Va. SC agrees to toss suit against landlords over lead paint

Jessica M. Karmasek Jun. 15, 2012, 10:30am


RICHMOND, Va. (Legal Newsline) - The Virginia Supreme Court ruled last week that a lower court was correct in sustaining demurrers filed by two landlords in a lawsuit over the existence of lead paint in their two rental properties.

The Court, in its June 7 opinion, said plaintiff Rosa Steward's amended complaint failed to state a cause of action.

In 1996, Steward leased a single-family home in Suffolk from defendant Holland Family Properties LLC, the owner of the property.

Rosa's son, Dontral, was born in June 2000 and stayed with Rosa in the home until December 2001.

During this time, Dontral frequently visited another property leased to Robert L. and Bobbie A. Stevenson by Jean Cross, the owner.

According to court documents, lead paint was present at both properties. The plaintiff described it as "cracking, scaling, chipping... and/or otherwise deteriorating."

As a result of his exposure to high levels of the lead paint, Dontral suffered lead poisoning, which caused severe and permanent physical and mental impairments and other damages.

Dontral, through his mother, sued Holland and Cross, seeking damages for his injuries.

In particular, Steward claimed the landlords were liable for his injuries based on theories of negligence per se and common law negligence.

The landlords, in response, filed demurrers to both counts.

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.

The landlords asserted that neither the leases attached to Steward's amended complaint, the common law nor any statute impose a duty in tort on them upon which tort recovery could be based.

The Suffolk County Circuit Court granted the demurrers on both the negligence per se and common law negligence counts, and dismissed Steward's amended complaint.

Steward appealed to the state's high court.

The Court, in its 15-page ruling, said a tort duty is not imposed on the two landlords by the common law, the leases executed in the case or the Virginia Residential Landlord and Tenant Act, or VRLTA.

"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," Senior Justice Elizabeth B. Lacy wrote for the Court.

"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."

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," Lacy explained.

"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."

Such agreements, the Court said, do not alter the common law rule regarding a landlord's tort liability.

"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," Lacy wrote.

Also, VRLTA provides no basis for a negligence per se claim, the Court said.

"Steward has not pled a claim of common law negligence per se here. His negligence per se claim is based on allegations of contractually assumed duties and statutorily imposed duties, not common law duties," Lacy wrote.

The circuit court found -- and the Court agreed -- that there are no assertions or facts alleged in Steward's amended complaint that any repairs were ever undertaken by the landlords.

"The allegation that the landlords were negligent in their repairs relative to lead paint is a legal conclusion. Legal conclusions are not taken as true in considering a demurrer," Lacy noted.

"In the absence of any factual allegation that repairs were made, the amended complaint fails to state a cause of action for negligent repair."

From Legal Newsline: Reach Jessica Karmasek by email at

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