Present: All the Justices 

RYAN TABOADA 

 OPINION BY 

v. Record No. 051094 JUSTICE LAWRENCE L. KOONTZ, JR. 

March 3, 2006 

DALY SEVEN, INC. 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Clifford R. Weckstein, Judge 

In this appeal, we consider whether the trial court erred 

in sustaining demurrers to a motion for judgment and an amended 

motion for judgment against an innkeeper for injuries sustained 

by a guest as the result of a criminal assault by a third party 

while on the innkeeper’s property. In so doing, we consider as 

an issue of first impression what duty of care is owed by an 

innkeeper to a guest for injuries caused by a third party. 

BACKGROUND 

The principles of appellate review that guide our 

consideration of this appeal are well-settled. “A demurrer 

admits the truth of the facts contained in the pleading to which 

it is addressed, as well as any facts that may be reasonably and 

fairly implied and inferred from those allegations. A demurrer 

does not, however, admit the correctness of the pleader’s 

conclusions of law.” Yuzefovsky v. St. John’s Wood Apts., 261 

Va. 97, 102, 540 S.E.2d 134, 136-37 (2001) (internal citation 

omitted). Accordingly, we will consider the facts stated, and 

those reasonably and fairly implied and inferred, in the two 
motions for judgment in this case in a light most favorable to 

the plaintiff, but we will review the sufficiency of the legal 

conclusions ascribed to those facts de novo.1 Id. Applying this 

standard, the relevant facts and legal conclusions in the 

plaintiff’s motions for judgment are as follows. 

Daly Seven, Inc. owns and operates hotels in Virginia 

including a Holiday Inn Express located in downtown Roanoke. At 

approximately 2 a.m. on March 27, 2003, Ryan Taboada and his 

family arrived at the Holiday Inn Express seeking lodging for 

the night. Taboada had selected the hotel relying, in part, 

upon the hotel’s representation that the hotel was a “safe, 

secure, and reliable place to lodge.” Taboada registered as a 

guest at the hotel and was assigned a room. 

Taboada then returned to his vehicle in the hotel’s parking 

lot where his wife and two children were waiting and began to 

unload the family’s luggage. Derrick W. Smith, who was not a 

guest at the hotel, approached Taboada and demanded money from 

 

1

 As will be more fully related hereafter, this case 

involves appeals from the trial court’s orders sustaining two 

demurrers: the first to an original motion for judgment filed 

by a guest against the owner of a hotel in which statutory and 

common law negligence claims were asserted and a subsequent one 

to an amended motion for judgment in which only the common law 

claim was asserted. In light of this circumstance, our 

references to the factual allegations are to be understood in 

the context of the pertinent motion for judgment. See Fuste v. 

Riverside Healthcare Ass’n., 265 Va. 127, 129-30, 575 S.E.2d 

858, 860 (2003). 

2
him. Smith then, immediately and without provocation, began to 

fire a weapon at Taboada. Taboada was wounded eight times, 

suffering severe bodily injuries. Smith took a wristwatch from 

Taboada’s seven-year-old son and stole the family’s vehicle; 

Taboada’s infant daughter was still in her car seat in the 

vehicle at the time. Police apprehended Smith, recovered the 

vehicle, and rescued the infant, who was not physically harmed. 

On September 24, 2003, Taboada filed his original motion 

for judgment in the Circuit Court of the City of Roanoke (trial 

court) against Daly Seven seeking $3,000,000 in compensatory 

damages for the injuries he sustained as the result of Smith’s 

criminal act. In addition to a common law negligence claim, 

Taboada asserted a statutory claim against Daly Seven based on 

the duties imposed on innkeepers by Code § 35.1-28. The trial 

court sustained Daly Seven’s demurrer to both claims. With 

respect to the statutory claim, the trial court ruled that Code 

§ 35.1-28(E) “unmistakably proclaims that the duties arising 

[under the statute] have no application in personal injury 

cases.” Accordingly, while granting Taboada leave to file an 

amended motion for judgment with respect to the common law 

claim, the trial court dismissed the statutory claim with 

prejudice and without leave to amend. 

On September 21, 2004, Taboada filed an amended motion for 

judgment in which he again asserted his common law negligence 

3
claim against Daly Seven premised upon the innkeeper’s breach of 

a duty of care owed to Taboada as a guest. Taboada expanded 

upon his factual allegations from the original motion for 

judgment and increased his claim for compensatory damages to 

$5,000,000. 

Taboada alleged that Daly Seven had misrepresented that the 

Holiday Inn Express was located in a “safe” area when, in fact, 

Daly Seven “knew that the location of the Holiday Inn Express 

was in a high crime area, that it attracted assaultive crimes, 

that criminal assaults against employees and guests were 

occurring, that criminal assaults would continue to occur, and 

that the business provided a known target for repeat criminal 

activity including assaultive crimes on employees and guests.” 

In support of this allegation, Taboada alleged that “[f]rom 

January 1, 2000 through March 26, 2003, [Daly Seven] regularly 

called the Roanoke City Police Department on at least 96 

occasions to report the presence of trespassers who refused to 

leave the premises, the presence of suspicious persons on the 

premises, larcenies, disorderly persons, suspicious 

circumstances, and suspected drug offenses. Included in such 

reports by [Daly Seven] were reports of robberies, malicious 

woundings, shootings, and other such criminally assaultive acts 

requiring the attention of the Roanoke City Police Department.” 

Taboada alleged that these facts “specifically placed [Daly 

4
Seven] on notice that uninvited persons regularly came upon the 

parking lot and property of [Daly Seven] and created a risk of 

imminent harm to the person of the employees of [Daly Seven] and 

to the person of its guests.” 

Taboada further alleged that Daly Seven “was informed by 

the Roanoke City Police Department and by others that its guests 

were at a specific imminent risk for harm to their persons from 

uninvited persons coming into or upon its property and that to 

avoid this imminent risk [Daly Seven] needed to retain the 

services of uniformed security guards.” Taboada alleged that 

Daly Seven had at one time employed uniformed security guards to 

patrol the hotel and its parking lot during the overnight hours, 

but that it had discontinued this practice “in favor of saving 

expenses.” 

Taboada premised Daly Seven’s liability for his injuries on 

the legal theory that Daly Seven owed its guests a “standard of 

care under the circumstances in which [Daly Seven] operated the 

Holiday Inn Express.” According to Taboada, that standard of 

care 

required [Daly Seven] to have uniformed security 

guards in place at least between the hours of 10:00 

p.m. and 4:00 a.m. seven (7) days a week for the 

purpose of protecting its guests from the known risk 

of imminent harm from assaults from third persons. In 

addition, the standard of care required [Daly Seven] 

to have in place video cameras clearly identifying 

unusual or criminal activity which might occur in 

close proximity to the main entrance to its business 

5
so that it could provide assistance to guests who 

intended to register or who had just completed 

registration during the hours between 10:00 p.m. and 

4:00 a.m. The requirement for video cameras was in 

direct response to the known risk that guests were in 

imminent danger of assaults in parking and attempting 

to enter the premises for purposes of checking in or 

for guests who had checked in and were returning from 

the lobby to their vehicles in order to travel to 

their rooms. 

Taboada alleged that had Daly Seven continued to employ 

uniformed security guards, the guards “would have been able to 

see the assailant prior to the time of the assault [and] would 

have been able to stop the assailant before the attack and 

direct him to leave the premises or, in the alternative, would 

have been able to warn [Taboada] of the approach of the 

assailant in time for [Taboada] to protect himself and his 

family.” Taboada further contended that use of a security 

camera would have afforded similar protection. 

On October 13, 2004, Daly Seven filed a demurrer to 

Taboada’s amended motion for judgment. Daly Seven asserted that 

it “did not have a duty to protect [Taboada] from the 

intentional criminal assault of a non-employee under the 

allegations” of the amended motion for judgment. Citing 

Thompson v. Skate America, Inc., 261 Va. 121, 129, 540 S.E.2d 

123, 127 (2001), Daly Seven asserted that the amended motion for 

judgment failed to state a common law negligence claim against 

it because Taboada failed to allege that Daly Seven “knew that 

6
criminal assaults against persons [were] occurring or about to 

occur on the premises which indicate[d] an imminent probability 

of harm and that such knowledge constituted notice of a specific 

danger just prior to the assault.” (Internal quotation marks 

omitted). 

On February 24, 2005, the trial court entered a final order 

sustaining Daly Seven’s demurrer and dismissing the amended 

motion for judgment with prejudice, adopting by reference the 

reasons stated in an opinion letter dated February 13, 2005. In 

that opinion letter, the trial court, relying on Yuzefovsky, 

opined that in “a suit against the owner of the property where 

[a criminal] attack occurred . . . the plaintiff [must] set 

forth facts from which the trier of fact could find that the 

innkeeper knew ‘that criminal assaults against persons [were] 

occurring, or [were] about to occur, on the premises which 

indicate[d] an imminent probability of harm.’ ” Yuzefovsky, 261 

Va. at 109, 540 S.E.2d at 141. The trial court ruled that 

Taboada had failed to “set forth facts from which [the trial 

court could] at least infer that the innkeeper should have 

foreseen the type of criminal activity of which Taboada was a 

victim.” Accordingly, the trial court determined that Taboada 

7
had failed to adequately plead facts in support of his common 

law claim of negligence.2

DISCUSSION 

Although raised as the last of his four assignments of 

error, we first address Taboada’s assertion that the trial court 

erred in sustaining the demurrer to the statutory claim under 

Code § 35.1-28 and dismissing that claim with prejudice. We do 

so, before addressing the remaining assignments of error 

directed to Taboada’s common law claim, in order to determine 

whether the enactment of this statute changed or altered the 

common law with respect to a duty of care owed by an innkeeper 

to a guest for injuries caused by the intentional acts of third 

parties. 

The duty of care owed by an innkeeper “to take reasonable 

precautions to protect the persons and property of [his] guests” 

is defined, and the innkeeper’s liability is limited, by Code 

§ 35.1-28. In summary, the duties prescribed and the limits of 

monetary loss provided for in that statute relate to the 

provision of adequate locks on doors and windows, and are 

 

2

 In the February 13, 2005 opinion letter, the trial court 

also adopted by reference its prior ruling sustaining the 

demurrer to Taboada’s statutory claim under Code § 35.1-28 in 

the original motion for judgment, for which leave to amend had 

not been granted. Thus, the final order addressed both claims, 

and Taboada’s objection to that order preserved both issues for 

appeal. 

8
principally directed to the prevention of the loss of personal 

property of the guest. See Code § 35.1-28(B)-(D). However, as 

relevant to the issues raised in this appeal, Code § 35.1-28(E) 

makes plain that the duties prescribed, and the limitation of 

liability afforded, by the statute do not “change or alter the 

principles of law concerning a hotel’s liability to a guest 

. . . for personal injury.” Thus, with respect to the specific 

facts of this case, the duty of care owed to Taboada by Daly 

Seven with respect to protecting him from injury as the result 

of a criminal assault by a third party is not governed by the 

provisions of the statute, but remains governed by the common 

law. See Couplin v. Payne, 270 Va. 129, 136, 613 S.E.2d 592, 

595 (2005); Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 

301, 302 (1988). Accordingly, we hold that the trial court’s 

judgment sustaining Daly Seven’s demurrer to Taboada’s statutory 

claim under Code § 35.1-28 was correct.3

 

3

 We recognize that in Crosswhite v. Shelby Operating Corp., 

182 Va. 713, 716, 30 S.E.2d 673, 674 (1944), an innkeeper-guest 

liability case arising from a personal injury alleged to have 

been caused by a defective condition of the hotel property, we 

said, referring to former Code § 15-1602, that “[t]he Code 

itself . . . tells us what is required of innkeepers.” We then 

used the standard of care prescribed by that Code section in 

determining that the trial court had improperly sustained a 

demurrer to the motion for judgment. Former Code § 15-1602 

corresponds in all relevant parts to subsection A of Code 

§ 35.1-28. However, at the time Crosswhite was decided, the 

Code contained no provision corresponding to Code § 35.1-28(E), 

which was added to the Code in 1981 as part of the enactment of 

9
We turn now to consider Taboada’s three remaining 

assignments of error. These all address the trial court’s 

sustaining of the demurrers to his common law claim of 

negligence. However, because Taboada was granted leave by the 

trial court to file the amended motion for judgment in which he 

expanded the allegations in support of his common law claim, we 

will confine our discussion of this issue to the trial court’s 

judgment sustaining the demurrer to Taboada’s amended motion for 

judgment. Cf. Doe v. Zwelling, 270 Va. 594, 596, 620 S.E.2d 

750, 751 (2005); Fuste v. Riverside Healthcare Assoc., 265 Va. 

127, 129-30, 575 S.E.2d 858, 860 (2003). 

The general rule in Virginia is that there is no common law 

duty for an owner or occupier of land either to warn or to 

protect an invitee on his property from the criminal act of a 

third party. Yuzefovsky, 261 Va. at 106, 540 S.E.2d at 139. 

“[T]here are narrow exceptions to this rule,” but the 

application of those exceptions “is always fact specific and, 

thus, not amenable to a bright-line rule for resolution.” Id. 

However, before an exception to the general rule can apply so as 

 

Title 35.1. See 1981 Va. Acts ch. 468. Accordingly, to the 

extent that Crosswhite can be read to stand for the proposition 

that an innkeeper’s duty of care to protect a guest from 

personal injury arises only from the statute, the subsequent 

legislative amendment of the successor statute has clarified 

that it did not abrogate the duty or the liability imposed on 

innkeepers for personal injuries to guests by the common law. 

10
to impose a potential duty upon the owner of land, the facts 

“must establish that there is a special relationship, either 

between the [owner of land] and the [invitee] or between the 

third party criminal actor and the [owner of land].” Id. at 

107, 540 S.E.2d at 139. The relationship between innkeeper and 

guest has long been recognized by the common law as constituting 

just such a special relationship.4

 See, e.g., Yuzefovsky, 261 

Va. at 108, 540 S.E.2d at 140; Skate America, 261 Va. at 129, 

540 S.E.2d at 127; Holles v. Sunrise Terrace, Inc., 257 Va. 131, 

136, 509 S.E.2d 494, 497-98 (1999); A.H. v. Rockingham 

 

4

 The special legal relationship between innkeepers and 

guests 

“had its origin in the feudal conditions which were 

the outgrowth of the Middle Ages. In those days there 

was little safety outside of castles and fortified 

towns for the wayfaring traveler, who, exposed on his 

journey to the depredations of bandits and brigands, 

had little protection when he sought at night 

temporary refuge at the wayside inns, established and 

conducted for his entertainment and convenience. 

Exposed as he was to robbery and violence, he was 

compelled to repose confidence, when stopping on his 

pilgrimages over night, in [proprietors] who were not 

exempt from temptation; and hence there grew up the 

salutary principles that a host owed to his guest the 

duty, not only of hospitality, but also of 

protection.” 

Kveragas v. Scottish Inns, Inc., 733 F.2d 409, 412 (6th Cir. 

1984) (quoting Crapo v. Rockwell, 94 N.Y.S. 1122 (N.Y.Sup. Ct. 

1905)). It continues to be recognized as a special one because 

“[a]lthough castles and fortified towns are no longer a part of 

our landscape, bandits and brigands remain” as hazards to those 

who travel. Id.

11
Publishing Co., 255 Va. 216, 220, 495 S.E.2d 482, 485 (1998); 

Klingbeil Management Group Co. v. Vito, 233 Va. 445, 448, 357 

S.E.2d 200, 201 (1987). 

The establishment of the necessary special relationship is 

the threshold requirement for the application of an exception to 

the general rule of non-liability in these cases. Even though 

the necessary special relationship is established so as to 

create a potential duty on the defendant to protect or warn the 

plaintiff against criminal conduct of a third party, there is no 

liability when the defendant neither knows of the danger of an 

injury to a plaintiff from the criminal conduct of a third party 

nor has reason to foresee that danger. In short, the special 

relationship does not make the defendant an insurer of the 

plaintiff’s safety. See Rockingham, 255 Va. at 220-21, 495 

S.E.2d at 485. 

Although we have previously addressed questions of 

liability for injuries caused by third parties involving 

property owners who were innkeepers, the plaintiffs in those 

cases were regular business invitees on the property and not 

guests of the innkeepers. See, e.g., Wright v. Webb, 234 Va. 

527, 529, 362 S.E.2d 919, 920 (1987) (patron of adjoining 

business using parking on innkeeper’s property by permission); 

Alpaugh v. Wolverton, 184 Va. 943, 945, 36 S.E.2d 906, 907 

(1946) (patron of restaurant located in innkeeper’s property). 

12
In contrast, this case presents the opportunity to address 

directly the question of what duty of care an innkeeper owes to 

a guest as a result of that special relationship for injuries 

caused by the criminal conduct of a third party while on the 

innkeeper’s property. 

In the absence of prior case law in Virginia concerning the 

special relationship of innkeeper and guest with regard to 

injuries suffered by criminal acts of a third party, the trial 

court looked for guidance in our prior cases involving other 

special relationships between owners of land and either invitees 

or tenants. The trial court principally chose Yuzefovsky, which 

involved the recognized special relationship of a landlord and 

tenant, for that guidance. We are of opinion, however, that the 

nature of the landlord-tenant relationship is not congruent with 

the relationship of innkeeper and guest. Moreover, in 

Yuzefovsky, we made clear that a higher duty of care may be 

imposed on the landlord in the special relationship of landlordtenant because of the specific circumstances of a particular 

case and not because of any unique aspect of the relationship 

recognized by the common law. Such, generally, would be the 

case in any owner-invitee relationship in order to invoke an 

exception to the general rule of non-liability. Yuzefovsky, 261 

Va. at 108, 540 S.E.2d at 140 (“we have consistently rejected 

the contention that the relationship of landlord and tenant, 

13
without more, constitutes a special relationship such that a 

duty of care may arise with regard to the conduct of a third 

party”); see also Klingbeil Management Group, 233 Va. at 448, 

357 S.E.2d at 201; Gulf Reston, Inc. v. Rogers, 215 Va. 155, 

158, 207 S.E.2d 841, 844 (1974). 

Additionally, we are unpersuaded by the analogy of the 

landlord-tenant relationship in this case because, unlike a 

landlord, an innkeeper is in direct and continued control of the 

property and usually maintains a presence on the property 

personally or through agents. Thus, “while a lessee may be 

expected to do many things for his own protection,” an 

innkeeper’s guest is not as well situated to do so. Crosswhite 

v. Shelby Operating Corp., 182 Va. 713, 715, 30 S.E.2d 673, 674 

(1944). 

In Kirby v. Moehlman, 182 Va. 876, 30 S.E.2d 548 (1944), a 

premises liability case involving an innkeeper and guest, we 

observed with regard to the common definition of negligence that 

“negligence is a relative term and the degree of care in fact 

should be greater or less commensurate with the circumstances.” 

Id. at 884, 30 S.E.2d at 551 (quoting Eastern Shore of Va. 

Agric. Assoc. v. LeCato, 151 Va. 614, 619, 144 S.E. 713, 714 

(1928)). In a similar vein, we observed in Rockingham that even 

though the necessary special relationship is established with 

regard to a defendant’s potential duty to protect or warn a 

14
plaintiff against criminal conduct, the defendant is not held to 

be the insurer of the plaintiff’s safety but, rather, it must be 

established that “the danger of a plaintiff’s injury from such 

conduct was known to the defendant or was reasonably 

foreseeable.” 255 Va. at 220, 495 S.E.2d at 485. 

Consistent with these basic principles, we have long 

recognized that some special relationships impose an elevated 

duty of care on the property owner. One such special 

relationship is that of common carrier and passenger. See, 

e.g., Hines v. Garrett, 131 Va. 125, 137, 108 S.E. 690, 693-94 

(1921); Virginia R. & P. Co. v. McDemmick, 117 Va. 862, 870, 86 

S.E. 744, 747 (1915); see also Wright, 234 Va. at 532, 362 

S.E.2d at 922 (“a business invitee does not entrust his safety 

to a business invitor to the same extent a passenger does to a 

common carrier”). Imposing an elevated duty of care upon the 

carrier is justified essentially because the passenger entrusts 

his safety to the carrier, who alone knows the condition of his 

vehicle and the dangers of the neighborhoods and environs 

through which the routes of travel may lie. This imbalance of 

knowledge and control warrants imposition of a duty on a common 

carrier “to protect its passengers against violence or 

disorderly conduct on the part of its own agents, or other 

passengers and strangers, when such violence or misconduct may 

be reasonably expected and prevented, yet it is not liable to an 

15
action for damages when it is not shown that the company had 

notice of any acts which justified the expectation that a wrong 

would be committed.” Virginia R. & P., 117 Va. at 870, 86 S.E. 

at 747; see also Norfolk & Western Ry. v. Birchfield, 105 Va. 

809, 822, 54 S.E. 879, 884 (1906). 

Like a passenger, the guest of an innkeeper entrusts his 

safety to the innkeeper and has little ability to control his 

environment. The guest relies upon the innkeeper to make the 

property safe and the innkeeper’s knowledge of the neighborhood 

in taking the reasonably necessary precautions to do so. In 

this regard, it is reasonable for the law to impose upon the 

innkeeper, as on the common carrier, a duty to take reasonable 

precautions to protect his guests against injury caused by the 

criminal conduct on the part of other guests or strangers, if 

the danger of injury by such conduct is known to the innkeeper 

or reasonably foreseeable. Indeed, Code § 35.1-28(A) supports 

the conclusion that such a duty rests upon the innkeeper 

although under subsection (E) of that statute the parameters of 

that duty are a matter of common law. 

We have held that neither the innkeeper nor the common 

carrier is an absolute insurer of the guest’s or the passenger’s 

personal safety. See, e.g., Crosswhite, 182 Va. at 716, 30 

S.E.2d at 674 (innkeeper); Norfolk & Western, 105 Va. at 821, 54 

S.E. at 883 (common carrier). Nonetheless, we have held that 

16
the duty of care imposed on common carriers is an elevated duty 

that requires them “ ‘so far as human care and foresight can 

provide . . . to use the utmost care and diligence of very 

cautious persons; and they will be held liable for the slightest 

negligence which human care, skill and foresight could have 

foreseen and guarded against.’ ” Norfolk & Western, 105 Va. at 

821, 54 S.E. at 883 (quoting Connell v. Chesapeake and Ohio Ry. 

Co., 93 Va. 44, 55, 24 S.E. 467, 468 (1896)). Given the nature 

of the special relationship between an innkeeper and a guest, we 

hold that it imposes on the innkeeper the same potential 

elevated duty of “utmost care and diligence” to protect a guest 

from the danger of injury caused by the criminal conduct of a 

third person on the innkeeper’s property. 

Daly Seven contends that in Wright we extended the 

application of the duty of care previously applied in our common 

carrier cases “to business invitors in general” and, thus, that 

liability for negligence in the latter cases is imposed only 

when a business invitor “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. Our decision in Wright

involved a business invitee and not a guest of the hotel and for 

that reason alone is not authority for Daly Seven’s broad 

contention. Moreover, in Wright we specifically noted that in a 

17
prior common carrier case, Hines v. Garrett, 131 Va. 125, 108 

S.E. 690 (1921), we had recognized “the high degree of care a 

common carrier owes its passengers and, therefore, a carrier’s 

duty to protect passengers from criminal acts of third persons 

which are reasonably foreseeable.” Wright, 234 Va. at 532, 362 

S.E.2d at 922. We went on to hold that Hines was inapplicable 

there “because a business invitee does not entrust his safety to 

a business invitor to the same extent a passenger does to a 

common carrier.” Id.

In commenting on three other common carrier cases, we noted 

that implicit in all of them “is the element of notice of a 

specific danger just prior to the assault.” Id. at 533, 362 

S.E.2d at 922. We then stated that, in the context of a 

business owner and invitee special relationship, we will not 

impose liability for negligence based solely upon a background 

of previous criminal activity on the owner’s property. Id. We 

do not retreat from our holding in Wright; it is simply not 

applicable to the potential duty of care owed to a guest as a 

result of the special relationship of innkeeper and guest. And, 

in the context of that special relationship, we equate “notice 

of a specific danger” with the concept of a reasonably 

foreseeable danger and not with the degree of knowledge of 

criminal assaults that indicate “an imminent probability” of 

harm. See Skate America, 261 Va. at 130, 540 S.E.2d at 128 

18
(“imminent probability” of harm is a heightened degree of 

foreseeability). 

Having determined that the special relationship of 

innkeeper and guest recognized by the common law imposes a duty 

of “utmost care and diligence” to protect the guest against 

reasonably foreseeable injury from the criminal conduct of a 

third party, we now review the allegations of the amended motion 

for judgment to determine whether Taboada adequately pled a 

cause of action under that standard. See Sanchez v. Medicorp 

Health Sys., 270 Va. 299, 303, 618 S.E.2d 331, 333 (2005). 

Limiting our consideration only to whether the facts 

alleged in the amended motion for judgment were sufficient to 

survive Daly Seven’s demurrer, we hold that those allegations, 

if proven, would be sufficient to permit a trier of fact to find 

that Daly Seven had breached its duty of care. Taboada alleged 

that, over a three-year period immediately prior to the attack 

upon Taboada, Daly Seven’s employees had regularly contacted 

police 96 times to report criminal conduct including robberies, 

malicious woundings, shootings and other criminally assaultive 

acts. As a result of these repeated incidents, Daly Seven had 

been advised by police that “its guests were at a specific 

imminent risk for harm to their persons from uninvited persons 

coming into or upon its property.” These allegations are 

sufficient to support a reasonable conclusion that Daly Seven 

19
knew its property was located in a high crime area, and that 

Daly Seven was on notice that its guests were in danger of 

injury caused by similar criminal acts of third parties. These 

allegations sufficiently support the further conclusion that the 

injury to Taboada from the criminal act of the third party was 

reasonably foreseeable. 

For these reasons, we hold that the trial court erred in 

sustaining Daly Seven’s demurrer to Taboada’s amended motion for 

judgment. 

CONCLUSION 

Accordingly, we will affirm the judgment of the trial court 

sustaining the demurrer to Taboada’s claim under Code § 35.1-28, 

reverse the judgment of the trial court sustaining the demurrer 

to Taboada’s common law claim, and remand the case for a trial 

on the merits of that claim. 

Affirmed in part,

reversed in part,

 and remanded. 

20