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 ask whether or not there is a common law duty. If so, that alone may give rise to the cause of action;
- Next, you must ask whether or not the relationship of the parties is such as to give rise to a duty and was there a breach of that duty that caused injury;
- Next, is there a special relationship between the parties that gives rise to a duty;
- Next, is the danger of sufficient foreseeability that it gives rise to a duty;
- Next, you must ask if there is a statutory duty and does that statute then give rise to a cause of action.
Duty in Personal Injury Cases-Common Law Duty
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. 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.
Relationships
Tenant
In Steward v. Holland Family Properties, LLC, 284 Va. 282, 286 (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. The existence of such common law duty was a prerequisite to there being a basis for a claim.
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.
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.
Contractors
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.
Nonfeasance
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.”
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 870. In that case, a homeowner contracted with a pesticide contractor “to apply chemicals to control…pests” in the home. Id. at 867. Instead of using chemicals approved for use in residential buildings, however 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.
Intentional Torts
Sometimes intentional tort claims are asserted based upon what is called “nonfeasance”. That is, a failure to pay may suddenly become a tort claim consisting of conversion or conspiracy. The question must be asked as to what is the source of duty. If the source of the duty is purely contractual and the claim is based upon nonfeasance i.e., a failure to pay, then that’s still just a contract claim. It’s probably not a tort claim. Mistina v. Alexandria Capital LLC, 2024 WL 3657009
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 the 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. Penney 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, 27 S.E. 70, 71 (1897) For a free consultation about your case, contact us today.
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, 159 S.E. 196,202. As a result the manager may have a duty to keep the premises safe but that duty is owed to the owner. The property manager may still be liable to third parties if he is an occupant.
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.
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 ordinarily careful, prudent person in the same position and circumstance.
Generalized 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 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.
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. 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.
In Quisenberry the court found that there was a duty imposed upon the employer to make sure that employees did not leave the premises with dangerous substances (asbestos) on their clothing. Persons who are injured from that exposure may have a claim against that employer.
Duty in Personal Injury Cases-Special Relationship
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.
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. In spite of that, 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 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.
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.
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)
Duty in Personal Injury Cases-Level of Knowledge or Foreseeability
In Wright v. Webb, 234 Va. 527 (1987), the court 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.
Duty-Criminal Context
Business owners generally do not have a duty to protect business invitees against criminal behavior unless the business is such that attracted a climate for criminal behavior or there was an imminent probability of harm that existed in the business (forseeability). Wright v. Webb, 234 Va. 527 (1987)
Likewise 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)
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.
Consult With a Personal Injury Lawyer in the DMV Area for Your Premises Liability Case
Call or contact us for a free consult. Also for more info on duty, see the Wikipedia pages. Also see the post on this site dealing with premises liability issues.
