Yuzefovsky v. St. John's Wood Apartments

• Decision Date: 12 January 2001
• Docket Number: Record No. 993015.
• Citation: 540 S.E.2d 134,261 Va. 97
• Court: Virginia Supreme Court
• Parties: Alex YUZEFOVSKY, v. ST. JOHN'S WOOD APARTMENTS, et al.

540 S.E.2d 134

261 Va. 97

Alex YUZEFOVSKY, v. ST. JOHN'S WOOD APARTMENTS, et al.

Record No. 993015.

Supreme Court of Virginia.

January 12, 2001.

Jeffrey A. Breit (John L. Watts; Breit, Drescher & Breit, on briefs), Norfolk, for appellant.

Frederick T. Schubert, II (Charles F. Midkiff, Muncie & Ross, on brief), Richmond, for apellees.

Present: All the Justices.

KOONTZ, Justice.

In this appeal, we consider whether the trial court properly sustained a demurrer to a second amended motion for judgment filed by a tenant against his landlord alleging fraud, negligent failure to warn, and negligent failure to protect concerning the danger of a criminal assault on the tenant by a third party which occurred on the landlord's property.

Because the procedural posture of this case controls our consideration of the factual allegations of the pleading at issue, we initially relate the proceedings in the trial court that preceded the trial court's sustaining the demurrer to that pleading. On April 26, 1998, Alex Yuzefovsky, a tenant of St. John's Wood Apartments, filed a motion for judgment against St. John's Wood Apartments and the alleged owner of that development, SJW, Limited Partnership. Under various theories, Yuzefovsky alleged that these defendants were liable for injuries he sustained on the property of St. John's Wood Apartments as a result of a criminal assault by a third party. Prior to serving the original motion for judgment on these defendants, Yuzefovsky filed an amended motion for judgment adding as additional defendants General Services Corporation and GSC Security. This pleading alleged that the former had an ownership interest in St. John's Wood Apartments and the latter provided security services to the other defendants on the premises of these apartments. This pleading included additional theories of liability and increased ad damnum claims.

After the first amended motion for judgment was served on the defendants, they filed a joint plea in bar of the statute of limitations with respect to a number of the claims asserted by Yuzefovsky and a demurrer to all of them. Thereafter, the trial court sustained the plea in bar to one claim, sustained the demurrer to the remaining claims except for a claim of breach of contract, and granted Yuzefovsky leave to file a second amended motion for judgment. On July 7, 1999, Yuzefovsky filed his second amended motion for judgment reasserting each of the claims to which the trial court had previously sustained the defendants' demurrer without material change in the factual allegations. This pleading, however, did not reassert the claim to which the plea in bar had been sustained or the contract claim to which the demurrer had been overruled. The defendants filed another demurrer to all the claims in the second amended motion for judgment, the trial court sustained this demurrer, and dismissed the case with prejudice.

Our consideration of the factual allegations in this case is governed by the wellsettled principle that when a circuit court sustains a demurrer to an amended motion for judgment which does not incorporate or refer to any of the allegations that were set forth in a prior motion for judgment, we will consider only the allegations contained in the amended pleading to which the demurrer was sustained. Bell Atlantic-Virginia, Inc. v. Arlington County, 254 Va. 60, 63 n. 2, 486 S.E.2d 297, 299 n. 2 (1997); see also Breeding v. Hensley, 258 Va. 207, 212, 519 S.E.2d 369, 371 (1999). Our consideration of those allegations is further guided by well-settled principles of appellate review. A demurrer admits the truth of the facts contained in the pleading to which it is addressed, as well as any facts that may be reasonably and fairly implied and inferred from those allegations. Cox Cable Hampton Roads, Inc. v. City of Norfolk, 242 Va. 394, 397, 410 S.E.2d 652, 653 (1991). A demurrer does not, however, admit the correctness of the pleader's conclusions of law. Ward's Equip., Inc. v. New Holland North America, Inc., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997). Accordingly, we will consider the facts stated, and those reasonably and fairly implied and inferred, in the second amended motion for judgment in a light favorable to Yuzefovsky, but we will review the sufficiency of the legal conclusions ascribed to those facts de novo. In relating these facts we will hereafter refer in context to all the defendants collectively as "St. John's Wood" and the apartment complex as "the development."

In December 1994, Yuzefovsky moved to Richmond to begin new employment. His employer initially provided him with temporary housing while he looked for permanent housing. In conducting his housing search, Yuzefovsky was particularly concerned with the issue of his personal security, desiring to find housing in a safe and crime-free environment.

In discussing his interest in leasing an apartment in the development with employees of St. John's Wood, Yuzefovsky indicated that he was unfamiliar with the area where the development was located and expressed his concern for security. He specifically asked the employees if the development "was safe and whether there had been crime on and/or about the property." The employees told Yuzefovsky "that there had been no crimes at [the property of] St. John's Wood, and that it was safe." They further advised Yuzefovsky that "police officers lived in the development and that police vehicles patrolled the property."

Based upon these assurances, Yuzefovsky became a tenant of St. John's Wood, leasing an apartment in the development and taking possession of it in February 1995. On November 21, 1996, Yuzefovsky was confronted by an assailant armed with a sawed-off shotgun in a walkway on the property of St. John's Wood and immediately adjacent to his apartment. The assailant shot Yuzefovsky in the right shoulder, took his car keys, and fled in Yuzefovsky's vehicle. The assailant was subsequently arrested and convicted of crimes related to this incident.

Yuzefovsky alleges that the employees of St. John's Wood knew that their representations that there had been no crimes committed on or in the vicinity of the development, that the development was safe, that police officers lived there, and that police vehicles patrolled the development were false. He further alleges that in 1994, 656 crimes, including 113 crimes against persons, were reported to the Richmond City Police as having occurred in the vicinity of the development and that criminal activity in that vicinity remained at that level for the next two calendar years. Yuzefovsky further alleges that during the three-year period from November 21, 1993 to November 21, 1996, there were 257 crimes reported to Richmond City Police that occurred on the development.¹ These crimes included "5 robberies...., 8 aggravated assaults, 13 simple assaults, 37 residential burglaries, 34 larcenies, 97 larcenies from the auto[mobile], 2 abductions, 30 property crimes and 26 motor vehicles thefts."

The legal theories of liability asserted by Yuzefovsky in his second amended motion for judgment and for each of which he sought $15,000,000 for compensatory damages, in summary, are:

(1) Fraud. Yuzefovsky alleges that the misrepresentations by employees of St. John's Wood that the development was safe and crime-free and that police lived in and patrolled the development "were negligent, reckless and/or intentional," and that he relied on these misrepresentations in leasing an apartment at the development. Yuzefovsky alleges that the injuries he sustained in the subsequent criminal assault were a direct and proximate result of these misrepresentations.

(2) Duty to Warn. Yuzefovsky alleges that under the circumstances of the previous criminal conduct that was known by St. John's Wood, they owed a duty to warn him that "violent crime had taken place at [the development]," and that the negligent failure to exercise that duty was a proximate cause of the injuries he sustained in the subsequent criminal assault.

(3) Duty to Protect. Yuzefovsky alleges that St. John's Wood, "and in particular GSC Security," owed a duty to protect him against unsafe conditions or criminal activities of which they knew or should have known. He alleges that St. John's Wood had undertaken the duty to protect their tenants through the use of a security service, and that having done so, St. John's Wood and this security service² were negligent in exercising that duty by deploying inadequate numbers of security guards, using li]mproper patrol techniques," providing "[i]nadequate security equipment," and in failing to properly train, select, and compensate their security guards. Yuzefovsky alleges that the breach of this duty was a proximate cause of the injuries he sustained in the subsequent criminal assault.

(4) Special Relationship. Yuzefovsky alleges that "[a]s a tenant of [St. John's Wood, they] had a special relationship with [Yuzefovsky]. That [this] special relationship created a duty to exercise reasonable care to protect [Yuzefovsky] against criminal acts of third persons and to warn him of the danger of such attacks, since the danger of such attacks [was] known and/or reasonably foreseeable to [St. John's Wood]." Yuzefovsky alleges that the breach of the duties created by this special relationship was a proximate cause of the injuries he sustained in the subsequent criminal assault.

In a memorandum in support of the defendants' demurrer to the second amended motion for judgment, they contended that the allegations of fraud were based upon vague and indefinite statements of opinion and not fact, and that Yuzefovsky was not justified in relying on these statements. They further contended that Yuzefovsky had a duty to undertake his own investigation of the area rather than relying on the statements made by employees of St. John's Wood.

As to the remaining claims of the second amended motion for judgment, the defendants...