Steward v. HOLLAND FAMILY PROPERTIES, LLC

Present: Kinser, C.J., Lemons, Millette, Mims, McClanahan and
Powell, JJ., and Lacy, S.J.

DONTRAL STEWARD, AN INFANT,
WHO SUES THROUGH ROSA STEWARD,
HIS MOTHER AND NEXT FRIEND

v. Record No. 110113 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
HOLLAND FAMILY PROPERTIES, LLC, June 7, 2012
ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
William C. Andrews, Judge Designate

In this appeal we consider whether Holland Family

Properties, LLC (“Holland”) and Jean Cross (“Cross”), landlords

subject to the Virginia Residential Landlord and Tenant Act,

Code §§ 55-248.2 et seq. (“the VRLTA”), have a duty in tort to

the tenants of leased properties to comply with building and

housing codes concerning public health and safety. For the

reasons stated below, we conclude that a tort duty is not

imposed on these landlords by the common law, the leases

executed in this case, or the VRLTA.

BACKGROUND

Because the circuit court decided this case on demurrers,

we recite properly pled facts as alleged in the amended

complaint. Yuzefovsky v. St. John’s Wood Apts., 261 Va. 97,

102, 540 S.E.2d 134, 136 (2001).
 In 1996, Rosa Steward leased a single-family home in

Suffolk, Virginia, from Holland, the owner of the property. 1

Rosa’s son, Dontral, was born June 7, 2000, and resided with

Rosa at the home until December 2001. During this time, Dontral

was a frequent visitor to residential property leased to Robert

L. and Bobbie A. Stevenson by Cross, the owner. Lead paint was

present on both the property owned by Holland and by Cross. The

lead paint was “cracking, scaling, chipping . . . and/or

otherwise deteriorating.” As a result of his exposure to high

levels of lead paint, Dontral suffered lead poisoning which

caused severe and permanent physical and mental impairments and

other damages.

Dontral Steward, through his mother and next friend,

(“Steward”) filed an amended complaint against Holland and Cross

(collectively “the Landlords”) seeking damages for his injuries

alleged to have been caused by his exposure to lead paint.

Steward claimed that the Landlords were liable for his injuries

based on theories of negligence per se and common law negligence.

The Landlords filed demurrers to both counts asserting that

neither the leases attached to the amended

complaint, nor the common law, nor any statute imposed a duty in

tort on them upon which tort recovery could be based.

1
The initial lease was executed by Hugh L. Holland, Jr.,
predecessor to Holland Family Properties, LLC.
2
 Following argument of counsel, the circuit court granted the

demurrers on both the negligence per se and common law negligence

counts and dismissed the amended complaint. Steward filed this

appeal challenging the circuit court’s rulings on both counts.

DISCUSSION

The principles of appellate review applicable in this case

are well established. A demurrer accepts as true all facts

properly pled, as well as reasonable inferences from those

facts. Abi-Najm v. Concord Condo., LLC, 280 Va. 350, 356-57,

699 S.E.2d 483, 486-87 (2010). 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. Id. The

decision whether to grant the demurrer is a question of law,

which we review de novo. Id.

I. Negligence Per Se

All negligence causes of action are based on allegations

that a person having a duty of care to another person violated

that duty of care through actions that were the proximate cause

of injury to the other person. Balderson v. Robertson, 203 Va.

484, 487-88, 125 S.E.2d 180, 183 (1962). The standard of care

required to comply with the duty of care may be established by

the common law or by statute. However, a statute setting the

standard of care does not create the duty of care. Williamson

v. The Old Brogue, Inc., 232 Va. 350, 355, 350 S.E.2d 621, 624

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(1986); Butler v. Frieden, 208 Va. 352, 353, 158 S.E.2d 121, 122

(1967); Smith v. Virginia Transit Co., 206 Va. 951, 957, 147

S.E.2d 110, 114-15 (1966).

When the standard of care is set by statute, an act which

violates the statute is a per se violation of the standard of

care. Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78-79, 597

S.E.2d 43, 46 (2004). A cause of action based on such a

statutory violation is designated a negligence per se cause of

action and requires a showing that the tortfeasor had a duty of

care to the plaintiff, the standard of care for that duty was

set by statute, the tortfeasor engaged in acts that violated the

standard of care set out in the statute, the statute was enacted

for public health and safety reasons, the plaintiff was a member

of the class protected by the statute, the injury was of the

sort intended to be covered by the statute, and the violation of

the statute was a proximate cause of the injury. McGuire v.

Hodges, 273 Va. 199, 206, 639 S.E.2d 284, 288 (2007).

The issue in this case involves the threshold element of a

negligence per se claim, that is, whether the Landlords have a

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duty of care that would provide grounds for a claim upon which

relief could be granted to Dontral. 2

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. 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. Caudill v. Gibson Fuel Co., 185 Va. 233, 239-

41, 38 S.E.2d 465, 469 (1946). Steward asserts that this common

law duty to maintain and repair the leased premises does not

apply to the tenant in this case and that it has shifted to the

Landlords for two reasons: (1) the Landlords agreed in the leases

to comply with “all building and housing codes materially

affecting health and safety” and (2) Code § 55-248.13, a part of

the VRLTA, imposed a duty on the Landlords to comply with

“building and housing codes materially affecting health and

safety.” The relevant building and housing code provisions that

set the standard of care were the provisions of the National

2
Duties and liabilities of a landlord to invitees of a
tenant, with respect to personal injuries, are ordinarily the
same duties a landlord owes to the tenant. Oliver v. Cashin,
192 Va. 540, 543, 65 S.E.2d 571, 572 (1951). Invitees and
guests “stand in the tenant’s shoes.” Id.
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Property Maintenance Code of 1996 (“BOCA”), specifically the

provision regarding lead paint. 3 Because the Landlords failed to

comply with the BOCA requirements, Steward asserts they violated

both the Virginia Uniform Statewide Building Code, Code §§ 36-97

et seq. (“VUSBC”), and section 14-31 of the Suffolk City Code,

and therefore were negligent per se. We begin by addressing

Steward’s claim that the leases imposed on the Landlords a tort

duty of care to comply with the building and housing codes.

A. The Leases

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

3
At the time of the events underlying Steward’s claims, PM-
305.4 of BOCA required that

Interior and exterior painted surfaces of dwellings, and
child and day care facilities . . . which contain lead
levels equal to or greater than 1.0 milligram per square
centimeter or in excess of 0.50-percent lead by weight
shall be maintained in a condition free from peeling,
chipping and flaking paint or removed or covered in an
approved manner.
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entry for that purpose must be done at reasonable times. 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. These provisions are no different in

kind than an agreement by the landlord to repair the premises.

Such agreements do not alter the common law rule regarding a

landlord’s tort liability. Caudill, 185 Va. at 240, 38 S.E.2d

at 469. Furthermore, the lease with Holland specifically states

that “[l]andlord covenants for Tenant’s quiet enjoyment of the

Property during the Term of this Lease and of any renewals or

extensions of such Term.” Thus, the leases do not support

Steward’s assertion that the tenants did not have a right of

possession and enjoyment of the leased premises.

Steward also asserts that the language in Holland’s lease

in which the landlord “covenants that the Property shall comply

with the requirements of building and housing codes materially

affecting health and safety and applicable to the Property”

shifted the duty to maintain and repair the property to Holland.

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.

Isbell v. Commercial Inv. Assocs., Inc., 273 Va. 605, 614-15,

644 S.E.2d 72, 76-77 (2007); Luedtke v. Phillips, 190 Va. 207,

7
211, 56 S.E.2d 80, 82-83 (1949); Caudill, 185 Va. at 239-41, 38

S.E.2d at 469.

For these reasons, we reject Steward’s claim that the terms

of the leases abrogated the common law tort duty of repair and

maintenance and placed the duty of repair and maintenance with

the Landlords.

B. The VRLTA

Steward’s second basis for asserting that the Landlords had

a tort duty to maintain the properties in compliance with BOCA

is that such duty was imposed on the Landlords by the VRLTA, in

Code § 55-248.13(A)(1). That subsection states that the

landlord shall “[c]omply with the requirements of applicable

building and housing codes materially affecting health and

safety.” We have previously rejected this argument in Isbell,

273 Va. at 614-15, 644 S.E.2d at 76.

In Isbell, the tenant argued that the VRLTA “abrogated the

common law and provided a statutory cause of action in tort

allowing a tenant to recover damages for personal injuries

sustained as a result of a landlord’s violation of the statutory

duties to ‘[c]omply with the requirements of applicable building

and housing codes materially affecting health and

safety’. . . .” 273 Va. at 612, 644 S.E.2d at 74. In response

to this argument we held that in enacting the VRLTA the General

Assembly did not abrogate the common law rule that the landlord

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is not liable in tort for failure to repair premises under the

control of a tenant. Id. at 614, 644 S.E.2d at 76. Included in

the factors we relied on in reaching this conclusion were the

comments to the Uniform Residential Landlord and Tenant Act,

which state that the counterpart to Code § 55-248.13(A)(1)

“follows the warranty of habitability doctrine.” Id. at 615,

644 S.E.2d at 76. That warranty is a contract duty, not a duty

grounded in tort. The unequivocal holding of Isbell is that the

VRLTA imposed contractual duties on landlords but it did not

impose a tort duty on landlords with regard to the

responsibility to maintain and repair leased premises under the

enjoyment and control of the lessee. Id. Therefore, the VRLTA

provides no basis for a negligence per se claim.

Steward nevertheless argues that Isbell is distinguishable

and does not resolve this case. We find unpersuasive Steward’s

arguments in support of his position. Steward asserts that the

plaintiff in Isbell claimed a cause of action based on violation

of the VRLTA, not a negligence per se action. This is a

distinction without a difference. As recited above, to proceed

with a negligence per se action, a plaintiff must first

establish a duty based in tort. In Isbell, this Court clearly

rejected the proposition that the VRLTA abrogated the common law

and created a tort duty on landlords subject to the VRLTA. If

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the duty was not created, it cannot supply the duty of care

required for a negligence per se cause of action.

Steward next points to footnote 2 in Isbell, which states

that the issue whether a “landlord’s breach of statutory duties

imposed by the [VRLTA could] form the basis of a common law

claim for negligence per se” was not before the Court in the

appeal. Id. at 611 n.2, 644 S.E.2d at 74 n.2. That footnote,

however, does nothing more than say that a claim based on common

law negligence per se is not addressed because such a claim was

not part of the appeal. It does not state or imply that the

holding of Isbell would not be applicable to a claim of common

law negligence per se if that claim were before the Court. More

importantly, 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.

Finally, Steward argues that applying Isbell to conclude

that the VRLTA does not provide the requisite statutory basis

for his claim creates an inconsistency with prior cases setting

out the elements of a negligence per se claim. Steward relies

primarily upon McGuire and Kaltman v. All Am. Pest Control,

Inc., 281 Va. 483, 706 S.E.2d 864 (2011), arguing that these

cases stand for the proposition that the statutes at issue there

provided the duty of care as well as the standard of care

10
applicable to the duty. To be consistent with these cases,

Steward asserts, requires the conclusion that the VRLTA

establishes the requisite tort duty to support a negligence per

se claim. Steward’s argument, in sum, is that McGuire and

Kaltman reversed the long-standing rule that an applicable duty

of care must be shown in a negligence case and created a new

rule that a statute setting a standard of care also creates the

duty of care. We disagree.

Neither McGuire, nor Kaltman, nor any other case cited by

Steward, stands for the legal proposition that Steward advances.

The existence of a duty of care running from the tortfeasor to

the injured party was not at issue in either McGuire or Kaltman.

The statutes at issue in both cases set the standard of care for

compliance with a duty of care the tortfeasors owed the injured

party.

In McGuire, the property owner had a common law duty to

maintain her premises, including the swimming pool on her

property, safe for invitees. The statute in question, section

616.9 of the National Building Code of 1984, and section 22-4 of

the Botetourt County Code, established the standard of care for

property owners with swimming pools on their property. The

property owner in McGuire was found negligent per se and liable

in tort due to an injury proximately caused by her failure to

comply with the standard of care established by the National

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Building Code of 1984 and the county code, which required owners

of property on which a swimming pool is located to erect and

maintain a fence and self-latching gate of a certain height

around the pool to make the body of water inaccessible from the

outside of the gate to small children. Id. at 203, 639 S.E.2d

at 286.

In Kaltman, as in this case, the trial court granted a

demurrer to pleadings claiming causes of action based on

negligence and negligence per se. In reversing the trial

court’s judgment, we held that a cause of action was

sufficiently pled. The pleadings in that case included an

allegation that the defendants had a common law duty to exercise

the skill and diligence of a reasonably prudent pest control

technician in the application of pesticides to the Kaltmans’

home. The Kaltmans alleged that the defendants breached this

duty by applying a pesticide that was inconsistent with its

labeling in violation of former Code § 3.1-249.64(A)(1994).

Kaltman, 281 Va. at 495-98, 706 S.E.2d at 871-73.

Finally, even if we were to accept Steward’s position that

the statutes setting the standard of care in McGuire and Kaltman

also created the duty of care, which we do not, those cases

would not require a similar finding in this case. As noted

above, we have already held that the VRLTA does not create a

duty of care based in tort on a landlord subject to the VRLTA.

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As we said above, the lack of such a tort-based duty precludes a

cause of action based on a violation of the VRLTA or on

negligence per se. To conclude otherwise, as Steward suggests,

requires reversal of Isbell, and we decline that invitation.

For these reasons we conclude that the trial court did not

err in holding that Count I of the amended complaint did not

state a cause of action upon which recovery could be based.

II. Common Law Negligence

In Count II of his amended complaint, Steward asserts that

the Landlords failed to inform or warn of the presence of lead

paint, that the Landlords failed to use ordinary care in making

repairs of the deteriorating lead paint, and failed to make

reasonable inspections of the property. A landlord who makes

repairs to leased property has a common law duty not to make

those repairs in a negligent manner and is liable for injuries

sustained as a result of negligent repair. Sales v. Kecoughtan

Housing Co., 279 Va. 475, 479, 690 S.E.2d 91, 93-94

(2010)(citing cases). See also Luedtke, 190 Va. at 212, 56

S.E.2d at 83.

The trial court found, and we agree, that there are no

assertions or facts alleged in the amended complaint that any

such 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

13
are not taken as true in considering a demurrer. Yuzefovsky,

261 Va. at 102, 540 S.E.2d at 137. In the absence of any

factual allegation that repairs were made, the amended complaint

fails to state a cause of action for negligent repair.

The allegations that the Landlords failed to inform and

warn the tenants of the existence of lead paint or deteriorating

lead paint are also contradicted by the pleadings themselves.

The leases attached to the amended complaint state that prior to

entering the leases both tenants were told that lead paint might

be on the leased premises and the tenants signed a statement

indicating that they received this notification along with a

pamphlet discussing the hazards of lead paint. The amended

complaint also recited that “[a]t all times material, the lead

paint was cracking, scaling, chipping, peeling, loose and/or

otherwise deteriorating, causing fragments, chips, flakes, dust

and other types of residue” from the paint. As the trial court

held, these allegations establish that the existence of the lead

paint was open and obvious and not a latent defect.

Based on the allegations in the amended complaint and the

leases attached to it, the trial court did not err in holding

that Count II of the amended complaint did not state a cause of

action upon which recovery could be based.

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 CONCLUSION

For the reasons stated, we hold that the trial court did

not err in sustaining the demurrers filed by the Landlords and

dismissing Steward’s amended complaint for failure to state a

cause of action. Accordingly, we will affirm the judgment of

the trial court.

Affirmed.

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