Tort Law

Brien Roche

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 Privity. For more information about privity issues see the pages on Wikipedia.  

Privity-Statutes

See Va. Code § 8.01-223 indicating that lack of privity is no defense in negligence actions.

See Va. Code § 8.2-318 (UCC) indicating lack of privity is no defense in action against manufacturer or seller of goods.

Privity-Cases

1998 State Farm Fire & Casualty Co. v. Mabry, 255 Va. 286, 497 S.E.2d 844.

Martin was injured in home of Mabry when Mabry shot her four times using two pistols. Mabry is insured by State Farm for homeowners coverage. Martin asserted liability claim. State Farm defended under reservation of rights. Martin and Mabry in the liability claim entered into consent judgment. That consent judgment is not binding on State Farm as to issue of whether conduct of Mabry was negligent or intentional since necessary element of collateral estoppel is identity of parties. In addition, there is no privity between State Farm and Mabry since State Farm is taking different position on coverage issue than what Mabry asserts.

1997 Beard Plumbing & Heating v. Thomson Plastics, Inc., 254 Va. 240.

Claim for implied warranty of merchantability. Privity is required to recover economic loss under Va. Code § 8.2-715 (2) in spite of the language contained in Va. Code § 8.2-318.

1996 Gerald M. Moore & Son, Inc. v. Drewry, 251 Va. 277, 467 S.E.2d 811.

In absence of privity, person cannot be held liable for economic loss damages caused by negligent performance of contract.

1993 Ward v. Ernst & Young, 246 Va. 317, 435 S.E.2d 628.

Sole shareholder of corporation sued accountants for alleged malpractice on breach of contract theory, negligence theory, and third-party beneficiary theory. Demurrer properly sustained as to breach of contract theory and negligence theory since there was no privity. Loss in this case was purely economic loss and was not in nature of damage to property. Jury issue properly presented as to third-party beneficiary theory since there was evidence that contracting parties intended to confer benefit upon plaintiffs in this case.

1989 Copenhaver v. Rogers, 238 Va. 361, 384 S.E.2d 593.

Legal malpractice case. In case involving purely economic loss and no property damage or personal injury, privity of contract must be established.

1989 Rotonda Condo. Unit Owners Ass’n v. Rotonda Assocs., 238 Va. 85, 380 S.E.2d 876.

Plaintiff sought only to recover damages for economic losses associated with cost of repairing defects. Such economic losses are not recoverable in tort; they are purely result of disappointed economic expectations and law of contract provides sole remedy.

1988 Sensenbrenner v. Rust, Orling, Neale, Architects, Inc., 236 Va. 419, 374 S.E.2d 5.

Plaintiff contracted with builder to construct new home. Builder then contracted with architect to design home and pool. Builder contracted with Sylvan to build pool. Plaintiff alleged that due to negligent design, the pool settled and pipes broke causing erosion and settlement in foundation. Plaintiff sued architect. Since there is no privity and since loss is purely economic there can be no recovery. The controlling policy consideration of tort law is protection of persons and property from losses resulting from injury. Controlling policy consideration of contract law is protection of expectations bargained for. If that distinction is kept in mind, then it is easier to differentiate claims for injury to person or property from economic losses. In this case plaintiff bought a package (a house) that proved to be defective. It did not cause injury to person or property; therefore, damage is purely economic loss for which law of contract provides sole remedy.

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

Trial court cites common-law rule that party not in privity may not recover damages where there is no physical injury to person or property. Supreme Court, in reviewing Va. Code § 8.01-223 determines that this statute only applies to instances of injury to persons or property. Injury in this case was simply economic loss (loss of profit) and since statute is in derogation of common law, it will not be enlarged beyond its express terms. Therefore it does not apply to instances of economic loss.

1982 Kesler v. Fentross, 223 Va. 14, 286 S.E.2d 156.

Privity in context of collateral estoppel means mutual or successive relationship to same rights of property or such identification in interest as to represent same legal rights. In this case husband and wife stood in privity as to joint ownership of land.

1981 Nerro v. Ferris, 222 Va. 807, 284 S.E.2d 828.

Privity in res judicata issues generally involves party so identical in interest with another that he represents same legal right.

1961 General Bronze Corp. v. Kostopulos, 203 Va. 66, 122 S.E.2d 548.

No showing of duty owed by manufacturer to ultimate user in design and manufacture of door.

1959 Swift & Co. v. Wells, 201 Va. 213, 110 S.E.2d 203.

Consumer of food may recover against manufacturer for damages suffered irrespective of lack of privity.

1957 Storm v. Nationwide Ins. Co., 199 Va. 130, 97 S.E.2d 759.

Privity of persons discussed.

1951 Robey v. Richmond Coca-Cola Bottling Works, 192 Va. 192, 64 S.E.2d 723.

Court discusses but does not decide question of whether privity is necessary element to establish liability on part of carton maker where carton has broken and subsequently injured plaintiff.