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A petition for rehearing has been filed with the Virginia Supreme Court on behalf of a Centreville family whose daughter was killed during the 2007 Virginia Tech massacre.

On Nov. 26, Reston attorney Robert T. Hall filed the petition on behalf of Grafton Peterson, father of Erin Peterson, a 2006 graduate of Westfield High School who was one of the 32 people killed by fellow Westfield graduate Seung-Hui Cho in the rampage. Peterson filed the original lawsuit in 2009.

The suit, co-filed alongside a similar suit by the parents of another Virginia Tech student, was originally heard in March 2011 in Christiansburg, where a jury sided with the plaintiffs and found the school negligent. The jury awarded $4 million each to both families, but the Commonwealth immediately filed a motion to have the award reduced.

As a wrongful death claim, the original lawsuits initially were eligible to be heard by a jury which could recommend damages. But under Virginia law, when the Commonwealth became the only defendant left in the case, the suit became subject to tort law restrictions. Tort law deals with situations where a person’s behavior allegedly has caused someone else to suffer loss or harm. Under Virginia law, tort law claims are individually capped at $100,000.

After four years of going through the lower courts, both sides filed formal notices of appeal to the Virginia Supreme Court. On Oct. 31, the Commonwealth’s highest court ruled that Virginia Tech had not been negligent and overturned the lower court’s ruling that it had been.

The Virginia Supreme Court ruled unanimously that “as a matter of law, the Commonwealth did not have a duty to protect students against third party criminal acts” and “there was no duty for the Commonwealth to warn students about the potential for criminal acts by third parties.” It then reversed the judgment of the lower court.

The Nov. 26 petition for rehearing now argues that “the university had a statutorily mandated duty to ensure the protection and safety of students” and takes the Supreme Court to task for its decision, stating that “the court’s blind-eye approach to these mandated and assumed duties is the equivalent of observing that there is no common-law duty for a motorist to obey the speed limit.”

The petition further states that “After the shootings at Norris Hall, the administration issued false or misleading public statements attempting to explain, justify or excuse its failure to warn the campus of the first two shootings. All such statements were entered into evidence as guilty knowledge that it should have warned.”

Hall says his client has a constitutional right to a jury trial, and that the Supreme Court denied his client that right.

“The university’s efforts to justify or excuse why they didn’t warn was made up of smoke and mirrors, and the jury saw through them,” he said. “Sadly, the [Supreme] Court relied on facts the jury found false, and deprived the two families of their constitutional right to have the matter decided by a jury.”

According to Supreme Court Deputy Clerk Lesley Smith, the seven justices who heard the original case will now review the petition and decide if the court will agree to a rehearing. According to Smith, there is no specific time limit for the court to make that decision.

For the last four years, both Virginia Tech and the Commonwealth maintained that the university was not negligent, and that Cho’s actions were solely to blame. “The Virginia Supreme Court has found what we have said all along to be true,” said Brian Gottstein, a spokesman for Virginia Attorney General Ken Cuccinelli, after the Supreme Court’s Oct. 31 ruling. “The Commonwealth and its officials at Virginia Tech were not negligent on April 16, 2007. Cho was the lone person responsible for this tragedy.”

When asked about the Nov. 26 petition for a rehearing, Gottstein maintained the correctness of the Oct. 31 Supreme Court ruling. “We think the court already correctly decided the issue, and nothing in the latest filings changes that,” he said.

Virginia Tech spokesman Larry Hincker declined to comment.

gmacdonald@fairfaxtimes.com