "something is wrong." However, because this 

statement was made after the abduction already had occurred, it 

fails as a matter of law to support a conclusion that, before the 

plaintiff was forced from defendant's premises, the employee knew 

of a specific danger to the plaintiff. 

 The question whether a duty of care exists in a negligence 

action is a pure question of law. Fox v. Custis, 236 Va. 69, 74, 

372 S.E.2d 373, 375 (1988). In this case, the trial court erred 

in refusing to rule, as a matter of law, that the plaintiff had 

failed to establish defendant owed her a duty under these 

circumstances. 

 Consequently, we will reverse the judgment in favor of the 

plaintiff and enter final judgment here for the defendant. 

Reversed and final judgment.