Present: All the Justices
ALEX YUZEFOVSKY
OPINION BY
v. Record No. 993015 JUSTICE LAWRENCE L. KOONTZ, JR.
January 12, 2001
ST. JOHN’S WOOD APARTMENTS, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
In this appeal, we consider whether the trial court
properly sustained a demurrer to a second amended motion for
judgment filed by a tenant against his landlord alleging fraud,
negligent failure to warn, and negligent failure to protect
concerning the danger of a criminal assault on the tenant by a
third party which occurred on the landlord’s property.
Because the procedural posture of this case controls our
consideration of the factual allegations of the pleading at
issue, we initially relate the proceedings in the trial court
that preceded the trial court’s sustaining the demurrer to that
pleading. On April 26, 1998, Alex Yuzefovsky, a tenant of St.
John’s Wood Apartments, filed a motion for judgment against St.
John’s Wood Apartments and the alleged owner of that
development, SJW, Limited Partnership. Under various theories,
Yuzefovsky alleged that these defendants were liable for
injuries he sustained on the property of St. John’s Wood
Apartments as a result of a criminal assault by a third party.
Prior to serving the original motion for judgment on these
defendants, Yuzefovsky filed an amended motion for judgment
adding as additional defendants General Services Corporation and
GSC Security. This pleading alleged that the former had an
ownership interest in St. John’s Wood Apartments and the latter
provided security services to the other defendants on the
premises of these apartments. This pleading included additional
theories of liability and increased ad damnum claims.
After the first amended motion for judgment was served on
the defendants, they filed a joint plea in bar of the statute of
limitations with respect to a number of the claims asserted by
Yuzefovsky and a demurrer to all of them. Thereafter, the trial
court sustained the plea in bar to one claim, sustained the
demurrer to the remaining claims except for a claim of breach of
contract, and granted Yuzefovsky leave to file a second amended
motion for judgment. On July 7, 1999, Yuzefovsky filed his
second amended motion for judgment reasserting each of the
claims to which the trial court had previously sustained the
defendants’ demurrer without material change in the factual
allegations. This pleading, however, did not reassert the claim
to which the plea in bar had been sustained or the contract
claim to which the demurrer had been overruled. The defendants
filed another demurrer to all the claims in the second amended
motion for judgment, the trial court sustained this demurrer,
and dismissed the case with prejudice.
2
Our consideration of the factual allegations in this case
is governed by the well-settled principle that when a circuit
court sustains a demurrer to an amended motion for judgment
which does not incorporate or refer to any of the allegations
that were set forth in a prior motion for judgment, we will
consider only the allegations contained in the amended pleading
to which the demurrer was sustained. Bell Atlantic-Virginia,
Inc. v. Arlington County, 254 Va. 60, 63 n.2, 486 S.E.2d 297,
299 n.2 (1997); see also Breeding v. Hensley, 258 Va. 207, 212,
519 S.E.2d 369, 371 (1999). Our consideration of those
allegations is further guided by well-settled principles of
appellate review. A demurrer admits the truth of the facts
contained in the pleading to which it is addressed, as well as
any facts that may be reasonably and fairly implied and inferred
from those allegations. Cox Cable Hampton Roads, Inc. v. City
of Norfolk, 242 Va. 394, 397, 410 S.E.2d 652, 653 (1991). A
demurrer does not, however, admit the correctness of the
pleader’s conclusions of law. Ward’s Equip., Inc. v. New
Holland North America, Inc., 254 Va. 379, 382, 493 S.E.2d 516,
518 (1997). Accordingly, we will consider the facts stated, and
those reasonably and fairly implied and inferred, in the second
amended motion for judgment in a light favorable to Yuzefovsky,
but we will review the sufficiency of the legal conclusions
ascribed to those facts de novo. In relating these facts we
3
will hereafter refer in context to all the defendants
collectively as “St. John’s Wood” and the apartment complex as
“the development.”
In December 1994, Yuzefovsky moved to Richmond to begin new
employment. His employer initially provided him with temporary
housing while he looked for permanent housing. In conducting
his housing search, Yuzefovsky was particularly concerned with
the issue of his personal security, desiring to find housing in
a safe and crime-free environment.
In discussing his interest in leasing an apartment in the
development with employees of St. John’s Wood, Yuzefovsky
indicated that he was unfamiliar with the area where the
development was located and expressed his concern for security.
He specifically asked the employees if the development “was safe
and whether there had been crime on and/or about the property.”
The employees told Yuzefovsky “that there had been no crimes at
[the property of] St. John’s Wood, and that it was safe.” They
further advised Yuzefovsky that “police officers lived in the
development and that police vehicles patrolled the property.”
Based upon these assurances, Yuzefovsky became a tenant of
St. John’s Wood, leasing an apartment in the development and
taking possession of it in February 1995. On November 21, 1996,
Yuzefovsky was confronted by an assailant armed with a sawed-off
shotgun in a walkway on the property of St. John’s Wood and
4
immediately adjacent to his apartment. The assailant shot
Yuzefovsky in the right shoulder, took his car keys, and fled in
Yuzefovsky’s vehicle. The assailant was subsequently arrested
and convicted of crimes related to this incident.
Yuzefovsky alleges that the employees of St. John’s Wood
knew that their representations that there had been no crimes
committed on or in the vicinity of the development, that the
development was safe, that police officers lived there, and that
police vehicles patrolled the development were false. He
further alleges that in 1994, 656 crimes, including 113 crimes
against persons, were reported to the Richmond City Police as
having occurred in the vicinity of the development and that
criminal activity in that vicinity remained at that level for
the next two calendar years. Yuzefovsky further alleges that
during the three-year period from November 21, 1993 to November
21, 1996, there were 257 crimes reported to Richmond City Police
that occurred on the development. 1 These crimes included “5
robberies . . ., 8 aggravated assaults, 13 simple assaults, 37
residential burglaries, 34 larcenies, 97 larcenies from the
1
Yuzefovsky does not allege with specificity how many of the
crimes on the property of St. John’s Wood occurred prior to his
decision to lease an apartment from St. John’s Wood. It is a
reasonable inference that at least some of these crimes occurred
prior to December 1994. Yuzefovsky also does not allege with
specificity how many of these crimes occurred, if any,
immediately prior to the November 21, 1996 assault upon him.
5
auto[mobile], 2 abductions, 30 property crimes and 26 motor
vehicles thefts.”
The legal theories of liability asserted by Yuzefovsky in
his second amended motion for judgment and for each of which he
sought $15,000,000 for compensatory damages, in summary, are:
(1) Fraud. Yuzefovsky alleges that the misrepresentations
by employees of St. John’s Wood that the development was safe
and crime-free and that police lived in and patrolled the
development “were negligent, reckless and/or intentional,” and
that he relied on these misrepresentations in leasing an
apartment at the development. Yuzefovsky alleges that the
injuries he sustained in the subsequent criminal assault were a
direct and proximate result of these misrepresentations.
(2) Duty to Warn. Yuzefovsky alleges that under the
circumstances of the previous criminal conduct that was known by
St. John’s Wood, they owed a duty to warn him that “violent
crime had taken place at [the development],” and that the
negligent failure to exercise that duty was a proximate cause of
the injuries he sustained in the subsequent criminal assault.
(3) Duty to Protect. Yuzefovsky alleges that St. John’s
Wood, “and in particular GSC Security,” owed a duty to protect
him against unsafe conditions or criminal activities of which
they knew or should have known. He alleges that St. John’s Wood
had undertaken the duty to protect their tenants through the use
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of a security service, and that having done so, St. John’s Wood
and this security service 2 were negligent in exercising that duty
by deploying inadequate numbers of security guards, using
“[i]mproper patrol techniques,” providing “[i]nadequate security
equipment,” and in failing to properly train, select, and
compensate their security guards. Yuzefovsky alleges that the
breach of this duty was a proximate cause of the injuries he
sustained in the subsequent criminal assault.
(4) Special Relationship. Yuzefovsky alleges that “[a]s a
tenant of [St. John’s Wood, they] had a special relationship
with [Yuzefovsky]. That [this] special relationship created a
duty to exercise reasonable care to protect [Yuzefovsky] against
criminal acts of third persons and to warn him of the danger of
such attacks, since the danger of such attacks [was] known
and/or reasonably foreseeable to [St. John’s Wood].” Yuzefovsky
alleges that the breach of the duties created by this special
relationship was a proximate cause of the injuries he sustained
in the subsequent criminal assault.
In a memorandum in support of the defendants’ demurrer to
the second amended motion for judgment, they contended that the
2
The relationship between General Services Corporation and
GSC Security is not clear from the record. For purposes of this
appeal, we draw the reasonable inference that General Services
Corporation is a management company and GSC Security is either a
unit of that company or a wholly owned subsidiary of it.
7
allegations of fraud were based upon vague and indefinite
statements of opinion and not fact, and that Yuzefovsky was not
justified in relying on these statements. They further
contended that Yuzefovsky had a duty to undertake his own
investigation of the area rather than relying on the statements
made by employees of St. John’s Wood.
As to the remaining claims of the second amended motion for
judgment, the defendants contended that the liability asserted
by each claim was founded upon the duty of St. John’s Wood to
warn and/or protect tenants against criminal assaults by unknown
third parties. The defendants contended that there is no
liability on a landlord in such circumstances because, as a
matter of law, there is no special relationship between landlord
and tenant that would give rise to such duties. They further
contended that even if there were a special relationship in this
case, there was no duty to warn or to protect because the
criminal act of the third party was not reasonably foreseeable.
The trial court sustained the defendants’ demurrer to the
fraud claim ruling that “[a]ny statement by [employees of St.
John’s Wood] that the area would be safe from crime is opinion,
not fact and not actionable.” The trial court further ruled
that even if such statements were actionable as fraud, the
8
allegations of fact failed to establish a causal nexus between
those statements and the criminal act that caused Yuzefovsky’s
injuries.
As to the various theories of negligence, the trial court
ruled that Virginia does not recognize a special relationship
between landlord and tenant giving rise to a duty to warn or to
protect. Thus, the trial court, relying primarily upon Wright
v. Webb, 234 Va. 527, 533, 362 S.E.2d 919, 922 (1987), further
ruled that a landlord is not liable for crimes committed by a
third party against the tenant on the landlord’s property in the
absence of knowledge that criminal assaults are occurring, or
are about to occur, on the premises which indicate an imminent
probability of harm to the tenant. This appeal followed.
DISCUSSION
Yuzefovsky assigns three errors to the trial court’s
judgment sustaining the demurrer. In his first assignment of
error, Yuzefovsky asserts that the trial court erred in ruling,
as a matter of law, that a landlord’s knowledge of prior
criminal assaults on or near the landlord’s property cannot give
rise to a duty to take reasonable measures to warn and/or
protect a tenant from reasonably foreseeable similar assaults.
He asserts in his second assignment of error that the trial
court erred in finding that the alleged false statements of St.
John’s Wood were mere opinions and, therefore, not actionable.
9
He asserts in his third assignment of error that the trial court
erred in ruling, as a matter of law, that the misrepresentations
by St. John’s Wood were not “a proximate cause” of Yuzefovsky’s
injuries. We will address each of these assignments of error
seriatim.
Negligence Issues
As we noted above, in ruling upon a demurrer the issue
before the trial court in this case, and before this Court on
appeal, is whether the facts alleged in Yuzefovsky’s second
amended motion for judgment, along with the facts that may be
reasonably and fairly implied by or inferred therefrom, are
sufficient to support the causes of action under the theories of
liability to which those facts relate. With respect to claims
of negligence, the factual allegations must establish the
existence of a duty of care. Whether such duty exists is “a
pure question of law.” Burns v. Johnson, 250 Va. 41, 45, 458
S.E.2d 448, 451 (1995). If the allegations are legally
sufficient to establish a duty as a matter of law, then it
becomes a matter for the jury, upon the evidence, to
“determine[] whether the duty has been performed.” Acme
Markets, Inc. v. Remschel, 181 Va. 171, 178, 24 S.E.2d 430, 434
(1943).
The parties do not dispute the law applicable to the
various legal assertions contained in Yuzefovsky’s second
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amended motion for judgment. Rather, they dispute whether the
factual allegations made therein sufficiently state the
necessary elements of a cause of action against an owner or
occupier of land, for injuries caused by the criminal act of a
third party. The question of when and under what circumstances
an owner or occupier of land will be required either to warn his
invitees or tenants of, or protect them against, harm from the
criminal act of a third party is always fact specific and, thus,
not amenable to a bright-line rule for resolution. In that
regard, while the general rule that no such duty is owed is
unquestionably the law of this Commonwealth, Gupton v. Quicke,
247 Va. 362, 363, 442 S.E.2d 658, 658 (1994), we have recognized
that there are narrow exceptions to this rule.
It is worthy of note, however, that while recognizing these
exceptions, we have rarely found the circumstances of the cases
under review to warrant the application of these exceptions.
Compare, e.g., Burns, 250 Va. at 44-45, 458 S.E.2d at 450
(business owner not liable for criminal assault on invitee),
Wright, 234 Va. at 533, 362 S.E.2d at 922 (business owner not
liable for criminal assault on invitee), and Gulf Reston, Inc.
v. Rogers, 215 Va. 155, 159, 207 S.E.2d 841, 845 (1974)(landlord
not liable for criminal assault on tenant) with Dudley v.
Offender Aid and Restoration of Richmond, Inc., 241 Va. 270,
279, 401 S.E.2d 878, 883 (1991)(private operator of “half-way
11
house” for felons had special relationship with its clients and
owed duty of care to the public to control clients’ actions).
We have, however, set out in these and other cases the general
analysis applicable for determining whether an exception to the
general rule applies.
First, the plaintiff must establish that there is a special
relationship, either between the plaintiff and the defendant or
between the third party criminal actor and the defendant. 3 See,
e.g., Holles v. Sunrise Terrance, Inc., 257 Va. 131, 136, 509
S.E.2d 494, 497 (1999). The necessary special relationship may
be one that has been recognized as a matter of law, such as that
between an innkeeper and guest, or it may arise from the factual
circumstances of a particular case. Second, the plaintiff must
establish that the special relationship creates a duty of care,
such as to warn and/or protect the plaintiff, as a result of the
particular circumstances of that special relationship, including
the known or reasonably foreseeable danger of harm to the
plaintiff from the criminal act of the third party. Whether the
circumstances will warrant the imposition of those duties, as we
3
Yuzefovsky does not contend that there was a special
relationship between St. John’s Wood and the third party
criminal actor in this case. We note that the existence of such
a relationship is almost always limited to a defendant’s
exercise of a legal duty to control the actions of a person in
custody or on parole. See, e.g., Dudley, 241 Va. at 275-76, 401
S.E.2d at 881.
12
have stated, is a fact-specific determination. Because the
imposition of those duties “does not depend upon foreseeability
[of harm to the plaintiff] alone,” consideration must be given
to “the magnitude of the burden of guarding against [harm to the
plaintiff] and the consequences of placing that burden on the
defendant.” Gulf Reston, 215 Va. at 159, 207 S.E.2d at 845
(citation omitted); see also Wright, 234 Va. at 531, 362 S.E.2d
at 921. Guided by these principles, we begin our analysis to
determine whether there was a special relationship between St.
John’s Wood and Yuzefovsky and, if so, whether any duty of care
was owed by St. John’s Wood to Yuzefovsky under the factual
allegations in the second amended motion for judgment.
Initially, we observe that, with regard to Yuzefovsky’s
negligence claims, the separate counts in the second amended
motion for judgment incorporate by reference “all other
allegations” in that pleading. One such allegation is that
Yuzefovsky “was a business invitee and tenant” of St. John’s
Wood. In a separate count entitled “Special Relationship,”
Yuzefovsky further alleges that because he was their tenant that
a special relationship existed between himself and St. John’s
Wood. On appeal, Yuzefovsky does not rely on the status of
business invitee to advance his assertions that the trial court
erred in sustaining the demurrer to his pleading. Rather, his
assertions are made in the context of the relationship between
13
landlord and tenant and, accordingly, we will review the
allegations in the second amended motion for judgment, including
the count entitled “Special Relationship,” in that context.
In prior cases, we have recognized that the necessary
special relationships that may create a duty of care include
those of common carrier and passenger, business proprietor and
invitee, innkeeper and guest, and employer and employee. A.H.
v. Rockingham Publishing Co., 255 Va. 216, 220, 495 S.E.2d 482,
485 (1998); see also Klingbeil Management Group Co. v. Vito, 233
Va. 445, 448, 357 S.E.2d 200, 201 (1987). Although we have
observed that this list is not exclusive, we have consistently
rejected the contention that the relationship of landlord and
tenant, without more, constitutes a special relationship such
that a duty of care may arise with regard to the conduct of a
third party. Gulf Reston, 215 Va. at 159, 207 S.E.2d at 845;
Klingbeil, 233 Va. at 448, 357 S.E.2d at 201 (holding that
“there was no such common-law duty on this landlord” (emphasis
added)).
Rather, we have stressed that while a landlord owes a duty
to his tenant to maintain in a reasonably safe condition those
areas over which he has control, the landlord is not an insurer
of his tenant’s safety. Gulf Reston, 215 Va. at 157, 207 S.E.2d
at 844. Thus, as a general rule, we have interpreted the
landlord’s duty as being limited to maintaining in good repair
14
and free of latent defects the areas over which the landlord has
control, and not to require the landlord “to act as a policeman
. . . ‘to protect his tenant from a criminal act by a third
person.’ ” Klingbeil, 233 Va. at 447, 357 S.E.2d at 201
(citation omitted). Nonetheless, in Gulf Reston and Klingbeil
we made clear that our holdings were based upon the specific
facts of those individual cases. We did not preclude a
determination under different circumstances that the necessary
special relationship between a landlord and his tenant could be
established such as to create a duty of care upon the landlord
with regard to the criminal conduct of a third party that is an
exception to the general rule applicable to the landlord-tenant
relationship. Gulf Reston, 215 Va. at 159, 207 S.E.2d at 845;
see also A.H., 255 Va. at 221 n.4, 495 S.E.2d at 486 n.4.
Assuming, without deciding, that the facts and
circumstances as alleged in the second amended motion for
judgment establish a special relationship between St. John’s
Wood and Yuzefovsky, we must also consider whether those facts
and circumstances are also sufficient to establish that St.
John’s Wood had a duty of care to warn and/or protect Yuzefovsky
against the danger of harm from the criminal conduct of a third
party. We are of opinion that neither duty is established on
the facts and circumstances alleged in this case.
15
Although in our prior landlord-tenant cases we found no
special relationship and, thus, we did not reach the issue of
what circumstances would give rise to a duty of care on the part
of the landlord, in Wright, we observed that “[a] business
invitor owes the same duty of reasonable care to his invitee
that a landlord owes to his tenant.” 234 Va. at 530, 362 S.E.2d
at 921. With respect to whether a particular special
relationship creates a duty to protect the invitee from the
criminal acts of a third party, we went on to say that “[i]n
ordinary circumstances, it would be difficult to anticipate
when, where, and how a criminal might attack a business
invitee.” Id. at 531, 362 S.E.2d at 921. Accordingly, we held
that a business owner “does not have a duty to take measures to
protect an invitee against criminal assault unless he knows that
criminal assaults against persons are occurring, or are about to
occur, on the premises which indicate an imminent probability of
harm to an invitee.” Id. at 533, 362 S.E.2d at 922. We hold
that this same standard applies to the determination whether a
landlord owes a duty of care to protect a tenant with whom a
landlord has a special relationship.
There are no express allegations in Yuzefovsky’s second
amended motion for judgment that St. John’s Wood knew that
criminal assaults against persons were occurring, or were about
to occur, on the premises that would indicate an imminent
16
probability of harm to Yuzefovsky or another tenant, nor can
such knowledge be reasonably implied or inferred from the
allegations made. Moreover, Yuzefovsky’s allegations, if
proven, do not establish an imminent probability of injury to
him from a criminal assault by a third party on the premises.
There is no allegation that would support the conclusion that on
or near the date when Yuzefovsky was injured such assaults or
other crimes against persons were occurring, or about to occur,
on the premises of St. John’s Wood. Thus, we need not consider
whether foreseeable harm at the heightened degree of probability
established in Wright existed at some other time during this
landlord-tenant relationship. Cf. Thompson v. Skate America,
261 Va. ___, ___, ___ S.E.2d ___, ___ (2001)(decided today,
holding that imminent probability of harm is a heightened degree
of foreseeable harm). Accordingly, we hold that the allegations
of the second amended motion for judgment are insufficient to
establish that St. John’s Wood had a duty to protect Yuzefovsky
under the facts of this case.
Similarly, although we have not previously addressed the
question whether a business owner, including a landlord, in a
special relationship has a duty to warn an invitee or tenant of
the danger of harm from criminal activity by a third party on
the business owner’s premises, we find no reason in this case to
invoke a standard different from that used to determine whether
17
there is a duty to protect. Cf. Dudas v. Glenwood Golf Club,
261 Va. ___, ___, ___ S.E.2d ___, ___ (2001)(decided today,
applying the same standard for both duties in a business owner-
invitee relationship). Because Yuzefovsky had resided at the
property of St. John’s Wood for approximately one year and nine
months before he was injured, we hold that there is no basis to
impose a continuing duty to warn against a danger that was not
imminent.
For these reasons, we hold that Yuzefovsky’s second amended
motion for judgment does not establish a jury issue whether he
was in imminent danger of harm from a criminal assault by a
third party of which the defendants were aware and, thus, the
trial court did not err in sustaining the demurrer to
Yuzefovsky’s negligence claims.
Fraud Issues
Yuzefovsky’s second assignment of error asserts that the
trial court erred in finding that the false statements he
alleged were made to him by employees of St. John’s Wood
concerning the safety of the development were mere opinions and,
thus, could not form the basis of a claim for fraud. St. John’s
Wood contend that the employees’ statements concerning safety
are clearly matters of opinion and that the claim that the
development was crime-free “is so exaggerated that no reasonable
person would be justified in relying upon it.” Expanding on
18
this latter contention during oral argument, counsel for St.
John’s Wood asserted that these statements were “puffing,” that
is “[t]he expression of an exaggerated opinion-as opposed to a
factual representation-with the intent to sell a good or
service.” Black’s Law Dictionary 1247 (7th ed. 1999). We
disagree with St. John’s Wood.
“It is well settled that a misrepresentation, the falsity
of which will afford ground for an action for damages, must be
of an existing fact, and not the mere expression of an opinion.
The mere expression of an opinion, however strong and positive
the language may be, is no fraud.” Saxby v. Southern Land Co.,
109 Va. 196, 198, 63 S.E. 423, 424 (1909). “We have not,
however, established a bright line test to ascertain whether
false representations constitute matters of opinion or
statements of fact. Rather, ‘each case must in a large measure
be adjudged upon its own facts, taking into consideration the
nature of the representation and the meaning of the language
used as applied to the subject matter and as interpreted by the
surrounding circumstances.’ " Mortarino v. Consulting
Engineering Services, Inc., 251 Va. 289, 293, 467 S.E.2d 778,
781 (1996)(quoting Packard Norfolk, Inc. v. Miller, 198 Va. 557,
562, 95 S.E.2d 207, 211 (1956)).
Here, the statements alleged to have been made by the
employees of St. John’s Wood were not volunteered as part of a
19
“sales pitch” to every potential tenant, but were specifically
made in response to the Yuzefovsky’s expressed concern for his
personal security. Moreover, the specific statements that the
development was crime-free, that police officers lived there,
and that police vehicles patrolled the development are not
matters of opinion or puffing, especially when, as is alleged,
the employees knew these statements to be objectively false.
Accordingly, we hold that the trial court erred in finding that
these false statements were not fraudulent misrepresentations of
fact.
Yuzefovsky’s third assignment of error raises the issue
whether the trial court erred in finding that, even if these
statements were fraudulent, there was no causal nexus between
the fraud and the subsequent injuries resulting from the assault
by a third party unknown to St. John’s Wood. St. John’s Wood
contend that at best the allegations constitute a claim for
fraudulent inducement to enter into a contract and that the
damages resulting from the criminal assault more than a year and
half after the alleged act of fraud are too remote to give rise
to liability. We agree with St. John’s Wood.
To sustain a claim of actual fraud, the plaintiff must
prove a false representation, of a material fact, made
intentionally and knowingly, with intent to mislead, reliance by
the party misled, and resulting damage. Evaluation Research
20
Corp. v. Alequin, 247 Va. 143, 148, 439 S.E.2d 387, 390 (1994).
Moreover, the “fraud must relate to a present or pre-existing
fact, and cannot ordinarily be predicated on unfulfilled
promises or statements as to future events.” Soble v. Herman,
175 Va. 489, 500, 9 S.E.2d 459, 464 (1940); see also Lumbermen’s
Underwriting Alliance v. Dave’s Cabinet, Inc., 258 Va. 377, 382,
520 S.E.2d 362, 365 (1999); Patrick v. Summers, 235 Va. 452,
454, 369 S.E.2d 162, 164 (1988).
In determining whether a cause of action for fraud sounds
in contract or tort, and the damages that will arise therefrom,
the source of the duty to abstain from making the fraudulent
representation must be ascertained. Richmond Metropolitan
Authority v. McDevitt Street Bovis, Inc., 256 Va. 553, 558, 507
S.E.2d 344, 347 (1998). “[A] party can, in certain
circumstances, show both a breach of contract and a tortious
breach of duty. However, ‘the duty tortiously or negligently
breached must be a common law duty, not one existing between the
parties solely by virtue of the contract.’ ” Id. (citation
omitted).
It is clear that the duty to refrain from making these
statements relates to the contract Yuzefovsky was induced to
sign, and not from a common law duty. In addition, the assault
by the third party was remote in time from the execution of the
contract and, thus, the damages for which Yuzefovsky sought
21
recovery under the theory of fraud did not directly result from
the fraudulent inducement to enter into that contract.
Accordingly, we hold that the trial court did not err in
sustaining the demurrer to the claim for fraud.
CONCLUSION
For these reasons, we will affirm the judgment of the trial
court sustaining the demurrer to Yuzefovsky’s second amended
motion for judgment.
Affirmed.
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