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Duty-In General: Cases Summarized By Injury Lawyer

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Duty and the related topic of personal injury.For more information about the concept of duty see the pages on Wikipedia.

Duty-Statutes

See Virginia Code § 8.01-39. Completion or acceptance of work is not a bar to claim

See Virginia Code § 8.01-221 as to remedy based on violation of statute.

Duty-Cases

2014—RGR, LLC v. Settle, 764 S.E.2d 8.
Wrongful death action where lumber company had piled lumber near a railroad crossing blocking the truck driver’s view as he approached the crossing. Lumberyard should have foreseen the risk. Court imposed a duty owed to mankind in general.

2012—Cline v. Dunlora South, LLC, 284 Va. 102, 726 S.E.2d 14.
Motorist injured when tree located on private land fell on public roadway striking vehicle. No duty exists in this case. The complaint did not allege any affirmative act of the landowner, making the property different from its natural state or from its condition when the road was built. Demurrer properly sustained.

2011—Kaltman v. All American Pest Control, 281 Va. 483, 706 S.E.2d 864.
Husband and wife filed complaint against pest control company after employee treated couple’s home with pesticide that was not approved for residential use. Trial Court improperly granted demur- rers as to negligence and negligence per se counts as these claims did not necessarily arise out of the agreement between the home owners and the pest company but the duties instead arose out of the statute.

2009—Kellermann v. McDonough, 278 Va. 478, 684 S.E.2d 786.
Plaintiff allowed daughter to stay at home of a friend and daughter was subsequently killed while riding in a vehicle driven by another minor against the father’s expressed instructions. Father properly alleged common-law claim based upon duty in tort of failing to supervise and care for the daughter when the parents relinquished supervision and care to the defendants and the defendants agreed to supervise and care for the child. Parents also pled a cause of action on the basis that defendant assumed duty to the plaintiff’s child. These defendants, however, did not have a special relationship with the decedent child that created a duty to protect her from the criminal acts of third parties such as the driver of the vehicle in question.

2007 Augusta Mut. Ins. Co. v. Mason, 274 Va. 199, 645 S.E.2d 290.

Insurance company filed claim against insurance agent alleging fraud and breach of fiduciary duty. To avoid turning every breach of contract claim into a tort claim the rule has been established that to recover in tort the duty breached must be a common law duty and not one existing between the parties solely by virtue of the contract. In this case, the duties that the insurance agent allegedly violated by making certain false statements arose solely by virtue of the Agency Agreement and that cannot be a basis for a fraud claim.

2006 Baker v. Poolservice Co., 272 Va. 677, 636 S.E.2d 360.

In this drowning case, Poolservice Company had been hired to perform routine annual maintenance and cleaning. In the course of that maintenance, the company returned the spa to its normal working condition. There is no evidence in this case that the Poolservice Company had knowledge of any dangerous condition related to the pump or that it created any dangerous condition. As such, the demurrer to Poolservice Company was properly granted. The claim against the manufacturer was deemed to be time barred under the five-year statute of repose.

2000 Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 523 S.E.2d 826.

Plaintiff who seeks to establish negligence must plead existence of legal duty, violation of duty, and proximate cause which results in injury. Generally, person does not have duty to protect another from conduct of third person. This general rule does not apply when special relationship exist between defendant and plaintiff which gives rise to right of protection to plaintiff or between defendant and third person which imposes duty upon the defendant to control the third person. In this sexual assault case within a psychiatric ward, plaintiff’s pleadings were sufficient to withstand demurrer.

1999 Gray v. INOVA Health Care Servs., 257 Va. 597, 514 S.E.2d 355.

Parent who witnesses effects of negligent tactile tort committed upon child in presence of parent does not have cause of action in tort for negligent infliction of emotional distress. In this case, child was given ten times (10X) proper dosage of drugs which caused her to convulse, stop breathing, and turn blue. Mother observed all of this and experienced extreme fright, shock, temporarily blacked out, fell to floor, became physically sick, and vomited. In this case, defendants owed mother no duty as she was not patient upon whom medical tests were being performed. In absence of duty, there can be no negligence.

1999 Holles v. Sunrise Terrace, Inc., 257 Va. 131, 509 S.E.2d 494.

To establish cause of action for negligence, duty alleged must be common-law duty not duty arising between parties solely by virtue of contract. In this claim brought by rape victim against adult care residence, plaintiff must identify common-law duty owed to her which arose separate and apart from any duty imposed by facilities contract with Fairfax County. Before any duty of care can arise to control conduct of third party, there must be special relationship between defendant, plaintiff, or third person. Such special relationships exist in cases involving common carrier and its passenger, business proprietor and its invitee, and inn-keeper and its guests. Generally, there is no such special relationship between landlord and tenant. In this case, Sunrise was not even landlord but was present on premises pursuant to its management contract with Fairfax County. As such, no special relationship exists.

1999 Southeast Apartments Mgmt., Inc. v. Jackman, 257 Va. 256, 513 S.E.2d 395.

Maintenance employee of apartment complex entered plaintiff’s apartment and unlawfully touched her. Plaintiff filed suit for negligent hiring and negligent retention, both of which are causes of action that are recognized in Virginia. Negligent hiring claim is based upon harm resulting from employer’s conduct if employer is negligent in hiring of improper person in work involving unreasonable risk of harm to others. Negligent retention claim is based on principle that employer owning leased premises is subject to liability for harm resulting from negligence in retaining dangerous employee who employer knew or should have known was dangerous and likely to harm tenants. Plaintiff failed to make out claim under either theory. Employer in this case received detailed application from employee, did background check, gave tests that were independently graded yet nothing in that indicated that employee was dangerous. There was no criminal background check done but that was not required. There were no facts within the application process that would have alerted employer to possibility of employee engaging in assault on tenant. There was suspicion, during course of employment, that employee had alcohol or drug problem and may have had an attraction for single women but this did not render this 31-year-old single male a dangerous employee and one likely to commit sexual assaults. Verdict in favor of plaintiff was set aside.

1998 Richmond Metro. Auth. v. McDevitt Street Bovis, Inc., 256 Va. 553, 507 S.E.2d 344.

In certain circumstances party can show both breach of contract and tortious breach of duty; however, tortious breach must be based on common law duty, not one existing between parties solely by virtue of contract. Tort action cannot be based on negligent breach of contract. In this construction claim dispute there was no evidence that suggested contractor did not intend to fulfill his contract duties at time he entered into contract. To allow this to proceed as fraud claim would create possibility of turning every breach of contract into claim for fraud.

1998 Hegwood v. Virginia Natural Gas, 256 Va. 362, 505 S.E.2d 372.

Utility, such as natural gas company, is not responsible for dangerous defect in customer’s equipment or appliance beyond company’s delivery point. When company has actual knowledge of dangerous defect in customer’s equipment or appliance it has duty to exercise reasonable care to shut off all service to such equipment and has duty to warn occupants of known dangerous defect. In this case company representative determined that water heater had dangerous defect in that it was back drafting. Gas supply was cut off at control valve and also on fuel line leading to it. Mechanic also found boiler was defective although not dangerous. He shut off gas supply to boiler at control valve and at valve on fuel line leading to it. Water heater was red tagged containing warning. All of this was explained to adult resident. By unknown means gas supply to these two defective appliances was turned on. Residents thereafter were exposed to carbon monoxide and expired. Plaintiff alleges that gas company was negligent in failing to shut off gas supply at its meter. Trial court properly rejected this contention. Gas company complied with its duty.

1998 Jeld-wen, Inc. v. Gamble, 256 Va. 144, 501 S.E.2d 393.

Child fell through screen that had defective latch on it. Issue before court was what was duty of manufacturer of ordinary window screen, that is neither designed nor manufactured to act as body restraint, to safeguard against misuse of screen for that purpose. In this case Court found that there was no legal duty owed therefore no basis for claim. Manufacturer is not required to supply accident-proof product. Duty of manufacturer in this case was to produce window screen and frame fit for ordinary purpose for which it was to be used and safe for a reasonably foreseeable misuse that could cause injury. Ordinary use is to keep insects out. This would not include the screen serving as childproof restraint. Plaintiff asserted that evidence supports finding that defendant knew or should have known of existence of defect that permitted screen to have false latch appearance and that child could make contact with screen and cause screen to fall out of frame thereby resulting in injury to child. Inherent in this theory was assumption that screen would be used to provide balance and restraining support for child. That was not purpose of screen. Defect in this case was irrelevant since it was not reasonably foreseeable that screen would be used for balance and restraint.

1998 Austin v. Consolidation Coal Co., 256 Va. 78, 501 S.E.2d 161.

Plaintiff injured on job allegedly as a result of defective product. Employer thereafter allegedly destroyed product. Plaintiff now seeks to pursue tort claim for spoliation of evidence. Virginia does not recognize any such duty in tort therefore there is no basis for such claim.

1998 A.H. v. Rockingham Publishing Co., 255 Va. 216, 495 S.E.2d 482.

Thirteen-year-old newspaper boy was sexually assaulted by unidentified young man. There had been three previous assaults of a sexual nature upon other carriers for this newspaper, none of which occurred on route of A.H. Rockingham knew of these prior assaults. Before any duty can arise with regard to conduct of third persons there must be special relationship between defendant and either plaintiff or third person. Such special relationship exists in the context of employer-employee with regard to employer’s potential duty of protecting or warning employee. Supreme Court held that there was such special relationship in this instance. Rockingham, however, in this case had no duty to warn or protect A.H. against harm since danger of assault on plaintiff was not known and was not reasonably foreseeable. Three prior sexual assaults on Rockingham carriers in various locations in City of Harrisonburg in five years preceding this assault were insufficient to raise jury issue of whether sexual attack on plaintiff was reasonably foreseeable. Plaintiff further contended that Rockingham gave inadequate and deceptive warnings regarding risk of assault upon its young carriers. Rockingham’s actions did not give rise to duty to give more complete warning.

1997 Smith v. Settle, 254 Va. 348, 492 S.E.2d 427.

Auto accident involving ambulance. Plaintiff presented expert testimony as to standard of care as it applies to emergency vehicles proceeding through red light. Having created factual issues of the existence of these duties, plaintiffs are not permitted to take inconsistent position that the same issues are matters of law suitable for jury instructions. As such, instructions on these issues are refused.

1995 Nasser v. Parker, 249 Va. 172, 455 S.E.2d 502.

Demurrer properly sustained in case of wrongful death resulting from failure of psychiatrist and hospital to warn victim of release from hospital of former boyfriend who had threatened to kill her. No special relationship established and therefore no duty.

1994 VanDeusen v. Snead, 247 Va. 324, 441 S.E.2d 207.

Purchasers in this case allege that sellers had failed to reveal that differential settlement had occurred in house and that this was negligence. Actual knowledge of settlement problem raised no duty under Virginia law for sellers to disclose such defects. Absent duty there can be no cause of action. Purchaser in this case also asserted claim against listing broker. While there may be some type of general duty to public owed by every realtor, it is not type of duty that converts into liability against seller’s agent for improper conduct to one in adversary position, where there is no foreseeable reliance by purchaser on agent’s actions. As such, no cause of action exists against listing broker. Cause of action does exist against purchaser’s agent since there is nothing of record to indicate that this agent was in fact anything other than purchaser’s agent and such agent does have a duty to disclose.

1993 Buchanan v. Doe, 246 Va. 67, 431 S.E.2d 289.

Tort is any civil wrong or injury to which action will lie. It is violation of some duty owing to plaintiff imposed by general law or otherwise. Generally this duty must arise by operation of law and not by mere agreement of parties. Stated differently, tort is legal wrong committed upon person or property independent of contract.

1993 Panousos v. Allen, 245 Va. 60, 425 S.E.2d 496.

Medical malpractice case. Intervening cause instruction improperly given. Court differentiated between intervening and superseding cause in that there may be more than one cause for event. Not every intervening cause is superseding cause. In order to relieve defendant of liability for negligence, negligence intervening between defendant’s negligence and injury must so entirely supersede the operation of defendant’s negligence that it alone, without defendant’s negligence contributing thereto in slightest degree, produces injury. In this case, element of superseding causation was lacking and, as such, instruction was improperly given.

1992 Burdette v. Marks, 244 Va. 309, 421 S.E.2d 419.

Generally, there is no duty to control conduct of third person to prevent physical harm to another. This rule not applicable when special relationship exists: (1) between defendant and third person which imposes duty on defendant to control third person’s conduct, or (2) between defendant and plaintiff which gives right of protection to plaintiff. In this case sheriff came on scene of criminal assault yet took no action. Cause of action properly alleged.

1991 Miller v. Quarles, 242 Va. 343, 410 S.E.2d 639.

Quarles and his employer are mortgage brokers. They agree to find financing for Miller’s construction project through individual by the name of Keller. Quarles failed to disclose to Miller that he knew nothing about Keller and nothing about his financial status or source of his money. Pursuant to Quarles’ request, Miller tendered fifty thousand dollars to be held in escrow by Keller pending financing of loan. Keller took off with the money and was never heard from again. Miller sues on breach of contract and negligence theories. In this case Miller is not trying to turn breach of contract into tort. Instead we have situation wherein principal and agent are jointly liable for agent’s negligent performance of his common law duty of reasonable care under circumstances due to agent’s negligent performance of principal’s contract with Miller.

1991 Foreign Mission Bd. v. Wade, 242 Va. 234, 409 S.E.2d 144.

Family sent overseas as missionaries by Foreign Mission Board of Southern Baptist Convention. Board knew that father had been sexually abusing daughter. Mother thereafter sued Board alleging negligence for failing to disclose this and obtain treatment. Trial court struck negligence claim. Mother alleged an oral contract with Board to provide for safety of family. Supreme Court has recognized that in certain circumstances actions of party breaching contract can be both breach of contract and tortious breach of duty as stated in Kamlar. Duty tortiously or negligently breached must be common law duty, not one existing between parties solely by virtue of contract. Board in this case had no common law duty of care to family. That ruling was not appealed. Family seeks to establish tort claim based solely on the negligent breach of contractual duty with no corresponding common law duty. Trial court properly dismissed negligence count.

1990 Love v. Schmidt, 239 Va. 357, 389 S.E.2d 707.

If duty to maintain premises in safe condition is imposed by contract or law, it cannot be delegated to independent contractor.

1990 Marshall v. Winston, 239 Va. 315, 389 S.E.2d 902.

Negligence is not actionable unless there is legal duty. Generally there exists no duty to control conduct of third person to prevent harm to another. This is especially so in regard to criminal behavior. There is no such thing as negligence in abstract. Negligence must be in relation to some person. In regard to public officials, only violation of special duty owed to specific identifiable person or class of persons will give rise to civil liability.

1990 Cofield v. Nuckles, 239 Va. 186, 387 S.E.2d 493.

One who assumes to act, even though gratuitously, may thereby become subject to duty of acting carefully if he acts at all. In this case, motorist waved pedestrian to cross and then pedestrian struck by other motorist. No evidence of negligence on part of first motorist.

1988 Glisson v. Loxley, 235 Va. 62, 366 S.E.2d 68.

Tort is any civil wrong, injury, or wrongful act not involving breach of contract for which action will lie. Tort is also defined as violation of some duty owing to plaintiff imposed by general law or otherwise. Generally, duty must arise by operation of law and not by mere agreement of parties.

1988 C & P Tel. v. Dowdy, 235 Va. 55, 365 S.E.2d 751.

There can be no actionable negligence unless there is legal duty, violation of duty, and consequent injury.

1987 Blake Constr. Co. v. Alley, 233 Va. 31, 353 S.E.2d 724.

Suit by general contractor against architect for economic loss on construction job. Duty to use ordinary care and skill is not imposed in abstract. It results from conclusion that interests entitled to protection would be damaged if such care is not exercised. Traditionally, interests that have been deemed entitled to protection in negligence have been related to safety or freedom from physical harm. Thus, where personal injury is threatened, duty in negligence has been readily found. Property interests also have generally been found to merit protection from physical harm. However, where mere deterioration or loss of bargain is claimed, the concern is with a failure to meet some standard of quality. This standard of quality must be defined by reference to that which parties have agreed upon.

1984 Culberson v. McCloud, 227 Va. 249, 315 S.E.2d 219.

To constitute actionable negligence there must be legal duty, breach thereof, and injury caused by breach. Plaintiff offered evidence that Chevrolet vehicle that struck her from rear had been repaired two months before accident by defendant, Al’s Brake Service, after co-defendant, Alston, owner of another service station, had recommended to car’s previous owner that brakes be repaired. Previous owner could provide no evidence as to what repairs Al’s had made on car. Court held that they could find no proof of legal duty that Alston owed plaintiff and as such motion to strike as to Alston was affirmed. Since record is devoid of any proof as to kind of brake work done by Al’s, motion to strike as to him likewise was properly sustained.

1980 Ayyildiz v. Kidd, 220 Va. 1080, 266 S.E.2d 108.

Malicious prosecution action. While negligence might be founded on duty owed to opposing party under code of professional responsibility, code is no basis for private cause of action.

1957 Perlin v. Chappell, 198 Va. 861, 96 S.E.2d 805.

Duty of ordinary care may arise from statute, ordinance or relation of parties.

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Duty-In General: Cases Summarized By Injury Lawyer

Contact Us For A Free Consultation

Contact Us For A Free Consultation