Duty in Personal Injury Cases
Brien Roche
The concept of duty in tort claims is an important one. To have a tort claim, there must be a duty, breach of duty, the breach must have caused some damage and then finally you have to prove what the damage is.
However proving the existence of a duty can be daunting.
There are cases indicating that duties in tort must arise either from the common law or arise by statute which then expressly gives rise to a cause of action. In Steward v. Holland Family Properties, LLC, 284 Va. 282, 286 (2012), 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.
Likewise 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. In Augusta Mutual Insurance v. Mason, 274 Va. 199, 205 (2007), the court dealt with a different issue but reiterated that there must be a common law duty in order to give rise to a tort claim. The source of that duty cannot be a contract.
Personal Injury Duty-Different Circumstances
There are a number of different circumstances where the issue of duty may arise. Caretakers for children may have a duty to protect the children. A.H. v. Church of God, 297 Va. 604 (2019). Also employers may have a duty to protect their employees. A.H. v. Rockingham Publishing Co., 255 Va. 216, 495 S.E.2d 482 (1998)
However 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. Wright v. Webb, 234 Va. 527, 362 S.E.2d 919 (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, 540 S.E.2d 123 (2001)
What follows is an analysis first of what gives rise to the duty, the duty in the context of criminal or potentially criminal behavior and then an analysis of the cases simply dealing with duty in the premises liability context.
Personal Injury Duty-Source of Duty
The case that I like to cite in terms of the source of duty is Perlin v. Chappell, 198 Va. 861 (1957). That case stated that the duty of ordinary care may arise from statute, ordinance or relationship with the parties. We know that those may be the sources of the duty. However more frequently the question becomes, even though a duty exists, does a cause of action exist? The mere existence of a duty does not give rise to a cause of action.
Frequently the question then becomes, even if there is a duty, is there a cause of action? In the Steward case and the Williamson cases cited above, the court was looking for a common law duty. My take on all of these cases is as follows:
- 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 if there is a statutory duty and does that statute then give rise to a cause of action.
- Next you must ask simply 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. If so then that may be the basis for a cause of action. That relationship is typically going to be referred to as a special relationship.
Duty-Criminal Context
There are a number of cases dealing with either criminal or potentially criminal acts in the context of a tort case.
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.
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.
Personal Injury Duty-Other Cases
With A.H. v. Rockingham Publishing Co., 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 Thompson v. Skate America, Inc., 261 Va. 121 (2001), the court found that there was a duty since in that case the assailant had caused on several prior occasions disturbances, arguments and fights and was a known troublemaker. The demurrer in that case should not have been sustained.
In A.H. v. Church of God, 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.
Duty-Premises Liability
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.
Under the Virginia Residential Landlord Tenant Act at Virginia Code § 55-248.13, a landlord has a duty to maintain fit premises. This would include such things as elevators and escalators. 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.
If an owner or occupant undertakes repairs then they have a duty to do so reasonably. Tugman v. Riverside Mills, 144 Va. 473 (1926)
Duty Cannot Be Delegated
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.
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)
Nonfeasance v. Misfeasance or Malfeasance
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 may 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, 706 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 W.L. 980638 (E.D.Va., 2022)
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 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.
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.
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)
General 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.
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.
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.
Occupant Not Guarantor
The logic of this rule is that 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.
Reasonable Care
Also you may ask what is reasonable care. Reasonable care is whatever a jury says it is. However a textbook definition of reasonable care is that degree of care that a prudent person would exercise in that circumstance.
To sum up, a property owner is probably a necessary party in a premises liability case. A property manager may be a permitted party with the limits noted above. The occupant, whether it be owner, tenant or other, is probably a necessary party.
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 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.
Codes-What is Reasonable?
National code standards may be relevant for two reasons. First what the occupant knew or should have known about the condition of the property. Second, 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.
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.