Steward v. Holland Family Props., LLC

• Decision Date: 07 June 2012
• Docket Number: Record No. 110113.
• Citation: 726 S.E.2d 251
• Parties: Dontral STEWARD, An Infant, Who Sues Through Rosa STEWARD, His Mother and Next Friend v. HOLLAND FAMILY PROPERTIES, LLC, et al.
• Court: Virginia Supreme Court

726 S.E.2d 251

Dontral STEWARD, An Infant, Who Sues Through Rosa STEWARD, His Mother and Next Friend

v.HOLLAND FAMILY PROPERTIES, LLC, et al.

Record No. 110113.

Supreme Court of Virginia.

June 7, 2012.

Richard J. Serpe (Cindra M. Dowd, on brief), Norfolk, for appellant.

Thomas S. Berkley (Edward J. Powers; Vandeventer Black, on brief), Norfolk, for appellee Holland Family Properties.

Kevin P. Greene (L. Lucy Brandon; Wilcox & Savage, on brief), Norfolk, for appellee Jean Cross.

Amicus Curiae: Virginia Trial Lawyers Association (Mark S. Lindensmith; Mark & Harrison, Staunton, on brief), in support of appellant.

Present: KINSER, C.J., LEMONS, MILLETTE, MIMS, McCLANAHAN and POWELL, JJ., and LACY, S.J.

Opinion by Senior Justice ELIZABETH B. LACY.

In this appeal we consider whether Holland Family Properties, LLC (“Holland”) and Jean Cross (“Cross”), landlords subject to the Virginia Residential Landlord and Tenant Act, Code § 55–248.2 et seq. (“the VRLTA”), have a duty in tort to the tenants of leased properties to comply with building and housing codes concerning public health and safety. For the reasons stated below, we conclude that a tort duty is not imposed on these landlords by the common law, the leases executed in this case, or the VRLTA.

BACKGROUND

Because the circuit court decided this case on demurrers, we recite properly pled facts as alleged in the amended complaint. Yuzefovsky v. St. John's Wood Apts., 261 Va. 97, 102, 540 S.E.2d 134, 136 (2001).

In 1996, Rosa Steward leased a single-family home in Suffolk, Virginia, from Holland, the owner of the property.¹ Rosa's son, Dontral, was born June 7, 2000, and resided with Rosa at the home until December 2001. During this time, Dontral was a frequent visitor to residential property leased to Robert L. and Bobbie A. Stevenson by Cross, the owner. Lead paint was present on both the property owned by Holland and by Cross. The lead paint was “cracking, scaling, chipping ... and/or otherwise deteriorating.” As a result of his exposure to high levels of lead paint, Dontral suffered lead poisoning which caused severe and permanent physical and mental impairments and other damages.

Dontral Steward, through his mother and next friend, (“Steward”) filed an amended complaint against Holland and Cross (collectively “the Landlords”) seeking damages for his injuries alleged to have been caused by his exposure to lead paint. Steward claimed that the Landlords were liable for his injuries based on theories of negligence per se and common law negligence. The Landlords filed demurrers to both counts asserting that neither the leases attached to the amended complaint, nor the common law, nor any statute imposed a duty in tort on them upon which tort recovery could be based.

Following argument of counsel, the circuit court granted the demurrers on both the negligence per se and common law negligence counts and dismissed the amended complaint. Steward filed this appeal challenging the circuit court's rulings on both counts.

DISCUSSION

The principles of appellate review applicable in this case are well established. A demurrer accepts as true all facts properly pled, as well as reasonable inferences from those facts. Abi–Najm v. Concord Condo., LLC, 280 Va. 350, 356–57, 699 S.E.2d 483, 486–87 (2010). The purpose of a demurrer is to determine whether the pleading and any proper attachments state a cause of action upon which relief can be given. Id. The decision whether to grant the demurrer is a question of law, which we review de novo. Id.

I. Negligence Per Se

All negligence causes of action are based on allegations that a person having a duty of care to another person violated that duty of care through actions that were the proximate cause of injury to the other person. Balderson v. Robertson, 203 Va. 484, 487–88, 125 S.E.2d 180, 183 (1962). The standard of care required to comply with the duty of care may be established by the common law or by statute. However, a statute setting the standard of care does not create the duty of care. Williamson v. The Old Brogue, Inc., 232 Va. 350, 355, 350 S.E.2d 621, 624 (1986); Butler v. Frieden, 208 Va. 352, 353, 158 S.E.2d 121, 122 (1967); Smith v. Virginia Transit Co., 206 Va. 951, 957, 147 S.E.2d 110, 114–15 (1966).

When the standard of care is set by statute, an act which violates the statute is a per se violation of the standard of care. Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78–79, 597 S.E.2d 43, 46 (2004). A cause of action based on such a statutory violation is designated a negligence per se cause of action and requires a showing that the tortfeasor had a duty of care to the plaintiff, the standard of care for that duty was set by statute, the tortfeasor engaged in acts that violated the standard of care set out in the statute, the statute was enacted for public health and safety reasons, the plaintiff was a member of the class protected by the statute, the injury was of the sort intended to be covered by the statute, and the violation of the statute was a proximate cause of the injury. McGuire v. Hodges, 273 Va. 199, 206, 639 S.E.2d 284, 288 (2007).

The issue in this case involves the threshold element of a negligence per se claim, that is, whether the Landlords have a duty of care that would provide grounds for a claim upon which relief could be granted to Dontral. ²

Under the common law, in the absence of fraud or concealment, a landlord has no duty of care to maintain or repair leased premises when the right of possession and enjoyment of the premises has passed to the lessee. That duty resides with the lessee under these circumstances and no action in tort can be sustained against the landlord for personal injuries resulting from the failure to maintain or repair the leased property. Caudill v. Gibson Fuel Co., 185 Va. 233, 239–41, 38 S.E.2d 465, 469 (1946). Steward asserts that this common law duty to maintain and repair the leased premises does not apply to the tenant in this case and that it has shifted to the Landlords for two reasons: (1) the Landlords agreed in the leases to comply with “all building and housing codes materially affecting health and safety” and (2) Code § 55–248.13, a part of the VRLTA, imposed a duty on the Landlords to comply with “building and housing codes materially affecting health and safety.” The relevant building and housing code provisions that set the standard of care were the provisions of the National Property Maintenance Code of 1996 (“BOCA”), specifically the provision regarding lead paint.³ Because the Landlords failed to comply with the BOCA requirements, Steward asserts they violated both the Virginia Uniform Statewide Building Code, Code § 36–97 et seq. (“VUSBC”), and section 14–31 of the Suffolk City Code, and therefore were negligent per se. We begin by addressing Steward's claim that the leases imposed on the Landlords a tort duty of care to comply with the building and housing codes.

A. The Leases

Steward asserts that under the leases the tenants did not acquire the right of possession and enjoyment of the premises, a precondition for the imposition of the common law duty of maintenance and repair on the lessee. His position is based on the provisions in the leases in which the Landlords retained the right to enter the leased premises to inspect and make necessary repairs. This right, however, is limited under the terms of the leases to entry only after the Landlords have given the tenants reasonable notice of the need to enter the leased property and entry for that purpose must be done at reasonable times. This limited right of entry to repair does not displace a tenant's full right of possession and enjoyment of the premises because the tenant retains the ability to dictate when to admit the landlord to the premises. These provisions are no different in kind than an agreement by the landlord to repair the premises. Such agreements do not alter the common law rule regarding a landlord's tort liability. Caudill, 185 Va. at 240, 38 S.E.2d at 469. Furthermore, the lease with Holland specifically states that “[l]andlord covenants for Tenant's quiet enjoyment of the Property during the Term of this Lease and of any renewals or extensions of such Term.” Thus, the leases do not support Steward's assertion that the tenants did not have a right of possession and enjoyment of the leased premises.

Steward also asserts that the language in Holland's lease in which the landlord “covenants that the Property shall comply with the requirements of building and housing codes materially affecting health and safety and applicable to the Property” shifted the duty to maintain and repair the property to Holland. A covenant to repair or otherwise maintain the premises in the possession of the lessee is a contractual term which gives rise only to an action for breach of contract, not a duty in tort. Isbell v. Commercial Inv. Assocs., Inc., 273 Va. 605, 614–15, 644 S.E.2d 72, 76–77 (2007); Luedtke v. Phillips, 190 Va. 207, 211, 56 S.E.2d 80, 82–83 (1949); Caudill, 185 Va. at 239–41, 38 S.E.2d at 469.

For these reasons, we reject Steward's claim that the terms of the leases abrogated the common law tort duty of repair and maintenance and placed the duty of repair and maintenance with the Landlords.

B. The VRLTA

Steward's second basis for asserting that the Landlords had a tort duty to maintain the properties in compliance with BOCA is that such duty was imposed on the Landlords by the VRLTA, in Code § 55–248.13(A)(1). That subsection states that the landlord shall “[c]omply with the requirements of applicable building and housing codes materially affecting health and safety.” We have previously rejected this argument in Isbell, 273 Va. at 614–15, 644 S.E.2d at 76.

In Isbell, the tenant argued that the VRLTA “abrogated the common law and provided a statutory cause of action in tort allowing a tenant to recover damages for personal injuries sustained as a result of a landlord's violation...