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Lawyers who defend public shooting cases expect the Virginia Polytechnical Institute shooting victims or their families to sue their school, but say that such suits rarely prevail and that institutions can take steps to limit their liability exposure. Mary Lynn Tate, principal of the Tate Law Firm in Abingdon, Va., was counsel to the Appalachian School of Law in Grundy, Va., in January 2002 when a deranged student killed three and wounded three others. Two years after the shootings, the family of slain student Angela Dales and three other student victims sued the school, alleging that school officials ignored students’ and staff warnings that the shooter, a student with chronic academic problems, was a threat. The plaintiffs settled for $1 million in January 2005. Tate said that academic institutions in the post-Columbine era should have worst-case-scenario protocols that clearly identify lines of communication and procedures. Although the Virginia Supreme Court has never addressed whether there is a school-student relationship that includes a duty to protect in these situations, the 4th U.S. Circuit Court of Appeals has, Tate said. Seidman v. Fishburne-Hudgins Educational Foundation Inc., 724 F.2d 413 (4th Cir. 1984). Plaintiffs probably will not be able to assert claims under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, a landmark 1990 federal law that requires colleges and universities to notify students in a timely manner of any ongoing threat, Tate said. Kay K. Heidbreder, general counsel for Virginia Tech, was not available for comment. Michael J. Gorby of Gorby, Reeves & Peters in Atlanta, and author of Premises Liability Law in Georgia, said most cases arising from mass tragedies such as this “don’t even get past summary judgment.” Premises liability actions in these circumstances are a long shot because the criminal act of shooting severs the connection between any pre-existing negligence on the school’s part and what happened afterward, Gorby said. “Obviously, Virginia Tech should have warned the public after the first set of shootings . . . The biggest hurdle Virginia Tech has is: Once they were aware that there was a dangerous situation present, what steps should they have taken to protect the other students?” he said. The plaintiffs “are going to have to come up with pretty substantial evidence that [the school] should have known about the danger and did nothing to protect students from it,” said Gorby, who was lead defense counsel in the Mark O. Barton “Atlanta Day Trader” cases in which Barton killed or wounded 20 people in Atlanta.

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