The rape of a 13-year-old girl after a bus driver forced her to leave his vehicle in a “dangerous” neighborhood of Virginia Beach, Va., was the “foreseeable result” of his disregard for her safety, the girl argues in a $20 million lawsuit.

Common carriers are not “absolute” insurers of a passenger's safety and the Jane Doe plaintiff does not allege Kokou Fedy, a driver for the Hampton Roads Transit Authority (HRT), knew or should have known that another passenger on his bus would assault her.

But the complaint says Fedy violated the common carrier's duty to discharge a passenger in a reasonably safe place by leaving the plaintiff on the Virginia Beach Oceanfront at around 1:45 a.m. on a Sunday morning. Calvin Boyd, who got off at the same stop, took her to a vacant building where he raped her.

The Oceanfront “is known to be a frequent location for murders, muggings, assaults, and rapes,” Doe alleges, and

HRT and Fedy knew that they were leaving Doe in an unsafe place where her safety and well-being was likely in jeopardy.

Under the broader negligence standard of “reasonable foreseeability,” Doe does not have to show that Fedy had notice of a “specific danger just prior to the assault.” Her attorney, Jason C. Roper (McKenry Dancigers Dawson & Lake, Virginia Beach), says HRT would be similarly liable if it stranded a passenger on the Virginia Beach Expressway at night.

“We are going to offer expert testimony that the Virginia Beach Oceanfront is not a safe place at 2:00 a.m. on an early Sunday morning,” he says.

According to the complaint, Doe boarded Fedy's bus shortly after midnight on Sept. 24, 2006. She had left her grandparents' home earlier that night intending to “walk around and try to relax” after a stressful day.

Virginia Beach has an 11 p.m curfew for minors and Doe, who was wearing pants and an oversized sweater belonging to her grandfather, “was essentially in her pajamas.” Yet Fedy allegedly “did not ask how old Doe was, ask her where she was going, ask her the location of her parents or guardian, or ask her if she needed any assistance.”

When the bus reached its last stop at the Oceanfront, all the passengers except Doe, who had never ridden a public bus before, immediately disembarked. Fedy “could see that Boyd was waiting outside the HRT bus for Doe despite the fact that it was raining,” but “simply allowed her to exit” the bus.

There is precedent in Virginia for holding a transit company liable for injuries to a passenger who was raped after being “required to leave the defendant's train” in an area "infested by worthless, irresponsible and questionable characters known as tramps and hoboes.” Hines v. Garrett, 108 S.E. 690 (1921).

Hines was a “notice of a specific danger” case, but the Virginia Supreme Court has more recently ruled that

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. Taboada v. Daly Seven, 626 S.E.2d 428 (2006).

Many readers of The Virginian-Pilot newspaper have condemned Doe's case as frivolous, with one saying bus drivers “are NOT babysitters” and others suggesting she should sue her grandparents. “What happened is a tragedy and should never have happened, but why is it up to other people to police our children?” a reader asked.

But the courts are likely to focus on the narrow issue of whether Fedy exercised the “highest degree of care and skill which reasonably may be expected of intelligent and prudent persons” when he let Doe get off his bus.

Doe is seeking $20 million in compensatory and punitive damages for "physical and mental suffering that will last her entire lifetime." Boyd allegedly infected her with the incurable genital herpes virus.

By Matthew Heller
3/18/08