Lawyer not liable when his independent contractor process server was killed serving divorce papers

A Virginia lawyer hired a process server as an independent contractor to personally serve legal papers on a husband in a tense divorce case.  The lawyer knew that the husband owned a gun and had expressed concern that the husband could potentially become violent, but he did not relay this information to the process server.  The process server tried a number of times to personally serve the husband without success.  The lawyer got wind that the husband might try to leave the country, so he told the process server to do what he had to do to serve the husband quickly.  During his final attempt at service, the process server was shot and killed by the husband, and his body was found by police three days later in the trunk of his own car in Harrisonburg, Virginia.

The process server’s widow sued the lawyer for wrongful death, on the ground that he should have warned the process server that the husband was potentially dangerous and carried a gun.  The lawyer countered that because the process server was an independent contractor and not an employee, the lawyer had no legal duty to relay what he knew about the husband to the process server.

Last week, the Supreme Court of Virginia ruled that the lawyer had no legal duty to warn the process server about the potentially dangerous situation, and therefore that the lawyer was not liable under a negligence theory for the process server’s death.  As the court noted, in most situations a person does not have a legal duty to warn or protect another person from the criminal acts of a third person.  It is only when a special relationship exists that a person may have a duty to warn or protect another from danger.  Some of the special relationships that Virginia has recognized as creating such a duty are: employer/employee, hospital/patient, innkeeper/guest, and common carrier/passenger.  In this case, the widow was asking the court to expand this duty to the employer/independent contractor relationship, but the court declined to do so in this particular case.  The court noted that the process server was experienced in his job, and that, while he took some direction from the lawyer, for the most part he retained control over how he did his work.

This case would likely have been decided in the widow’s favor if the process server had been an actual employee of the law firm and performed his services specifically at its direction.  Therefore, employers must be aware that they do have a special relationship with their employees, and should take reasonable precautions to make sure their employees operate in a safe work environment and are warned of any unique risks they may face on the job.

Declan Leonard is managing partner of the Washington, DC regional business law firm Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com.