DEBARA D. BROWN, EXECUTOR OF THE ESTATE OF ARTHUR GREGORY BROWN
SHERWIN JOHN JACOBS
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY. Jane M. Roush, Judge.
PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, and Powell, JJ., and Russell and Koontz, S.JJ. OPINION BY JUSTICE S. BERNARD GOODWYN.
[289 Va. 211] S. BERNARD GOODWYN,
In this appeal, we consider whether there is a special relationship between an attorney and a private investigator hired by that attorney to serve process, which imposes a duty upon the attorney to warn the private investigator of potential danger from criminal assault by a third party.
On September 1, 2011, Debara D. Brown (Brown) filed a complaint as executor of the estate of her husband Arthur Gregory Brown (the decedent) in the Circuit Court of Rockingham County. In her complaint, Brown asserted a cause of action for wrongful [289 Va. 212] death, pursuant to Code § 8.01-50, against Ali Al-Ibrahim Abid (Abid), alleging that Abid shot and killed the decedent, a private investigator, while the decedent was attempting to serve " divorce papers" on Abid in Harrisonburg, Virginia.
Brown was granted leave to file an amended complaint that added a wrongful death claim against Sherwin John Jacobs (Jacobs), the attorney who hired the decedent to serve Abid. Brown claimed that Jacobs was negligent because he did not warn the decedent " of the danger of personally serving . . . Abid or of the danger that . . . Abid would cause [the decedent] harm or was a risk to cause him harm."
The circuit court sustained Jacobs' demurrer to the amended complaint. Brown filed a motion for reconsideration and motion for leave to amend along with her proposed second amended complaint, which proffered additional allegations in support of her claim. After considering Brown's motions and the proffered second amended complaint, the circuit court denied both motions and dismissed the case against Jacobs with prejudice. Brown appeals.
The amended complaint asserts that the decedent was a private investigator in Harrisonburg, who owned Argus Investigative Services. Jacobs is an attorney who hired the decedent to personally serve " divorce papers" on Abid and instructed the decedent regarding where and when to serve Abid. The amended complaint also alleges that when Jacobs hired the decedent, Jacobs knew Abid owned a gun, but Jacobs did not warn the decedent that Abid had a gun or of the possibility of danger upon serving Abid.
On March 3, 2011, while the decedent was trying to serve process on Abid, Abid shot and killed him. Three days later, police found the decedent's body in the trunk of his car in Harrisonburg.
[289 Va. 213] In the proffered second amended complaint lodged with the circuit court, Brown amplified her allegations against Jacobs. In the second amended complaint, Brown asserted that Jacobs represented Abid's wife, Margot Kons (Kons), in a divorce proceeding and that Jacobs knew " that Abid wished to be the dominant partner in his marriage with Kons, and that [he] was greatly upset by [her] unwillingness to be more subservient to [him]," and that Abid had " developed a relationship with another woman outside of his marriage with Kons." Brown alleged that Abid carried his gun with him everywhere and exhibited paranoid behavior. She further alleged that " Kons had informed [Jacobs] that Abid was behaving strangely." The second amended complaint alleged that " Jacobs was ...