In part 1, we examined the kidnapping and death of Barbara “Bobbie” Bosworth in September 2008. Now, the legal process begins.
As police dug into the case, it was decided that Prince William County would lead the investigation and handle the prosecution since Bosworth died there. Keith Baskerville, 19, was indicted for felony murder. But he had suffered a severe head injury, couldn’t speak for a time after the crash, and already had a history of schizophrenia.
After psychologists examined Baskerville, he was found incompetent to stand trial. When he couldn’t be restored to competency, prosecutors agreed to a plea of not guilty by reason of insanity in April 2010, and he now resides in a state mental hospital.
A few months after that, in August 2010, Thomas Bosworth filed his lawsuit in Fairfax County Circuit Court against the owners of Springfield Mall (Vornado Realty Trust), the security company hired to guard the mall (Securitas Corp.) and the Woodbridge convenience store (PDQ Mart) where the kidnappers, Baskerville and Lutchman Chandler, spent nearly 15 minutes with Bosworth before speeding away and crashing.
The lawsuit, filed by Fairfax attorney Peter Everett, pointed out many of the most sensational aspects that had been uncovered since the incident: That the two suspects could be seen clearly on surveillance cameras for 17 minutes in the Springfield Mall covered parking garage, apparently waiting for a victim; that the mall had been plagued by violent crime in the years before Bosworth’s abduction, even advising its customers to be careful there; and that nobody at the PDQ Mart on Cardinal Drive tried to help Bosworth, who was clearly in distress.
The lawsuit alleged that Bobbie Bosworth didn’t have to die. “But for the dereliction of the [PDQ Mart] employees, [Chandler and Baskerville] would not have gotten away from the premises,” the suit alleged.
Securitas, which calls itself “the largest security firm in the world,” responded with this argument: “Securitas did not owe Mrs. Bosworth a duty of care to protect her from the criminal acts of a third party.”
It begs the question, What does a mall security force owe a customer? Under Virginia law, the answer apparently is “Nothing.” Securitas lawyer James Walker, citing state law, wrote that “Generally, a person has no duty to control the conduct of a third person in order to prevent physical harm to another.”
A person or business can be held liable in Virginia for a third party’s acts if it has a “special relationship” with the plaintiff or third party, such as a store inviting customers to shop there, or having knowledge of a third party’s violent past.
But the plaintiff also must show there is a bad “business method” — either a climate of “assaultive” criminal activity or crime that is foreseeable and poses an imminent probability of harm, creating a “duty of care” for the defendant.
In December 2010, Fairfax Circuit Court Judge Charles Maxfield agreed with Securitas.
He found no “special relationship” between the security company and Bobbie Bosworth — that Securitas had any interaction with her or the kidnappers, knew anything about the kidnappers or or witnessed any events before or after the abduction.
Indeed, in its first response to the suit, Securitas wrote that it “does not know what the security cameras did or did not record or what action was taken by the police or security personnel on site.” That’s quality security work.
Securitas’s contract was with the mall owner, Vornado, not the customer, the judge noted.
“Never has the Virginia Supreme Court required the duty of protection to be a guarantee of security,” Maxfield wrote. “Arguably, this is in recognition of the harsh reality that crime can and does occur despite our best efforts to prevent it.”
Maxfield allowed Bosworth’s attorneys to amend and refile their suit. They pointed out that Securitas’s contract with Vornado stated that “Security guards shall have the function and duty of safeguarding the patrons of the owner’s shopping center...physical protection of patrons...prevention of assaults and robbery.” But Securitas raised the same legal arguments, and they were dismissed from the case again.
Vornado and PDQ took their best shots to win dismissals too, though their situations were different from Securitas: They had to acknowledge they had a special relationship with customers, by inviting them to shop on their property. But did they have such a crime problem that they had a "duty of care” to Bobbie Bosworth?
Vornado argued that it did not have or want an assaultive climate. “The mall does not derive any benefits from having crime on its premises and certainly does not encourage such conduct,” attorney Walter Williams wrote. “Put another way, the mall did not kill Mrs. Bosworth; the assailants did.” Chandler and Baskerville weren’t known to the mall, so their actions weren’t reasonably foreseeable.
PDQ argued that there was no legal remedy for failure to act. Customers reported that they had asked the store’s manager to call 911 while Bosworth was being held outside by the abductors, and the manager refused. PDQ’s filings do not deny that.
“There is no duty requiring a business owner or operator to take positive action to protect a business invitee from assault by third parties while the invitee is on the business premises and the assault is already in progress,” lawyer Daniel Robey wrote.
But Maxfield did not release Vornado or PDQ from the case. This led Vornado to turn around and sue Securitas, saying the security company’s contract would indemnify Vornado in the event of a lawsuit. Vornado later dropped the case, but can revive it now that there has been a settlement that will require Vornado to pay Thomas Bosworth.
Also in January of this year, Vornado sued The Sports Authority, and revealed that there was surveillance video showing Chandler and Baskerville stealing the replica BB gun they used on Bobbie Bosworth.
That suit made the claim that the video showed a store employee providing a tool which enabled the teens to pry the gun out of its plastic packaging, and that the employee high-fived one of the teens before walking away from them.
“Through its employee,” Vornado’s suit alleged, “The Sports Authority assisted, aided, abetted and otherwise was an active participant in Ms. Bosworth’s abduction.”
The Sports Authority’s lawyer said the video did not show that, and even if it did, the theft of the gun was a non-violent crime and not foreseeably linked to the subsequent crime. The Sports Authority was dismissed from the case, but the video could have made a dramatic appearance at trial, along with the surveillance video from the PDQ Mart.
The trial was set for Monday. Both sides had experts lined up. Bosworth’s lawyers, led by Everett and Rob Stoney, would have the frightening facts on their side, but would have to overcome:
• the legal arguments about “duty of care,” “assaultive crime,” “third parties” and all the criteria required in Virginia law for a plaintiff;
• the question of whether the businesses were responsible for the ultimately lethal actions of two malicious teenagers, and
• whether Bobbie Bosworth’s death could have been prevented by the mall or the convenience store.
On Wednesday, Vornado and PDQ agreed to settle, Everett said. He declined to discuss the case further, as did all of the defense lawyers. When the settlement is finalized and presented to Maxfield, the dollar amount will become public record.
Springfield Mall, meanwhile, is being gutted and made over. In March, all the tenants were given 120 days to clear out, except for Macy’s, Target and J.C. Penney, and a plan to create a town center-like complex is underway.