Lawletter Vol. 51, No. 4
Natalie K. Mitchell—Senior Attorney
The law in Virginia, as with most states, is that a business owner and its invitees have a special relationship in the law, in that the business owner has a duty to its invitees to use ordinary care to maintain the premises in a reasonably safe condition. In Peninsula Family Skating Center, Inc. v. Willis, Record No. 1623-25-1, 2026 Va. App. LEXIS 333, 2026 WL 1735148 (June 16, 2026), an unpublished decision, the Virginia Court of Appeals decided whether this duty, or general negligence principles, required the employees of a skating rink to call an ambulance when a skater suffered a medical emergency while on the premises. 2026 Va. App. LEXIS 333, at *7.
In Peninsula, the Skating Center’s employees were asked to call an ambulance when a child began to suffer an asthma attack. The request was denied, and the child ultimately died four days later. The administrator of the child’s estate filed a wrongful death suit, alleging that the Skating Center owed a duty to protect the infant and to call for medical attention and that it breached the duty by failing to call for medical help, which was the proximate cause of the decedent's death.
The Skating Center filed a demurrer, which the Circuit Court of Newport News overruled. The appellate court, on de novo review, reversed the ruling, holding that the Skating Center owed no duty to the decedent to call an ambulance for medical attention, under either premises liability or general negligence principles.
Because “the business-invitee relationship does not transfer a business owner's premises liability duty into a general duty to rescue from a medical emergency that the owner did not cause or worsen,” the alleged duty breached by the Skating Center “did not arise from the special relationship, but from general negligence principles.” Peninsula, 2026 Va. App. LEXIS 333, at *4-5. The court recognized that the Virginia Supreme Court has chosen not to adopt the heightened duty found in the Restatement (Second) of Torts § 314(A)(1)(b) (1965) (requiring a business to give its invitees first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others).
Applying general negligence principles, the appellate court recognized that the Skating Center had a duty to exercise due care to avoid injuring its invitees, and that, at common law, “there is no general duty to rescue.” Id. at *6-7 (citing Stoots v. Marion Life Saving Crew, Inc., 300 Va. 354, 362, 867 S.E.2d 40 (2021); W. Page Keeton et al., Prosser & Keeton on Torts § 56 at 375 (5th ed. 1984)). The court rejected the Estate’s argument that there was still a duty to call for emergency services even if there was no duty to rescue, finding that the alleged duty was “in reality, a duty to rescue.” Id. at *6.
[T]he employees were asked to assist in rescuing the decedent from the injury he was already suffering from, an injury that, according to the pleadings, came about from no fault of the Skating Center. . . . [T]here are no allegations that the Skating Center prevented others from calling an ambulance, or that employees said they would request medical care and then failed to do so.
Id. at *5-6. “Negligence is the violation of a legal duty which one owes to another, and where there is no legal duty there is no actionable negligence.” Id. at *7 (quoting RGR, LLC v. Settle, 288 Va. 260, 275, 764 S.E.2d 8 (2014)). Thus, because the Skating Center had no duty, under premises liability or general negligence, there could be no negligence and the demurrer should have been sustained. Id. The case was reversed and remanded. Id.
