The concept of duty in tort claims is an important one. To have a tort claim, there must be a duty, breach of duty, the breach must have caused some damage, and then finally you have to prove what the damage is.
However, proving the existence of a duty can be daunting.
The threshold question is what is the source of the duty. In Perlin v. Chappel, 198 Va 861 (1957), the court stated the duty of ordinary care may arise from statute, ordinance or relationship of the parties. In those instances where a statute or ordinance gives rise to the duty, then the question must be asked whether or not the statute or ordinance also gives rise to a cause of action. If it does not, then there is no cause of action based upon that statute.
Duty in Personal Injury Cases
The analysis that should be engaged in is:
- First, you must define the nature of the case. In particular is it a premises liability case or a general negligence case.
- Next, is there a special relationship between the parties that gives rise to a duty;
- Was there a duty that was assumed.
- Next, was the defendant a common carrier
- Next, if there is a statutory duty, does that statute then give rise to a cause of action?
First let’s look at duty in a somewhat abstract form:
General Negligence Duty
In RGR, LLC v. Settle, 288 Va. 260, 275, 764 S.E.2d 8, 16 (2014) the Virginia Supreme Court recognized a duty to exercise due care to avoid injuring others. Under that case the only relationship that must exist for a duty to arise is a nearness of the parties, either in time or space to place the plaintiff in danger from the defendant’s acts. RGR cited the case of Southern States v. Garber, 205 Va. 757, 761 (1965). The court noted that if one person is placed in a circumstance with regard to another, that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the other person, then a duty arises to use ordinary care and skill to avoid such injury.
The Source of the Duty
Next you need to figure out where the duty came from i.e., what is the source of the duty:
1. Common Law
The English common law may be the source of a duty in tort that is recognized in Virginia. However the problem is trying to find a case prior to the so-called “reception” ordinance which was effective either in 1776 or 1792. White v. United States, 300 Va. 269 (2021) One such case is Coggs v. Bernard, 2 Ld. Raym. 909, 92 Eng. Rep. 107 (K.P. 1703) Coggs held that a person who volunteered without compensation to transport barrels of brandy was liable to the owner for damages resulting from negligent handling that resulted in the loss of several barrels. Most searches for English common law precedent are not going to be successful. The mere non-existence of such a case does not mean that the English common law necessarily rejected the idea of there being a duty. With Midkiff v. Midkiff, 201 Va. 829 (1960), the court noted that it cannot be assumed that just because no authority has been found that no such right existed in common law.
Love v Schmidt
In the case of Love v. Schmidt, 239 Va. 357, 389 S.E.2d 707 (1990), the court held that the duty of a landlord of an office building to use reasonable care to keep its property in safe condition cannot be delegated. In addition if the owner hires a third party to perform these duties, then whatever knowledge that third party has about the condition of the property can be imputed to the owner.
The Virginia Jury Instructions talk about the duty that is owed by an occupant. However the term “occupant” is not defined in the jury instruction (VMJI 23.040) but an occupant includes an owner. Also it may include a tenant in some circumstances. Likewise it may include a property manager.
2. Zone of Danger – The Duty Is Not Abstract
The zone of danger concept goes back to Palsgraf, 162 N.E. 99. The presence of a person within this so-called “zone of danger” may give rise to a duty. In the Palsgraf case, Mrs. Palsgraf was physically too far away from the explosion to be considered within the zone of danger. That zone of danger is a position with regard to another person that everyone of ordinary sense would recognize that if he did not use ordinary care and skill in his own conduct with regards to those circumstances, he would cause danger of injury to that person. This may give rise to a duty to use ordinary care and skill to avoid such injury. Standard Oil v. Wakefield, 102 Va. 824, 831 (1904); Overstreet, 148 Va. 306, 317 (1927)
Likewise in Quisenberry v. Huntington Ingalls, Inc., 296 Va. 233 (2018), the court noted that duty is not in the abstract but rather it extends to specific persons. However the majority decision in Quisenberry did rely upon foreseeability in concluding that there was a duty.
Nearness
The duty is always a duty owed to a discernable individual, or to a class of which that individual is a member. Dudley v. Offender Aid and Restoration of Richmond, 241 Va. 270, 278 (1991). You must look at the concept of nearness. The class to whom the duty is owed “includes everyone who comes within the [defendant’s] reach.” Id. “This is because ‘[t]he risk reasonably perceived defines the duty to be obeyed, and risk imports relation: it is the risk to another or to others within the range of apprehension.’” Quisenberry, supra at 243 (quoting Palsgraf v. Long Island R.R. Co.¸ 248 N.Y. 339 (1928)).
The scope of the duty does not necessarily depend on any special relationship between the parties. Rather, the “relationship” required “is a sufficient juxtaposition of the parties in time and space to place the plaintiff in danger from one of the defendant’s acts.” RGR, supra, at 280
A motorist may have a claim against a farmer who allows his cow to escape from his farm onto a public road. In Quisenberry v. Huntington Ingalls, Inc., 296 Va. 233, 818 S.E.2d 805 (2018) the Virginia Supreme Court found that a mobile hazard such as asbestos which leaves the employer’s property is not unlike livestock leaving the farm. However it is not the foreseeability of the harm that creates the duty but rather it is the proximity in time and space which puts the plaintiff in danger from the defendant’s acts.
Tenant
In Steward v. Holland Family Properties, LLC, 284 Va. 282, 186 (2021), the plaintiff sued for injury to a child from lead poisoning in a rental unit. The court stated that neither the lease nor the Virginia Residential Landlord-Tenant Act created any common law duty. But the existence of such common law duty was a prerequisite to there being a basis for a claim.
Invitee
In Williamson v. The Old Brogue, Inc., 232 Va. 350, 355 (1986), the court stated that the existence of a dram shop statute which may have been violated by the defendant did not give rise to a common law duty to a third party injured by a drunk patron (former invitee) of the bar.
Place of Entertainment
In Whitfield v. Cox, 189 Va. 219 (1949), the court said that the owner/proprietor of a place of entertainment has a duty to exercise such care as would an ordinary careful, prudent person in the same position and circumstance.
3. Creation of Danger
If the facts justify it, you may want to plead on a theory of creation of danger. This is not a theory based on omissions. It is based on commissions. It should be pled with active verbs. In particular if the facts support it, set forth what the defendant did to place the plaintiff in a position of peril.
4. Duty in Personal Injury Cases-Special Relationship
The relationship between the parties is critical. The relationship is essential to duty. Negligence must be in relation to some person. Kent v. Miller, 167 Va. 422, 425 (1937) Relationship relates to the concept of zone of danger because the relationship must be such that the person is within reach of the defendant’s conduct. Dudley v. Offender Aid and Restoration of Richmond, Inc., 241 Va. 270, 278 (1991)
In some cases, not only must a relationship exist but it may have to be a special relationship in order to give rise to a duty.
What is Special
With A.H. v. Rockingham Publishing Co., 255 Va. 216, 495 S.E.2d 482 (1998), a minor was sexually assaulted while delivering newspapers in the early morning hours. The minor brought a negligence action against the newspaper. He alleged that the newspaper failed to inform the plaintiff of three previous pre-dawn assaults of a sexual nature upon other young carriers who were delivering newspapers. The court noted in that instance that there was a special relationship. Also the court noted that the newspaper had no duty to warn or protect the plaintiff against harm unless the danger of an assault was known or reasonably foreseeable. The court found that there was no duty.
In A.H. v. Church of God, 297 Va. 604 (2019) minor attendees at church activities were sexually abused by a church deacon. The Supreme Court concluded that the Complaint sufficiently alleged the existence of a special relationship giving rise to a duty to protect which duty was breached. Therefore the demurrer should have been denied.
In Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125 (2000), the court noted the general rule is that no one has the duty to protect another from the conduct of a third person. If there is a special relationship that exists between a plaintiff and a defendant which gives rise to the right of protection to the plaintiff or between the defendant and a third person which imposes a duty upon the defendant to control the third person, then such a duty does exist.
In Egan v. Ream, 2025 Va. App. LEXIS 487, the court found that a special relationship exists as to a special needs student.
5. Duty in Personal Injury Cases-Assumed Duty
In Nolde Bros. v. Wray, 221 Va. 25, 28, 266 S.E.2d 882, 884 (1980), the Supreme Court recognized as ancient learning that one who assumes to act for whatever reason may become subject to the duty to act carefully. Tugman v. Riverside, 144 Va. 473 (1926)
With Didato v. Strehler, 262 Va. 617, 629, 554 S.E.2d 42, 48 (2001) the Supreme Court dealt with a medical malpractice case where one person undertakes services for another. Whether that is done for money or not, the person who undertakes the services that are needed to protect the other person or the other person’s things may be liable for injury. This liability arises if he fails to exercise reasonable care in carrying out these functions.
Also this applies if the conduct increases the risk of harm or the harm is suffered because the first party relied upon the undertaking. In other words, if one assumes a duty, then he has a duty to exercise reasonable care to perform. That line of thought may be applied to property managers hired by owners. See also Kellerman v. McDonough, 278 Va. 478, 489 (2009); Burns v. Gagnon, 283 Va. 657, 672 (2012); Cline v. Commonwealth, 2016 WL 4721393 (unpublished)
6. Statutory Duty
In many instances a statute may set forth a duty. If it does not however give rise to a specific cause of action, then you cannot necessarily rely upon that statutory duty as the basis for your cause of action. If it does give rise to a cause of action, then so be it.
In Williamson v. The Old Brogue, Inc., 232 Va. 350, 355 (1986), the court stated that the existence of a dram shop statute which may have been violated by the defendant did not give rise to a common law duty to a third party injured by a drunk patron (former invitee) of the bar.
7. Common Carrier
In Murphy’s Hotel, Inc. v. Cuddy’s Administrator, 124 Va. 207, 97 S.E. 794 (1919) the court said that the operator of a passenger elevator in a hotel or public building is a common carrier. A common carrier owes the highest degree of care to the persons on the elevator. However that does not mean that all owners of elevators are common carriers. Also in this case the court said there is a presumption of negligence of the property owner. The owner is at fault unless there is proof showing he is not at fault.
In Hines v. Garrett, 131 Va. 125 (1921), a railroad train stopped almost a mile beyond the passenger station. A conductor then discharged a young female in an area known to be inhabited by hobos. The young woman was subsequently raped. The court recognized a high degree of care that a common carrier owes its passengers and recognized a carrier’s duty to protect the passengers from criminal acts which are reasonably foreseeable. In that instance the court held that the carrier could be liable.
8. Action v. Inaction
The action/inaction or misfeasance v. nonfeasance analysis most often comes into play where you’re dealing with a contractor. It can however apply in other circumstances. If work on the premises is done by an independent contractor and that causes injury, you may need to sue that contractor. Kesler v. Allen, 233 Va. 130 (1987)
The Virginia Supreme Court adheres to the so-called “traditional view” that there is no tort liability for nonfeasance (omission) by a contractor.
Non-feasance
If a contractor signs a contract with a building owner to clean the premises and then fails to clean up the premises, that is simply a failure to act i.e., nonfeasance. But if the contractor undertakes to clean up the site and fails to do so reasonably, then that may be misfeasance giving rise to a cause of action because he had a duty to act reasonably. Where there is an act of misfeasance by mopping a floor without posting warning signs, the allegations sound in tort rather than contract.
Where a party assumes its contractual obligation by mopping the floor and providing janitorial services, once it did so, it had an independent obligation to exercise reasonable care to prevent foreseeable injuries to foreseeable plaintiffs.
As stated in Kaltman v. All Am. Pest Control, Inc., 706 S.E.2d 864, 870 (Va. 2011), “Just because the application of pesticides is included in [defendant’s] contractual duty to control pests, it does not follow that the [plaintiffs] have contracted away their common law and statutory rights.”
Contractor
Indeed in Kaltman, the Virginia Supreme Court explained that a party performing according to a contract can be sued for negligence if its actions breach a common law duty that is independent of its contractual duty, 706 S.E.2d at 970. In that case, a homeowner contracted with a pesticide contractor “to apply chemicals to control…pests” in the home. Id. at 867. However nstead of using chemicals approved for use in residential buildings the contractor applied “concentrations of…a toxic ingredient…not licensed for residential use.” Id. at 866-867.
Once hauled into court, the contractor argued that no tort remedy existed because it only breached a contractual duty to apply the appropriate pesticide. Id. at 868. But the court disagreed, concluding that by erroneously applying toxic chemicals, the contractor “breached common law and statutory duties independent of the company’s contractual duty to control pests.” Id. at 870.
Tingler
In the more recent case of Tingler v. Graystone Homes, Inc., the Virginia Supreme Court reaffirmed its holding in Kaltman, noting that “the gist of the case was clear: it was the contractor’s affirmative act of using a dangerous pesticide, not the failure to use a safe pesticide, that mattered.” 834 S.E.2d at 257. The court likened this to a home builder who “could be sued in tort if he negligently dropped a beam on a bystander or if he negligently left an inconspicuous hole in an unfinished floor into which a visitor fell,” even if he was handing the beams or finishing the floor pursuant to a contract. Id. at 258.
Applying this reasoning to the facts in Tingler, the court determined that the allegations against the defendant- that it had failed to weatherproof a home- did not “sound in tort” and did not implicate a common law duty because the defendant was only alleged to have negligently “failed to do what the contract had required…” Id. at 261. Instead the court held that these allegations “predominate as instances of nonfeasance, not misfeasance or malfeasance.” Id. (emphasis added)
Property Manager
Does a property manager of a building have a duty that cannot be delegated as far as maintaining that property? In terms of its relationship with the owner, the property manager probably does. However the question is whether that property manager owes a duty to someone who is visiting the property. If the property manager qualifies as an occupant, as stated above, then it probably does. However the prevailing rule in Virginia is that an owner’s duty to maintain the property in reasonably safe condition cannot be delegated to a third party such as a property manager but see Milburn v. J.C. Penny Properties, Inc., et al., 2007 WL 1523528 (2007)
If a property manager is employed by the owner, he is required to maintain the premises. Failure to do so is fault on his part. Richmond and MR Company v. Moore, 94 Va. 493, 506 (1897) For a free consultation about your case, contact us.
If a party has a duty by law or contract to maintain property then that duty cannot be delegated. Bowers v. Martinsville, 156 Va. 497, 515 (1931). As a result, the manager may have a duty to keep the premises safe but that duty is owed to the owner.
If the property manager that you’re considering suing is an individual, that individual employee could have some liability. In Hope v. Commonwealth, 92 Va. Cir. 6 (2015), a demurrer was denied where the assertion was made that a transportation official had a duty to the driver.
9. Factors
To further confuse the issue of duty and the source of duty, there are cases that simply cite certain factors that may give rise to the existence of a duty. In Shoemaker v. Funkhouser, et al., 299 Va. 471, 478 (2021), the court noted that what should be looked at is the likelihood of injury, the magnitude of the burden of guarding against it, the consequences of placing that burden on the defendant. The existence of the duty does not depend upon foreseeability alone.
10. Policy Considerations
Each case of course must be evaluated on its individual facts. That is further evidenced by various policy considerations that the court has taken into account in determining whether or not a duty exists. In Dudley, the court held that the operator of a halfway house owed a duty to neighbors to protect them from a dangerous felon over whom it had taken charge. In that instance the court noted that the duty may apply not only to a particular plaintiff but to a class of persons. In its analysis, the court also factored in foreseeability.
What is Probably Not a Source of Duty
There are some things that probably are not a source of duty:
1. Foreseeability
Some people perceive foreseeability as being a prerequisite to the existence of a duty. That is not so. In Old Brogue, the court rejected the existence of a duty even though the injury may have been foreseeable.
Criminal Context
Wright v. Webb, 234 Va. 527 (1987) dealt with the issue of whether or not a motel owner had a duty to protect a theatre patron from assault. In that instance, there were prior reported instances of property crimes in the motel, the parking lot and on adjacent property. The court noted that acts of assaultive criminal behavior cannot reasonably be foreseen.
In Wright, the court held that a business invitor, whose method of business does not attract or provide a climate for assaultive crimes, does not have a duty to take measures to protect an invitee against assault unless he knows that criminal assaults are occurring or are about to occur which indicate an imminent probability of harm to the invitee. In this instance, two prior isolated acts of violence would not lead a reasonable person in charge of a dinner theatre parking lot to conclude that there was an imminent danger of criminal assault.
The Third Restatement, § 39 deals with the concept of creation of a danger. In that section, it notes that where an actor’s prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, then the actor has a duty to exercise reasonable care to prevent or minimize the harm. Also if a business knows that a potentially dangerous person is on the premises, that may create a duty. Thompson v. Skate America, Inc., 261 Va. 121 (2001)
2. Generalized Duty
The so-called “duty to the world” was some say first recognized in RGR v. Settle, 288 Va. 260 (2014). There the court downplayed the issue of foreseeability. It stated that foreseeability was relevant only to whether the conduct was negligent or whether it was a proximate cause of the injury, not to whether the duty exists. RGR at 281
In general, a defendant whose conduct has not created a risk of physical or emotional harm has no duty of care. That is, no duty exists to prevent harm caused by some other thing or person unless there is a special relationship or the defendant has voluntarily assumed a duty. A.H. v. Church of God, 297 Va. 604 (2019)
The court has rejected imposing a duty on an employer to use ordinary care to prevent his employee from intentionally harming others or from conducting himself as to create an unreasonable risk of bodily harm to others. A.H. at 622
Likewise the court has rejected the idea that a parent has a duty to exercise reasonable care to control his minor child unless the parent knows or has reason to know that he has the ability to control the child and the necessity and opportunity to exercise such control. Bell v. Hudgins, 232 Va. 491 (1987) In the case of a falling tree, the court has held that there is no duty to exercise reasonable care to prevent unreasonable risk of harm arising from the condition of trees on the land near a highway. Cline v. Dunlora, 284 Va. 102 (2012)
Protect Your Rights with Brien Roche Law
When duty, negligence, and liability are on the line, the details matter. If you have been injured in Virginia, D.C., or Maryland, Brien Roche Law can help.
At Brien Roche Law, we analyse every angle of your case and build a strategy designed to hold the responsible party accountable. If you believe someone else’s actions caused your injury, contact Brien Roche Law today to discuss your options and protect your rights.
