Premises liability claims generally require proof that the owner/manager knew of a defect in the premises, failed to cure it and that caused the injury. The foundation of any of these types of claims is that the defendant either created or allowed to exist a dangerous condition.
Personal Injury-Premises Liability Elements
Let’s look at such a case from the point of view of the four elements of a tort claim.
The first element of a tort claim is to define the duty owed by the defendant to the plaintiff. The duty may arise out of the relationship of the parties. It may arise from law. In addition it may arise from custom and practice. Also it may be assumed or imposed as stated below. For more info on duty see the page on this site.
Status of Plaintiff
What that duty may be is a function of the status of the plaintiff, the status of the defendant and the nature of the conduct. The different statuses that may apply are that of invitee, licensee, trespasser or tenant. Each of those terms have their own meaning. You need to know what each of those means in order to determine what duty is owed to that person.
Invitee
An invitee is one who visits premises lawfully at the express or implied invitation of the occupant. An invitee is typically a business invitee. They visit the premises for something other than a social purpose or for their own convenience. An example would be a patron in a store.
The duty that an occupant owes to an invitee is to use ordinary care to have the premises in a reasonably safe condition. In addition, the occupant owes a duty to use ordinary care to warn an invitee of any unsafe condition about which the occupant knows or should know unless the condition is open and obvious.
Snow and Ice Cases
Snow and ice cases typically involve an invitee. This issue is, has the owner acted in a reasonable fashion in terms of clearing the snow and ice. If the conduct is not reasonable then that may be a basis for a negligence claim. An owner may wait a reasonable time after a storm is over before removing snow and ice.
In most of these cases, it makes sense is to hire a meteorologist. The meteorologist can testify as to when the precipitation ended. If the time gap between the end of that precipitation and the time of the fall is significant and the property owner has done nothing to make the property safe, then you probably have a case. If the time gap is minimal, you probably don’t have much of a case.
In many instances the ice may be what is referred to as “black ice”. Black ice implies that the ice itself is not visible. It is on a black surface. However in some cases the ice may be on a concrete surface which may be tan or white in color. Either way the ice may not be visible. If the property owner knew or should have known of the presence of the ice and a reasonable time has passed, then the property owner may be at fault. For a Free Phone Consultation about your case, contact us today.
Licensee
A licensee is one who enters the premises of another for his own convenience, benefit or pleasure with the knowledge and express or implied consent of the occupant. For instance, a social guest would be a licensee. An occupant owes a duty to a social guest to use ordinary care in his activities or conduct to avoid injury to a guest.
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. Under the Virginia Residential Landlord Tenant Act at Virginia Code § 55-248.13, a landlord has a duty to maintain fit premises. This applies in particular to the common areas.
Status of Defendant
Owner
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. 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.
Occupant
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.
If an owner or occupant undertakes repairs then they have a duty to do so reasonably. Tugman v. Riverside Mills, 144 Va. 473 (1926)
Occupant Not Guarantor
An occupant is not a guarantor of the safety of all persons on the premises. However the occupant is required to exercise reasonable care. In other words reasonable care as to those defects known or that should be known of. In a slip and fall if you can prove that the liquid had been on the floor for twenty minutes, that may be enough to make out a claim. Within that period of time it could be that the occupant should have known that the liquid was on the floor. Therefore he should have cleaned it up or placed signs to warn customers. Another theory of liability is that the occupant was negligent in that he did not have an adequate system in place for discovering the defects. In other words the negligence is systemic.
Contractors
If work on the premises is done by an independent contractor and that causes the injury you may need to sue that party. 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. For instance if a cleaning company contracts to clean the bathrooms, they often put out a “wet floor” sign when the contract obliges them to do so. If they fail to do so, there may be a basis for a tort claim. The cleaning company however, having assumed its contractual duty to mop the floor and provide janitorial services, had an independent obligation to exercise reasonable care to prevent foreseeable injuries to foreseeable plaintiffs. That constitutes misfeasance. Malfeasance is a step beyond that. Kaltman v. All American Pest Controls, Inc., 281 Va. 483, 703 S.E.2d 864 (2011); Tingler v. Graystone Homes, Inc., 298 Va. 63, 834 S.E.2d 244 (2019); Holderfield v. Thyssenkrupp Elevator Corp., 2022 WL 980638 (E.D. Va., 2022); Manning v. Drury Hotels, 2024 U.S. Dist. Lexis 72182
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.
Kaltman
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.
Tingler
In the 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)
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
Property Managers
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.
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 Phone 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.
Milburn
An independent tort duty exists where a party’s negligent performance under a contract causes physical harm to a third party. Orange v. Berkshire Property Advisors, LLC, 83 Va. Cir. 234, 240 (Fairfax 2011); Artrip v. E. E. Berry Equipment Co., 240 Va. 354 (1990) (Parties there stipulated that the independent contractor owed a duty of care to the public for snow removal. The court agreed with that.); Milburn v. J.C. Penney Properties, 2007 Va. Cir. LEXIS 42 (Trial court adopted the reasoning from the Second Restatement of Torts § 387 (1965) which says that an independent contractor to whom a possessor of land turns over the entire charge of the land is subject to the same liability as though he was the possessor of the land.); Beaudoin v. Sites, 886 F.Supp. 1300 (E.D. Va. 1995) (The trial court focused on whether employees of the owner owed a duty as to misfeasance).
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.
Duty of Innkeeper
Where the relationship with the plaintiff is one of an innkeeper, there may be a heightened duty of care. The innkeeper owes a duty to take every reasonable precaution to protect the person and property of their guests and boarders. Crosswhite v. Shelby Operating Corp., 182 Va. 713, 716 (1944); Haynes-Garrett v. Dunn, 296 Va. 191, 200 (2018)
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.
In the Didato v. Strehler, 262 Va. 617, 629, 554 S.E.2d 42, 48 (2001) case, 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. This 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)
Nature of Conduct
Criminal Acts
There is no duty to protect against criminal acts of another. The reason for the rule is that such conduct cannot reasonably be foreseen. A.H. v. Church of God and Christ, Inc., Record No. 180520, 831 S.E.2d 460 (2019).
There are two exceptions to that rule. The first is where there is an express statement that one party has assumed a legal duty to protect another. The second is where the duty is not assumed but rather is imposed. That duty may be imposed where there is a special relationship. That relationship must exist between the defendant and the person who is to be controlled. Likewise this duty to protect may arise between the plaintiff and the defendant where the plaintiff has a right to protection. The duty however only arises when the defendant could have foreseen the need to take action to protect the plaintiff from harm. That is, the danger is either known or reasonably foreseeable.
General Concepts – 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.
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)
Notice
If you slip and fall on a liquid that is on the floor in the local supermarket, do you necessarily have a basis for a claim? You may not. You must present some evidence of how long that liquid had been on the floor. If it turns out that the liquid had only been there a short time and is there because of the actions of some other customer, you may have a problem. That is, the owner did not have a reasonable chance to see the liquid and clean it up. There may not be any negligence on the part of the owner.
Sometimes the defendant will trip themselves up on this issue of notice. They’ll claim that there was no constructive notice. At the same time they’ll raise the defense that the defect was open and obvious. That can be used against them.
Premises Case Similar to Products Case
A premises case is similar to a product liability case. In a product case the maker should design out the defect, guard against the defect or warn about it. The same analysis may apply in a premises case. The catch in a premises case is the plaintiff must prove notice of the defect. In other words did the defect exist long enough for the occupant to be aware of it and correct it, guard it or warn about it. For a Free Phone Consultation about your case, contact us today.
Codes v. National Standards
If your case involves a building code violation, that is a definite plus. It must be kept in mind however that a property owner owes two (2) types of duties. There is a duty applicable under the building code. That duty or standard is simply a minimum requirement. In addition a property owner has a duty to comply with the common law duty of reasonable care under the circumstances. Mere compliance with the code requirement does not mean there is compliance with the common law duty.
National code standards may be relevant for two reasons. First, they may show what the occupant knew or should have known about the condition of the property. Second, they may show what is reasonable care as to the maintenance of the property. Friend, Personal Injury Law in Virginia, § 2.2 (3rd Edition, 2013); Virginia Electric Power Co. v. Daniel, 202 Va. 731 (1961) (referring to the requirements of the national electrical safety code); Morgen Indus. v. Vaughan, 252 Va. 60, 64 (1996) (expert testified about AMSI standards dealing with guards to prevent injuries); Norfolk and Portsmouth Belt Line Railroad Co. v. Wilson, 276 Va. 739, 745, footnote 7 (2008) (expert testimony admissible where the national and the Virginia standards coincide); Christian v. Surgical Specialists of Richmond, 268 Va. 60, 65 (2004) (expert testimony allowed where national and Virginia standards coincide). The point to be emphasized is that there may be two (2) duties.
The admissibility of these standards may also be governed by Virginia Code § 8.01-401.1 dealing with learned treatises.
Personal Injury-Premises Liability Breach
If the occupant failed to take steps to correct the problem, guard against it or to warn of the danger then that may be evidence of a breach of the duty to exercise reasonable care.
Causation
That breach of duty must be shown to be a cause of injury to the plaintiff.
Damage
The final element of a premises liability claim is simply that of injury or damage. The injury or damage may be the personal injury to the plaintiff.
Things To Do When Injured on Someone’s Property
As is true with any type of injury there must be prompt and thorough investigation. Some basic steps to be taken are:
- Photos of the unsafe condition and surrounding area as soon as possible
- Prompt examination by engineer or other specialists.
- Interview of pertinent witnesses
Personal Injury-Premises Liability Defenses
The defenses asserted are either contributory negligence or assumption of risk. Assumed risk means that the plaintiff recognized that there was a risk and chose to assume it. The fact that somebody is walking on a pathway that is covered with snow and ice is not always assumption of risk. It may be if the plaintiff had some other path to follow. If there was no other path and the plaintiff was out during bad weather out of need then any defense of assumption of risk may be defeated.
If a condition is open and obvious to the plaintiff then the defense of either assumed risk or contributory negligence may apply. The plaintiff then has the burden to show there are things outside herself that prevented her from seeing the condition or would otherwise excuse her failure. Fultz v. Delhaze America, Inc., 278 Va. 84 (2009)
Attractions
In the case of falls in a store the best counter to contributory negligence is the store itself. The store has spent a lot of money getting patrons to look at their displays. They don’t want patrons looking at the floor. The rule in a case like that may be the store wants patrons to look everywhere but the floor. In return for that the floor must be kept clear.
Some catchy phrases that might be used at trial are “When water on the floor you must do more”. Also “When you know things amiss you must stop and fix.”
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.
For a Free Phone Consultation about your case, contact us today.
For more information on premises liability see the pages on Wikipedia.
