PRESENT: All the Justices

AGNES CHRISTINE TERRY,

ADMINISTRATOR OF THE ESTATE

OF PETER AMBRISTER

 OPINION BY

v. Record No. 170288 JUSTICE ELIZABETH A. McCLANAHAN

 September 27, 2018 

IRISH FLEET, INC., d/b/a

BOULEVARD CAB, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG

Pamela S. Baskervill, Judge1

Agnes Christine Terry, Administrator of the Estate of Peter Ambrister, appeals from the 

circuit court’s judgment dismissing her wrongful death action against Irish Fleet, Inc., d/b/a 

Boulevard Cab (“Irish Fleet”) and Reginald Morris arising from the murder of her husband, a 

taxicab driver, by his passenger. Terry argues that the circuit court erred in ruling that her 

amended complaint failed to state a claim for which relief could be granted against Irish Fleet

and Morris under a theory of assumed duty. Finding no reversible error in the circuit court’s 

ruling, we will affirm its judgment.

I.

Because this case was decided below on demurrer, we accept as true the well-pleaded 

facts set forth in the amended complaint and all inferences fairly drawn therefrom. Tharpe v. 

Saunders, 285 Va. 476, 478, 285 Va. 476, 478 (2013). We are not bound, however, by the 

“conclusory allegations” set forth in the amended complaint. Brown v. Jacobs, 289 Va. 209, 212 

n.2, 768 S.E.2d 421, 423 n.2 (2015) (citation omitted). 

 1

 Judge Baskervill entered the order sustaining the demurrers filed by Irish Fleet and 

Morris. Judge Joseph Teefey entered the final order nonsuiting the claims against the remaining 

defendants. 
2

A.

At the time of Ambrister’s death, he was a taxicab driver employed by “Craig Buck 

and/or Cab King, Inc., and/or John Doe Corporation.” Defendant Irish Fleet “owned and 

operated several cabs for hire in the City of Petersburg and provided dispatch services for other 

cabs in the City of Petersburg.” Defendant Morris was employed by Irish Fleet “to administer 

dispatch services.”

 On October 17, between 8:34 and 10:04 p.m., Morris, in the scope of his employment 

with Irish Fleet, received a series of eight “troubling” telephone calls from a male caller. During 

one of these calls, the caller asked for a taxicab “from Jesse Lee Apartments, building 700, going 

to Halcom Manor.” Morris “thought this call was a ‘red flag’” because the caller “indicated [he 

was] calling from a payphone, but [Morris] knew that there was not a payphone at that location.” 

When the caller telephoned again, Morris “established a call back number” and “documented” it 

as “one that merited screening.” After several calls, Morris dispatched a taxicab, but then 

cancelled it after “the caller called back and requested a change in pick-up location to a business 

that [Morris] knew to be closed, all of the business around it closed, and was in front of the 

apartment complex.” Morris also “called another cab company to warn them about this caller.”

 On the morning of October 18, Ambrister reported to work “for Craig Buck and/or Cab 

King, Inc. and/or John Doe Corporation.” At approximately 9:15 a.m., Tanya Tatum,2

 another 

dispatcher employed with Irish Fleet, received a phone call “from the Caller on the same phone 

as the night before requesting a cab from Jesse Lee Apartments, building 700, going to Halcom 

Manor.” Tatum dispatched Ambrister to this caller, and sometime after Ambrister began the 

transport, he was fatally shot three times by his passenger. 

 2

 Although Tatum was named as a defendant, Terry nonsuited the claims against her. 
3

B.

Terry filed an amended complaint against Irish Fleet and Morris, and other defendants, 

asserting that the defendants “were negligent and their negligence was the proximate cause of 

[Ambrister’s] death.” 

With regard to Irish Fleet and Morris, Terry asserts a theory of assumed duty. 

Specifically, Terry alleges that defendants

undertook, gratuitously or for consideration, to render services, including 

but not limited to[,] screening calls of potential cab fares callers, pick up 

locations, drop off locations[,] including the Caller as described in this 

complaint, and determining the safety risk of the call, caller, and/or location 

for the health and safety of cab drivers they dispatch, using ordinary car[e] 

in the screening and selection process of whom they accept fares from and 

when, or if, they dispatch a cab to the potential callers and location, and the 

warning of known dangerous or troubling callers or fares to Irish Fleet and 

all other employees and/or agents of Irish Fleet which Irish Fleet, Tatum, 

Morris, and/or John Doe should recognize as necessary for the protection of 

people and other cab drivers, including [Ambrister].

Terry alleges that Tatum “negligently dispatched [Ambrister] to a known dangerous fare 

that led to his death despite the documentation in the log book of the troubling calls” from the 

prior evening. Terry alleges, in the alternative, that Morris “negligent[ly] failed to warn and 

document the safety concern this caller with identifiable call back number posed to the cab 

drivers[’] health and safety, which increased the risk of harm to [Ambrister].” Terry contends 

that Irish Fleet is “vicariously liable for the acts and omissions of their employees . . . including 

Tatum and Morris,” and that all defendants knew or should have known of prior crimes 

committed against cab drivers in Petersburg earlier in the year that Ambrister was murdered and 

in the preceding 25-year period.

 Irish Fleet and Morris filed demurrers to Terry’s amended complaint and asserted, among 

other grounds, that the amended complaint failed to allege sufficient facts to support a cause of 
4

action based on a theory that they assumed a duty to Ambrister. The circuit court sustained the 

demurrers and Terry nonsuited her claims against the remaining defendants. 

II.

In reviewing the circuit court’s judgment sustaining the defendants’ demurrers, we note 

that “[t]he purpose of a demurrer is to determine whether a complaint states a cause of action 

upon which the requested relief may be granted.” Murayama 1997 Trust v. NISC Holdings, 

LLC, 284 Va. 234, 245, 727 S.E.2d 80, 86 (2012); see Code § 8.01-273. A demurrer tests the 

legal sufficiency of the facts properly alleged, and the inferences fairly drawn therefrom, but 

does not admit the correctness of the complaint’s legal conclusions. Murayama 1997 Trust, 284 

Va. at 245, 727 S.E.2d at 86. 

A.

“To plead a cause of action for negligence, a plaintiff must allege a legal duty, a violation 

of that duty and resulting damage.” Brown, 289 Va. at 215, 768 S.E.2d at 424 (citation omitted). 

Because Ambrister’s fatal injury was inflicted by his passenger, Irish Fleet and Morris are only 

subject to liability if they owed a duty to Ambrister to warn or protect him against the danger of 

criminal assault by his passenger.

As a general rule, there is no duty to warn or protect against acts of criminal assault by 

third parties. This is so because under “ordinary circumstances, acts of assaultive criminal 

behavior by third persons cannot reasonably be foreseen.” A.H. v. Rockingham Publ’g Co., 255 

Va. 216, 222, 495 S.E.2d 482, 486 (1998). Indeed, “[i]n only rare circumstances has this Court 

determined that the duty to protect against harm from third party criminal acts exists.” 

Commonwealth v. Peterson, 286 Va. 349, 359, 749 S.E.2d 307, 312 (2013). 
5

We have previously held that “[b]efore any duty can arise with regard to the conduct of third 

persons, there must be a special relationship between the defendant and either the plaintiff or the third 

person.” A.H., 255 Va. at 220, 495 S.E.2d at 485. “Examples of such a relationship between a 

defendant and a plaintiff include common carrier-passenger, business proprietor-invitee, and innkeeperguest.” Id. “Another example of a special relationship is that of employer-employee with regard to the 

employer’s potential duty of protecting or warning an employee.” Id. We have repeatedly stated that 

the finding of a special relationship is a “threshold requirement.” Brown, 289 Va. at 215, 768 S.E.2d at 

425 (quoting Peterson, 286 Va. at 357, 749 S.E.2d at 311); Taboada v. Daly Seven, Inc., 271 Va. 313, 

323, 626 S.E.2d 428, 433 (2006).3

 With regard to the criminal act of murder specifically, we have noted 

that a defendant “cannot be deemed to have anticipated nor be expected to guard and protect [a plaintiff] 

against a crime so horrid, and happily so rare, as that of murder.” Connell v. Chesapeake & Ohio Ry., 

93 Va. 44, 58, 24 S.E. 467, 469 (1896). 

In the absence of satisfying the “threshold requirement” of a special relationship, we have 

recognized that a defendant may owe a duty to protect against an act of criminal assault by a 

third party where the defendant voluntarily undertook such duty by expressly communicating his 

intention to do so. See Burns v. Gagnon, 283 Va. 657, 727 S.E.2d 634 (2012). This duty is 

 3

 The existence of a special relationship is not dispositive of the duty question, however, because 

the court must also conclude the defendant knows of the danger of an injury or has reason to foresee that 

danger before a duty to warn or protect against a third party criminal act will be imposed. Certain 

special relationships impose a duty to warn when the danger of a third party criminal act is known or 

reasonably foreseeable. See, e.g., Taboada, 271 Va. at 325-26, 626 S.E.2d at 434 (innkeeper-guest); 

A.H., 255 Va. at 220, 495 S.E.2d at 485 (employer-employee); Connell, 93 Va. at 62, 24 S.E. at 470 

(common carrier-passenger). Other special relationships, such as that of business owner-invitee and

landlord-tenant, impose a duty to warn of third party criminal acts only when there was an imminent 

probability of injury from a third party act. Yuzefovsky v. St. John’s Wood Apartments, 261 Va. 97, 109, 

540 S.E.2d 134, 141 (2001) (landlord-tenant); Wright v. Webb, 234 Va. 527, 533, 362 S.E.2d 919, 922 

(1987) (business owner-invitee).
6

based on the general common law principle that “one who assumes to act, even though 

gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.” Id. at 

672, 727 S.E.2d at 643 (citation omitted).4

In Burns, the plaintiff was a high school student who claimed that a friend of his told the 

assistant principal that plaintiff “was going to get into a fight with another student sometime that day.” 

Id. at 664, 727 S.E.2d at 639. According to the plaintiff, the assistant principal “wrote down [plaintiff’s] 

name and told [plaintiff’s friend] that he would ‘alert [his] security and we’ll make sure this problem 

gets taken care of.’” Id. We held that the assistant principal was subject to liability for breach of a 

voluntarily assumed duty based on his express promise to take care of the impending fight. Id. at 672-

73, 727 S.E.2d at 644.5

 4

 We have observed that this principle is embodied in the Restatement (Second) of Torts 

§ 323 (1965), involving an undertaking initiated for the protection of the person to whom the 

undertaking is made, Didato v. Strehler, 262 Va. 617, 628-29, 554 S.E.2d 42, 48 (2001), and the 

Restatement (Second) of Torts § 324A (1965), involving an undertaking initiated for the 

protection of a third person, Burns, 283 Va. at 672, 727 S.E.2d at 644. 

5

 Though outside the context of protection from the danger of criminal assault, we held 

that defendant wife expressly undertook a duty to protect a 14-year old female houseguest from 

harm by a third party when she “agreed” with the young girl’s parents that their daughter would 

not “be driven by any inexperienced drivers” and would not “be in a car with any young, male 

drivers.” Kellermann v. McDonough, 278 Va. 478, 490, 684 S.E.2d 786, 791-92 (2009). 

Defendant husband, however, did not assume such duty because “he was not present when [his 

wife] assumed the duty to exercise reasonable care to prevent [the young girl] from riding in cars 

driven by inexperienced drivers or young male drivers.” Id. at 490, 684 S.E.2d at 792. 

 Furthermore, outside the context of protection from third party conduct, we have relied 

upon the common law principle of assumed duty to hold that “a physician can, in certain 

circumstances, affirmatively undertake to provide health care to an individual, who prior to that 

moment was not the physician’s patient, and thereby assume the duty to comply with the 

applicable standard of care.” Fruiterman v. Granata, 276 Va. 629, 645, 668 S.E.2d 127, 136 

(2008) (acknowledging principle but holding that physician did not undertake to provide health 

care); Didato v. Strehler, 262 Va. 617, 629, 554 S.E.2d 42, 48 (2001) (holding that “plaintiffs 

pled sufficient facts which, if proven at trial, would permit the finder of fact to conclude that the 

defendants assumed the duty to convey to the plaintiffs the correct results of their daughter’s test, 

which indicated that she carried the sickle cell trait”).
7

On the other hand, we have rejected the contention that a defendant “voluntarily assumed” a 

legal duty to protect or warn against acts of criminal assault by a third person “merely because [a 

defendant] took precautions not required of it” to protect the safety of the plaintiff. A.H., 255 Va. at 

223, 495 S.E.2d at 487. In A.H., we held that a newspaper publishing company did not have a duty to 

warn a 13-year old newspaper carrier of the danger of criminal assault by a third party, despite the 

existence of a special relationship between the carrier and the publishing company and the voluntary 

efforts undertaken by the company to advise its carriers about safety precautions while on their routes. 

Plaintiff’s special relationship with the company did not give rise to a duty to warn or protect him 

against the criminal assault because “it was [not] shown that the prior assaults were at or near the 

location of the plaintiff’s assault, or that they occurred frequently or sufficiently close in time to make it 

reasonably foreseeable that the plaintiff would be similarly assaulted.” Id. at 222, 495 S.E.2d at 486. 

We also rejected plaintiff’s claim that the company “voluntarily assumed a legal duty” to warn 

the plaintiff of the possibility of similar attacks “in advising carriers about safety precautions while on 

their routes and in equipping them with whistles.” Id. at 223, 495 S.E.2d at 487. As we explained, 

“[a]ssuming, but not deciding, that Rockingham’s safety literature, video, and safety whistles were 

inadequate, we concluded that, whatever Rockingham may have voluntarily done in providing this 

material, Rockingham’s actions did not give rise to a duty to give a more complete warning.” Id. We 

further noted that “creation of a duty under these circumstances would discourage other parties from 

taking extra precautions to avoid being subjected to a liability which they otherwise would not have 

had.” Id.

As a general proposition, a duty that does not otherwise exist may be impliedly assumed 

from the defendant’s conduct. See 2 Dan B. Dobbs et al., The Law of Torts § 410, at 671 (2011) 

(recognizing that an implied undertaking may give rise to an assumed duty). For example, we 
8

have recognized that an assumed duty may be undertaken gratuitously by a motorist to another 

motorist or a pedestrian when he signals to the other motorist or pedestrian that it is safe to 

proceed. See Ring v. Poelman, 240 Va. 323, 327, 397 S.E.2d 824, 826 (1990) (noting that an 

assumed duty could arise based on evidence that motorist signaled to another motorist that it was 

safe to proceed, but holding no evidence of proximate cause); Cofield v. Nuckles, 239 Va. 186, 

192-93, 387 S.E.2d 493, 496-97 (1990) (noting that an assumed duty could arise based on 

evidence that the motorist signaled to a pedestrian that it was safe to proceed, but holding no 

evidence of breach of duty); Nolde Bros. v. Wray, 221 Va. 25, 28-29, 266 S.E.2d 882, 884 

(1980) (acknowledging common law principle of assumed duty but holding that law would not 

recognize any such duty where motorist’s gestures could not be interpreted as a signal that it was 

safe to proceed). We have not, however, recognized that an implied undertaking may give rise to 

an assumed duty to warn or protect against the danger of a criminal act by a third party. See 

A.H., 255 Va. at 223, 495 S.E.2d at 487. 

B.

Applying these principles, we must determine whether Terry alleged sufficient facts to 

plead a viable cause of action in tort against defendants based on the theory that they owed a 

duty to warn or protect Ambrister from the danger of criminal assault by his passenger. “The 

issue whether a legal duty in tort exists is a pure question of law.” Kellermann v. McDonough, 

278 Va. 478, 487, 684 S.E.2d 786, 790 (2009).6

 6 The issue of whether the law will recognize an assumed duty in tort, based on the facts

alleged, must be distinguished from the question of whether the facts alleged, which would give

rise to the assumed duty, have been proved. The former is a question of law for the court and the 

latter is a question of fact for the fact-finder. Thus, in Burns, we observed that “when the issue is

not whether the law recognizes a duty, but rather whether the defendant by his conduct assumed

a duty, the existence of that duty is a question for the fact-finder.” Burns, 283 Va. at 672, 727 
9

Terry does not assert that these defendants owed a duty to Ambrister arising from a special 

relationship with either Ambrister or the caller. Terry does not assert that these defendants agreed or 

promised to warn or protect taxicab drivers using Irish Fleet’s dispatch services against the danger of 

criminal assault by passengers. Terry also does not assert that these defendants expressly communicated 

an intent to warn or protect taxicab drivers using Irish Fleet’s dispatch services against the danger of 

criminal assault by passengers. Thus, Terry does not assert facts to support either one of the two 

theories on which we have recognized a duty to warn or protect against criminal assault by a third party 

– a duty arising from the existence of a special relationship and a duty voluntarily assumed by an 

express undertaking. 

Instead, Terry’s claim that defendants assumed a duty to protect Ambrister is based on an 

implied voluntary undertaking. Terry alleges that the dispatchers assumed a duty to warn or protect the 

taxicab drivers using Irish Fleet’s dispatch services against the danger of criminal assaults by passengers 

when they “undertook,” in the scope of their employment with Irish Fleet, to “screen[] calls of potential 

cab fares,” to determine the perceived “safety risk” of the calls in the “selection process of whom they 

 

S.E.2d at 643 (citing Kellermann, 278 Va. at 490, 684 S.E.2d at 791-92; Didato, 262 Va. at 629, 

554 S.E.2d at 48). This does not mean, as Terry suggests, that “if the plaintiff alleges that a 

defendant undertook a duty to act for the safety of another,” the claim cannot be challenged by 

demurrer. What it means is that the court determines whether the law recognizes an assumed 

duty based on the facts alleged and the fact-finder determines whether plaintiff has proven those 

facts. Indeed, in making this observation in Burns, we cited decisions in which we reviewed the 

factual allegations to determine whether they were sufficient to state a claim based on the theory 

of assumed duty. See Kellermann, 278 Va. at 489-90, 684 S.E.2d at 791-92 (determining 

whether plaintiff alleged sufficient facts to plead a viable cause of action against defendants on 

the theory that they assumed a duty to plaintiff’s daughter); Didato, 262 Va. at 629, 554 S.E.2d 

at 48 (determining whether plaintiff alleged sufficient facts to support theory of assumed duty). 

Thus, we reject Terry’s argument that “the dispositive question in this case is factual, not legal.”
10

accept fares from,” and to document “known or troubling” callers in a log book for use of other 

dispatchers.

7

We have previously refused to recognize a voluntarily assumed duty to warn or protect against 

the danger of criminal assault by a third person “merely because [a defendant] took precautions not 

required of it” to protect the safety of the plaintiff. A.H., 255 Va. at 220, 495 S.E.2d at 485. As we 

noted in A.H., “creation of a duty under these circumstances would discourage other parties from taking 

extra precautions to avoid being subjected to a liability which they otherwise would not have had.” Id.

The consequence of imposing an assumed duty to warn or protect against criminal assault based 

merely on voluntary conduct, such as that alleged in the amended complaint, rather than an express 

communication, is that there is no specifically described undertaking. The alleged undertaking is 

necessarily ambiguous and there is no designated beginning or end to the undertaking. As applied here, 

an impliedly assumed duty would be owed by an indefinite number of individuals (all Irish Fleet 

dispatchers who screen and flag calls) to an indefinite number of individuals (all taxicab drivers who use 

Irish Fleet’s dispatch services) and would presumably extend to all dispatching businesses and 

individual employees that engage in a similar screening and documentation practice – a practice that is 

undoubtedly common to the dispatching business in general. 

The existence of a duty to protect against criminal acts of third parties is the exception, and as we 

have stated, arises only in “rare circumstances,” Peterson, 286 Va. at 359, 749 S.E.2d at 312. If we

were to recognize that a duty to warn or protect against the danger of criminal assault by third persons 

 7 Terry states that the dispatchers recorded calls in a log book “maintained as a 

requirement of the City of Petersburg.” To the extent that Terry’s theory is based on actions the 

dispatchers took to comply with applicable local law, such actions could not give rise to an 

assumed duty based on a voluntary undertaking. For purposes of our analysis, however, we 

assume that her claim is based on actions the defendants took voluntarily, not actions required by 

law.
11

could arise outside the context of a special relationship or an express undertaking, the exception would 

swallow the rule. Therefore, we believe the recognition of a voluntarily assumed duty to warn or protect 

against the danger of criminal assault by a third person should be confined to express undertakings. 

Because Terry’s claim that Irish Fleet and Morris voluntarily assumed a duty to warn or protect 

Ambrister against the danger of criminal assault is based on an implied undertaking, the allegations of 

her amended complaint are insufficient to state a claim against these defendants.

III.

 For the foregoing reasons, we hold that the circuit court did not err in in ruling that 

Terry’s amended complaint failed to state a claim for which relief could be granted against Irish 

Fleet and Morris under a theory of assumed duty. Accordingly, we will affirm the judgment of 

the circuit court. 

Affirmed. 

JUSTICE McCULLOUGH, with whom JUSTICE MIMS and JUSTICE POWELL join, 

dissenting. 

 The majority has fashioned a rule, unique to Virginia, under which an assumption of a 

duty to warn of or protect against a crime must be an express undertaking, i.e. no such duty can 

be assumed by conduct. This standard finds no support in our caselaw, in the Second 

Restatement of Torts, in persuasive authority from other states, or in academic commentary. It is 

inconsistent with the concept of an assumed duty as that concept comes to us from the common 

law. The effect of this unique rule is to remove any accountability for those who have, by their 

conduct, assumed a duty to warn or protect against the criminal acts of others and negligently 

performed this duty. The majority thereby leaves persons who have detrimentally relied on such 

conduct without recourse.
12

 The majority acknowledges, as it must, the proposition that a duty can be assumed 

implicitly, that is, by conduct, as well as by an express undertaking. See Restatement (Second) 

of Torts § 323 (1965). Indeed, we have said as much. “It is ancient learning that one who 

assumes to act, even though gratuitously, may thereby become subject to the duty of acting 

carefully, if he acts at all.” See, e.g., Nolde Bros. v. Wray, 221 Va. 25, 28, 266 S.E.2d 882, 884 

(1980) (quoting Glanzer v. Shepard, 135 N.E. 275, 276 (N.Y. 1922)); see also 2 Dan B. Dobbs et 

al., The Law of Torts § 410, at 670 (2011) (Assumption of duty “is a kind of explicit or implicit 

promise, or at least a commitment, conveyed in words or conduct.”). 

My extensive reading of cases (of which there are many) from sister states, treatises, and 

law review articles yields no support for the proposition a duty to warn or protect of a crime, 

uniquely among all assumed duties, can be assumed only by an express promise. 

 In other contexts, we have recognized that a duty that would not otherwise exist can be 

assumed by conduct. See, e.g., Nolde Bros. v. Wray, 221 Va. 25, 266 S.E.2d 882 (1980) (driver 

who negligently gives a hand signal can be held liable for assuming a duty); Fruiterman v. 

Granata, 276 Va. 629, 645, 668 S.E.2d 127, 136 (2008) (physician can by affirmative acts 

assume a duty of care to a non-patient). It is not clear as a conceptual matter why a motorist or a 

physician can be held liable in tort for assuming a duty by conduct, but a person assuming a duty 

by conduct to warn or protect others of a crime cannot.

 As support for its holding, the majority notes that “the duty to protect against criminal 

acts of third parties is the exception and . . . arises only in ‘rare circumstances.’” True enough, 

but the very point of assumption of duty liability is to hold accountable one who assumed a duty 

(through words or conduct) that did not exist in the first place, and who then performed the 

undertaking negligently. 
13

The majority’s chief concern appears to be the factual indeterminacy of pinpointing when 

someone actually has undertaken a duty, and to whom that duty is owed. Surely, this Court can 

fashion a carefully crafted and properly limited standard and judges and juries can faithfully 

apply such a standard.1 As things stand, to paraphrase G.K. Chesterton, a standard has not “been 

tried and found wanting. It has been found difficult; and left untried.”2

 Rather than abjure the concept of a duty that can be assumed by action, I would recognize 

liability for a person who assumes a duty to warn or protect others of crime by conduct, subject 

to the following limitations:

1. Purposeful conduct is required. If the duty is assumed by conduct, it “requires 

affirmative, deliberate conduct such that it is ‘apparent that the actor . . . specifically [undertook] 

to perform the task that he is charged with having performed negligently.’” Yost v. Wabash 

College, 3 N.E.3d 509, 517 (Ind. 2014) (alterations in original).

 1 As applied to this case, the majority notes that “there is no specifically described 

undertaking” and “[t]he alleged undertaking is necessarily ambiguous.” The plaintiffs alleged 

that the dispatching service assumed a specific duty through their conduct, and that was to warn 

cab drivers when a prospective fare presented suspicious circumstances. The complaint details 

these suspicious circumstances. This specific duty was owed not by an “indefinite” number of 

persons – dispatchers and dispatch companies are a definite class – and it was not owed to an 

“indefinite” number of individuals – cab drivers operating in a geographic area constitute a 

readily ascertainable and limited class of persons. The majority also assumes that this practice of 

warning cab drivers of potentially dangerous fares “is undoubtedly common to the dispatching 

business in general.” The record does not support this assumption, and I will confess my lack of 

expertise with respect to taxicab dispatching practices. Moreover, even if a duty is commonly 

assumed, it does not alter the fact that it has been assumed and others have relied on the 

performance of that duty to their detriment.

2

 The original quote is “The Christian ideal has not been tried and found wanting. It has 

been found difficult; and left untried.” G.K. Chesterton, What’s Wrong with the World, pt. 1, § 

V, para. 3, available at http://www.gutenberg.org/files/1717/1717-h/1717-h.htm (last visited 

September 6, 2018). 
14

2. An isolated act does not qualify. An isolated act generally should not give rise to an 

assumed duty in perpetuity. See Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 397 

(Tex. 1991) (“A person’s duty to exercise reasonable care in performing a voluntarily assumed 

undertaking . . . will not normally give rise to an obligation to perform additional acts of 

assistance in the future.”); City of Santee v. Cty. of San Diego, 259 Cal. Rptr. 757, 763-64 (Cal. 

Ct. App. 1989) (County Sheriff’s past reporting of street light outages did not create an ongoing 

duty to do so in the future because, otherwise, “an act of humanitarian assistance can become an 

albatross of mandatory obligation in the future.”). 

3. The assumed duty must be toward a specific person or an identifiable and limited class. 

Reasonable bounds to the concept of assumed duty require that liability should be limited to 

duties assumed toward a specific person or a limited and identifiable class. See, e.g., Pacific 

Indem. Co. v. Whaley, 560 F. Supp. 2d 425, 430 n.4 (D. Md. 2008) (settled law that a person can 

undertake a duty to a class of persons); Krieger v. J.E. Greiner Co., 382 A.2d 1069, 1081 (Md. 

1978) (Levine, J. concurring) (“It is settled tort law that once a person gratuitously embarks upon 

a course of conduct intended to protect another person or class of persons whom he was under no 

preexisting legal duty to protect,” he is bound by that duty.); Schwarz v. Philip Morris Inc., 135 

P.3d 409, 423 (Or. Ct. App. 2006) (“Unlike in a negligence claim where a defendant may assume 

a duty to more than one person or to a class of persons, the intrinsic nature of a claim of 

promissory fraud” protects only the person to whom the promise is made.); November v. 

Chesterfield Cnty., 2017 U.S. Dist. LEXIS 180631, at *15-16 (E.D. Va. Oct. 31, 2017) (rejecting 

plaintiff’s assumption of duty theory because it would impose a duty on the defendant to “protect 

virtually the entire population of the planet,” and “[n]o Virginia case imposes a duty to such an 

enormous and amorphous class”).
15

4. Liability is limited by the extent of the undertaking. Liability for an assumed duty should 

not extend beyond the scope of the actual undertaking. See Davis v. Westwood Group, 652 

N.E.2d 567, 571-72 (Mass. 1995) (defendant voluntarily assumed a duty to hire police officers to 

direct pedestrians across a road between the parking lot and the race track; it did not undertake “a 

much broader duty” of providing safe passage across the road, such as erecting a traffic light or 

building a pedestrian bridge); see also Walls v. Oxford Mgmt. Co., 633 A.2d 103, 106-07 (N.H. 

1993) (observing that a voluntary assumption of duty “is limited by the extent of the 

undertaking” and noting that based on that principle, “a landlord who provides lighting for the 

exterior of an apartment building might be held liable for failing to insure that the lighting 

functioned properly, but not for failing to provide additional security measures such as patrol 

services or protective fencing” (citation omitted)); Feld v. Merriam, 485 A.2d 742, 746-47 (Pa. 

1984) (holding that the provision of one security guard subjects the landlord to a duty of care 

equal to the amount of protection one guard could reasonably be expected to provide). 

5. The plaintiff must have detrimentally relied on the assumed duty. “[T]raditionally, the 

purpose of imposing liability upon a party who has assumed a duty to act is premised upon 

reliance.” Ostendorf v. Clark Equip. Co., 122 S.W.3d 530, 538 (Ky. 2003); see also Restatement 

(Second) of Torts §§ 323, 324A (1965). Consequently, a plaintiff must show he detrimentally 

relied on the assumed duty. 

 In my view, the allegations made in the complaint, and the inferences from those 

allegations, were sufficient, if proved, to establish an assumption of duty and, therefore, to 

survive demurrer. The complaint alleges that the defendants assumed a duty, and it provides a 

concrete example showing that the dispatchers working for Irish Fleet provided a warning to 

another cab driver of criminal danger. In addition, the allegations are sufficient to show that, had 
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a warning been provided, Ambrister would have relied on the warning. I would reverse the 

judgment and remand the case for further proceedings.

For all of these reasons, I respectfully dissent.