Kaltman v. ALL AMERICAN PEST CONTROL, INC.

Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Koontz, S.J. *

ALVIN KALTMAN, ET AL. OPINION BY
SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
v. Record No. 092541 March 4, 2011

ALL AMERICAN PEST
CONTROL, INC., ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge

In this appeal, a husband and wife filed complaints

against a pest control company and its employee after the

employee allegedly treated the couple’s home with a pesticide

that was not approved for residential use. We consider

whether the circuit court erred in sustaining demurrers to the

homeowners’ claims of negligence, willful and wanton conduct,

and negligence per se. The principal issue we decide is

whether the alleged acts of the company and employee sound in

tort or contract.

BACKGROUND

Since the circuit court decided this case upon a demurrer

without an evidentiary hearing, we will summarize the facts as

alleged in the pleadings. Eagles Court Condominium Unit

Owners Ass’n v. Heatilator, Inc., 239 Va. 325, 327, 389 S.E.2d

304, 304 (1990)). In doing so, we consider the facts stated

*
Justice Koontz presided and participated in the hearing
and decision of this case prior to the effective date of his
retirement on February 1, 2011; Justice Kinser was sworn in as
Chief Justice on February 1, 2011.
and all those reasonably and fairly implied in the light most

favorable to the nonmoving parties, Alvin and Gwendolyn

Kaltman (“the Kaltmans”). Yuzefovsky v. St. John’s Wood

Apartments, 261 Va. 97, 102, 540 S.E.2d 134, 137 (2001).

In 1996, the Kaltmans hired All American Pest Control,

Inc. (“AAPC”) to treat and prevent pest infestation at their

home on a quarterly basis. On October 23, 2006, AAPC employee

Patric J. Harrison performed the Kaltmans’ quarterly pest

control treatment. At the time, Harrison was not a licensed

pesticide technician in the Commonwealth of Virginia.

Three days before treating the Kaltmans’ home, Harrison

treated a commercial establishment with Orthene pesticide.

After applying Orthene at that business, Harrison “fail[ed] to

thoroughly clean his pesticide application equipment.” As a

result, Harrison applied “Orthene dilution as a fan spray” to

the baseboards and adjoining floor surfaces throughout the

Kaltmans’ home, including “the untreated, porous concrete

surfaces in the basement and garage.”

As the pesticide was being applied, the Kaltmans

complained to Harrison about the “unusual and extraordinarily

pungent” odor. Harrison told them the smell would dissipate,

but it did not. Later that day, the Kaltmans telephoned AAPC

to report their concern about the “overwhelming stench” from

the pesticide treatment. They were told that Harrison had

2
applied an inappropriate pesticide that had a “very strong and

unpleasant odor.”

The Kaltmans reported the incident to the Virginia

Department of Agriculture and Consumer Services (“VDACS”).

During the investigation by VDACS, Harrison admitted that he

applied an Orthene dilution to the Kaltmans’ home. Harrison

also admitted that he falsified the pertinent work order by

documenting that he applied different pesticides.

Laboratory analyses performed by VDACS revealed

concentrations of acephate – a key toxic ingredient in Orthene

PCO Pellets – in the Kaltmans’ home. 1 Orthene PCO Pellets are

not licensed for residential use by VDACS. The material

safety data sheet for Orthene PCO Pellets states the

following: “This product is not for indoor residential use,”

“is for use in places other than private homes,” and “do not

treat unpainted masonry floors in poorly ventilated areas such

as garages or basements . . . since persistent odor could

develop.” 2

1
The Kaltmans allege that exposure to acephate is known
to cause irreversible nerve damage and to cause cancer in
laboratory animals.
2
Regulations promulgated by the United States Department
of Labor’s Occupational Safety and Health Administration
require chemical manufacturers and importers to obtain or
develop a material safety data sheet for each hazardous
chemical they produce or import. 29 C.F.R. § 1910.1200(g)
(2010). These sheets include such information as the physical
and health hazards of the chemical, warnings and instructions

3
 AAPC informed the Kaltmans that although the odor from

Orthene was unpleasant, it did not represent a health hazard.

The Kaltmans therefore made more than a dozen attempts to

eradicate the odor by washing the treated surfaces on their

hands and knees without using any protective equipment. They

also had their home professionally cleaned. However, high

concentrations of acephate remained in their home. Because of

the “noxious fumes,” their home was rendered uninhabitable for

a year, they sustained physical and emotional injuries, and

they incurred expenses to “remediate” the damage to their home

and personal effects.

On September 5, 2008, the Kaltmans each individually

filed complaints against AAPC and Harrison in the Circuit

Court of Fairfax County. Each complaint contained eleven

identical counts. The cases subsequently were consolidated by

consent order.

AAPC and Harrison filed motions craving oyer for the

service agreement between the Kaltmans and AAPC. The circuit

court granted their motions and the “Pest Control Service

Agreement” between the Kaltmans and AAPC became a part of the

pleadings. This agreement lists the pests to be controlled

and states that AAPC agrees “to apply chemicals to control

about the proper use of the chemical, and first aid procedures
to employ in the event of improper exposure. Id.

4
above-named pests in accordance with terms and conditions of

this Service Agreement. All labor and materials will be

furnished to provide the most efficient pest control and

maximum safety required by federal, state and city

regulations.”

AAPC and Harrison filed demurrers to all the claims

asserted against them. As will be discussed in more detail,

the circuit court sustained the demurrers to the Kaltmans’

claims of negligence (Counts One, Two, and Three), willful and

wanton conduct (Counts Four and Five), and negligence per se

(Counts Ten and Eleven). 3 The Kaltmans appeal.

DISCUSSION

The principles guiding our resolution of the issues

presented in this appeal are well-established. The purpose of

a demurrer is to determine whether a complaint states a cause

of action upon which relief may be granted. Tronfeld v.

Nationwide Mutual Ins. Co., 272 Va. 709, 712-13, 636 S.E.2d

447, 449 (2006). A demurrer admits the truth of all properly

pleaded facts to which it is addressed, as well as any facts

that may be reasonably and fairly implied and inferred from

those allegations. Dodge v. Randolph-Macon Woman’s College,

3
Counts Six, Seven, Eight, and Nine alleging negligent
infliction of emotional distress and nuisance were ultimately
non-suited by the Kaltmans even though the circuit court had
denied AAPC’s and Harrison’s demurrers to these counts.

5
276 Va. 1, 5, 661 S.E.2d 801, 803 (2008). A demurrer tests

the legal sufficiency of facts alleged in the pleadings, but

not the strength of proof. Glazebrook v. Board of

Supervisors, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003).

Because the decision whether to grant a demurrer is a question

of law, we review the circuit court’s decision de novo. Mark

Five Construction, Inc. v. Castle Contractors, 274 Va. 283,

287, 645 S.E.2d 475, 477 (2007).

I. Negligence

The Kaltmans’ first assignment of error asserts that the

circuit court erred in sustaining demurrers to their

negligence counts (Counts One, Two, and Three). Count One

alleges that AAPC was negligent and breached its duty to

exercise the skill and diligence of a reasonably prudent pest

control company by authorizing and allowing Harrison to apply

commercial pesticide without a commercial pesticide

certification or without first being registered as a pest

control technician as required by former Code § 3.1-

249.52(A)(1994). 4 Count Two alleges that AAPC is vicariously

4
Former Code § 3.1-249.52(A), which was repealed and
replaced effective on October 1, 2008 by Code § 3.2-3930(A),
stated in relevant part: “No person shall, in exchange for
compensation of any kind . . . use, except under supervised
conditions of training for certification, or supervise the use
of any pesticide without first obtaining certification as
either a commercial applicator or registered technician in
accordance with regulations promulgated by the Board.” Code

6
liable under the doctrine of respondeat superior for the

negligence of its employee Harrison, who was acting within the

scope of his employment when he applied a pesticide that was

not licensed and appropriate for use in residential settings.

Count Three alleges that Harrison was negligent in that he had

a duty to exercise the skill and diligence of a reasonably

prudent pest control technician, but he breached that duty by

improperly applying a pesticide that was not licensed and

approved for use in a residential setting, and by applying a

commercial pesticide without a commercial pesticide

certification or without first being registered as a pest

control technician as required by Code § 3.2-3930(A). All

three counts allege that the Kaltmans were injured as a

proximate result of AAPC’s and Harrison’s negligence.

The Kaltmans assert that, independent of the service

contract, AAPC and Harrison were required to exercise prudence

in their application of pesticides to the Kaltmans’ home. The

Kaltmans stress they are not seeking recovery for damage

caused by a failure of AAPC and Harrison to control pest

infestation in their home. Rather, the Kaltmans maintain they

are claiming personal injuries and damages to their property

§ 3.2-3930(A) features substantially similar language.
Accordingly, we will hereafter cite the current Code section.

7
resulting from breaches of duties imposed by the common law

and statutes.

In response, AAPC and Harrison contend that because their

duties arose from the service contract the Kaltmans cannot

maintain a cause of action for negligence against them. AAPC

and Harrison accept that the company assumed a contractual

duty to apply the appropriate pesticide to the Kaltmans’ home.

But this duty, according to AAPC and Harrison, exists whether

Harrison was licensed or not. And a breach of that duty, AAPC

and Harrison maintain, can only give rise to a breach of

contract claim. We disagree.

In support of their position, AAPC and Harrison rely

primarily on our decisions in Richmond Metropolitan Authority

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

(1998) and Dunn Construction Co. v. Cloney, 278 Va. 260, 682

S.E.2d 943 (2009). In Richmond Metropolitan Authority, a

municipal corporation entered into an agreement with a

contractor for the construction of a baseball stadium. 256

Va. at 555, 507 S.E.2d at 345. Many years later, the

municipal corporation learned that the contractor failed to

comply with the design specifications set forth in the

contract, despite its prior representations under oath that it

completed the construction work. Id. at 556, 507 S.E.2d at

345. As a result, the municipal corporation filed an action

8
against the contractor, alleging actual and constructive

fraud. Id. at 556, 507 S.E.2d at 346.

The issue on appeal was whether the contractor’s

misrepresentations about its compliance with the contract and

its “false applications under oath to induce payments” were

“separate and independent wrongs that [went] beyond [the]

contractual duties” and supported causes of action for actual

and constructive fraud. Id. at 557, 507 S.E.2d at 346. We

explained that the determination whether a cause of action

sounds in contract or tort depends on the source of the duty

violated. Id. at 558, 507 S.E.2d at 347. Because the

municipal corporation’s allegations of constructive fraud were

“nothing more than allegations of negligent performance of

contractual duties,” we held they were not actionable in tort.

Id. at 559, 507 S.E.2d at 347. Likewise, because “each

particular misrepresentation by [the contractor] related to a

duty or an obligation that was specifically required by the

. . . [c]ontract,” we held that the contractor’s

misrepresentations did not give rise to a cause of action for

actual fraud. Id.

In Dunn Construction, after the contractor failed to

build the front foundation wall of the property owner’s house

in accordance with the standard required by the building code,

cracks appeared in the wall and a portion of it bowed out

9
several inches. 278 Va. at 263, 682 S.E.2d at 944. The

property owner later paid the contractor the amount due under

the contract after the contractor falsely assured the owner

that he had repaired the defects. Id. at 263-64, 682 S.E.2d

at 944. The property owner then filed suit against the

contractor, seeking damages under theories of breach of

contract, negligence, and fraud. Id. at 264, 682 S.E.2d at

944-45.

On appeal, the issue was whether the contractor’s

fraudulent act was independent of the contractual relationship

between the contractor and the property owner such that the

owner could maintain an action for both breach of contract and

fraud. Id. at 266, 682 S.E.2d at 946. We recognized that “a

single act or occurrence can, in certain circumstances,

support causes of action both for breach of contract and for

breach of a duty arising in tort, thus permitting a plaintiff

to recover both for the loss suffered as a result of the

breach and traditional tort damages.” Id. at 266-67, 682

S.E.2d at 936 (citing Foreign Mission Bd. v. Wade, 242 Va.

234, 241, 409 S.E.2d 144, 148 (1991)). We nonetheless held

that the duty breached by the contractor was one arising out

of the contract, not out of any common law duties. Id. at

268, 682 S.E.2d at 947. Under the contract, the contractor

had a duty to construct the foundation wall “in a workmanlike

10
manner according to standard practices.” Id. The contractor

was required to make repairs under that same duty and,

therefore, the contractor’s false representation that he had

made the repairs related to a duty that arose under the

contract. Id. We explained that “[t]he fact that the

representation was made in order to obtain payment from [the

property owner] does not take the fraud outside of the

contract relationship, because the payment obtained was also

due under the original terms of the contract.” Id.

Most recently, in Abi-Najm v. Concord Condominium, LLC,

280 Va. 350, 354-55, 699 S.E.2d 483, 485 (2010), purchasers of

condominiums brought suit against the seller for breach of

contract, fraud in the inducement, and violation of the

Virginia Consumer Protection Act (“VCPA”), Code § 59.1-196 et

seq., after they discovered that the condominiums they

purchased did not contain the agreed upon hardwood flooring.

Regarding the purchasers’ fraud and VCPA’s claims, the circuit

court sustained the seller’s demurrer, finding that the

economic loss doctrine precluded a separate action in tort.

Id. at 356, 699 S.E.2d at 486.

We considered on appeal whether the purchasers alleged

that the seller breached a duty owed to them independent of

any of the contractual duties assumed by the seller. Id. at

361, 699 S.E.2d at 489. In doing so, we restated the

11
principles expressed in Richmond Metropolitan Authority and

Dunn Construction that whether a cause of action sounds in

contract or tort is ultimately determined by the source of the

duty violated, and that a single act or occurrence can, in

certain circumstances, support causes of action both for

breach of contract and for breach of duty arising in tort.

Id. As to the purchasers’ VCPA claims, we held the trial

court erred in sustaining the demurrers to these claims

because the VCPA imposes a statutory duty “not to misrepresent

the quality, grade, or style of goods” that exists independent

of the contracts. Id. at 362, 699 S.E.2d at 489. We likewise

reversed the demurrers to the purchasers’ fraud claims.

Distinguishing cases such as Dunn Construction and Richmond

Metropolitan Authority, we noted that the purchasers alleged

that the seller perpetrated a fraud “before a contract between

the two parties came into existence,” therefore, the duty the

seller allegedly breached could not logically find its source

in the parties’ contracts. Id. at 363, 699 S.E.2d at 490

(emphasis in original).

AAPC and Harrison assert that Abi-Najm is distinguishable

from this case because the Kaltmans made no complaint about

the company’s pre-contract conduct. AAPC and Harrison also

assert that the Kaltmans’ statutory claims are not akin to the

VCPA claims in Abi-Najm because the VCPA expressly provides a

12
right of action for actual damages, whereas the pesticide

statutes do not. See Code § 59.1-204. We are not persuaded

by these suggested distinctions.

“The primary consideration underlying tort law is the

protection of persons and property from injury, while the

major consideration underlying contract law is the protection

of bargained for expectations.” Filak v. George, 267 Va. 612,

618, 594 S.E.2d 610, 613 (2004). “The law of torts provides

redress only for the violation of certain common law and

statutory duties involving the safety of persons and property,

which are imposed to protect the broad interests of society.”

Id. “[L]osses suffered as a result of the breach of a duty

assumed only by agreement, rather than a duty imposed by law,

remain the sole province of the law of contracts.” Id.

Here, the Kaltmans are seeking redress for injuries to

their persons and property as a result of alleged breaches of

common law and statutory duties. The Kaltmans contracted with

AAPC for the treatment and prevention of pests in their home.

Under the terms of that contract, AAPC agreed “to apply

chemicals to control” pests in the Kaltmans’ home. Just

because the application of pesticides is included in AAPC’s

contractual duty to control pests, it does not follow that the

Kaltmans have contracted away their common law and statutory

rights. Because the Kaltmans have alleged that AAPC and

13
Harrison breached common law and statutory duties independent

of the company’s contractual duty to control pests, we hold

the trial court erred when it sustained the demurrers to the

Kaltmans’ negligence counts.

II. Willful and Wanton Conduct 5

The Kaltmans’ second assignment of error asserts that the

circuit court erred in sustaining demurrers to their willful

and wanton conduct counts (Counts Four and Five). Count Four

alleges Harrison acted recklessly in a manner that amounted to

willful and wanton disregard to the Kaltmans’ rights. As

evidence of this willful and wanton conduct, the Kaltmans

allege, among other things, that Harrison acted recklessly by

not thoroughly cleaning his pesticide equipment, by applying a

pesticide inconsistent with its labeling, and by falsifying

the work order. Count Five alleges AAPC is liable for

Harrison’s reckless actions, and AAPC itself acted recklessly

by authorizing and instructing Harrison to apply a commercial

pesticide without a license in violation of Code § 3.2-3930,

and by ratifying Harrison’s falsified work order. The

Kaltmans seek damages as a result of the willful and wanton

conduct of AAPC and Harrison, including punitive damages.

5
The terms “willful and wanton conduct” and “[w]illful
and wanton negligence” are different names for the same tort.
See Infant C. v. Boy Scouts of America, Inc., 239 Va. 572,
581-82, 391 S.E.2d 322, 327 (1990).

14
 The Kaltmans assert that Harrison showed a reckless

indifference to the consequences of his actions when he

applied Orthene in violation of the permissible uses set out

in its labeling. The Kaltmans point to Harrison’s

falsification of the work order as an indication that Harrison

knew his conduct probably would cause injury to the Kaltmans.

As to AAPC, the Kaltmans maintain that by authorizing and

instructing Harrison to apply commercial pesticides without a

license, and ratifying the falsified work order, AAPC’s

conduct also was willful and wanton.

AAPC and Harrison respond by contending that the Kaltmans

do not allege any facts that would suggest anything more than

an inadvertent oversight by Harrison to “thoroughly clean his

pesticide application equipment” when going from a commercial

job to a residential job. AAPC and Harrison assert that the

Kaltmans do not allege any facts that Harrison had a conscious

awareness of the danger and probable consequences of his

actions, and that he recklessly decided to proceed

notwithstanding that awareness. AAPC and Harrison further

assert that the facts alleged do not support a theory that

AAPC “authorized” and “instructed” Harrison to apply Orthene

in the Kaltmans’ home. Thus, AAPC and Harrison maintain that

the Kaltmans’ allegations cannot support a claim for willful

and wanton conduct. We agree.

15
 “Willful and wanton negligence is action taken in

conscious disregard of another’s rights, or with reckless

indifference to consequences that the defendant is aware, from

his knowledge of existing circumstances and conditions, would

probably result from his conduct and cause injury to another.”

Alfonso v. Robinson, 257 Va. 540, 545, 514 S.E.2d 615, 618

(1999); Harris v. Harman, 253 Va. 336, 340-41, 486 S.E.2d 99,

101 (1997). Each case raising an issue of willful and wanton

negligence must be evaluated on its own facts. Alfonso, 257

Va. at 545, 514 S.E.2d at 618; Harris, 253 Va. at 341, 486

S.E.2d at 102.

The facts as alleged indicate that AAPC’s unlicensed

technician, Harrison, failed to “thoroughly clean his

pesticide application equipment” before applying an “Orthene

dilution” to the Kaltmans’ home. These facts do not support a

claim that AAPC and Harrison acted with reckless indifference

to the consequences of their actions and with knowledge of

circumstances indicating that they would probably cause injury

to others. Accordingly, we hold the circuit court did not err

in sustaining the demurrers to the Kaltmans’ willful and

wanton conduct counts.

III. Negligence Per Se

The Kaltmans’ final assignment of error asserts that the

circuit court erred in sustaining demurrers to their

16
negligence per se counts (Counts Ten and Eleven). Count Ten

alleges AAPC was negligent per se by violating former Code

§ 3.1-249.64(A) (1994), which states, in relevant part, that

“[i]t [is] unlawful for any person to use or cause to be used

any pesticide in a manner inconsistent with its labeling.” 6

The Kaltmans allege that this statute was enacted for public

safety and that the Kaltmans are members of the class of

persons for whose benefit this statute was enacted. Count

Eleven makes the same allegations against Harrison. Both

counts allege that as a proximate result of AAPC’s and

Harrison’s violations of Code § 3.2-3939(B), the Kaltmans were

injured.

The Kaltmans assert that like the VCPA in Abi-Najm, Code

§ 3.2-3939(B) imposes duties on AAPC and Harrison separate and

apart from the contract, and that the violation of this

statute by AAPC and Harrison constitutes negligence per se. 7

The Kaltmans maintain that Code § 3.2-3939(B) was enacted for

public safety and that they are members of the class of

6
Former Code § 3.1-249.64(A) has been repealed and
replaced by Code § 3.2-3939(B) effective October 1, 2008. The
language of Code § 3.2-3939(B) is substantially similar to
former Code § 3.1-249.64(A). Accordingly, we will hereafter
refer to the current Code section.
7
The Kaltmans also contend that the licensing provisions
of Code § 3.2-3930 provide a basis for their negligence per se
claims. Counts Ten and Eleven of their complaints make no
such allegation. Therefore, we will not consider this
argument on appeal.

17
persons for whose benefit the statute was enacted. This is

so, the Kaltmans contend, because the purpose for legislation

regulating potentially hazardous products such as pesticides

is “the need to provide the particular consumer and the

general public with a higher and surer degree of protection

than is afforded by exclusive recourse to common-law

remedies.” McClanahan v. California Spray-Chemical Corp., 194

Va. 842, 851, 75 S.E.2d 712, 717-18 (1953).

Relying on their earlier arguments in opposition to the

Kaltmans’ negligence claims, AAPC and Harrison contend that

the Kaltmans cannot assert a claim for negligence per se for

what amounts to a breach of contract. Assuming, however, that

an ordinary negligence cause of action could be asserted

against them, AAPC and Harrison maintain that the Kaltmans

cannot also assert a claim for negligence per se. We

disagree.

The doctrine of negligence per se represents the adoption

of “the requirements of a legislative enactment as the

standard of conduct of a reasonable [person].” Butler v.

Frieden, 208 Va. 352, 353, 158 S.E.2d 121, 122 (1967). The

elements of negligence per se are well-established. First,

the plaintiff must prove that the defendant violated a statute

enacted for public safety. MacCoy v. Colony House Builders,

Inc., 239 Va. 64, 69, 387 S.E.2d 760, 763 (1990); Virginia

18
Elec. & Power Co. v. Savoy Const. Co., 224 Va. 36, 45, 294

S.E.2d 811, 817 (1982). Second, the plaintiff must belong to

the class of persons for whose benefit the statute was

enacted, and demonstrate that the harm that occurred was of

the type against which the statute was designed to protect.

McGuire v. Hodges, 273 Va. 199, 206, 639 S.E.2d 284, 288

(2007); Halterman v. Radisson Hotel Corp., 259 Va. 171, 176-

77, 523 S.E.2d 823, 825 (2000). Third, the statutory

violation must be a proximate cause of plaintiff’s injury.

Thomas v. Settle, 247 Va. 15, 20, 439 S.E.2d 360, 363 (1994);

Hack v. Nester, 241 Va. 499, 503-04, 404 S.E.2d 42, 43 (1990).

The first and second of these elements are issues of law

to be decided by a trial court, while the third element is

generally a factual issue to be decided by the trier of fact.

Schlimmer v. Poverty Hunt Club, 268 Va. 74, 79, 597 S.E.2d 43,

46 (2004). Therefore, in deciding whether the Kaltmans can

maintain their negligence per se claims, we will consider

whether Code § 3.2-3939(B) was enacted for public safety,

whether the Kaltmans are in the class of persons for whose

benefit the statute was enacted, and whether their injuries

were of the type that the statute was designed to protect.

19
 In McClanahan, we considered whether the former Virginia

Insecticide, Fungicide and Rodenticide Law 8 imposed on a

manufacturer of a fungicide used to treat apple orchards a

duty to warn consumers of the unusual hazards involved with

the use of its product. 194 Va. at 850, 75 S.E.2d 717. In

doing so, we concluded that the “Virginia insecticide statute”

was modeled after the Federal Insecticide, Fungicide, and

Rodenticide Act, former 7 U.S.C. §§ 135-135k. Id. We further

concluded that at the heart of “both the federal and Virginia

statutes lies the need to provide the particular consumer and

the general public with a higher and surer degree of

protection than is afforded by exclusive recourse to common-

law remedies.” Id. at 851, 75 S.E.2d at 717-18. Comparing it

to the Federal Food, Drug and Cosmetic Act, we found that the

Virginia insecticide statute commands a “liberal

interpretation” and “that violation of the statute constitutes

negligence as a matter of law precluding the need for

establishing the common-law elements of negligence. The

statute itself creates the standard of conduct required.” Id.

at 851-52, 75 S.E.2d at 718. We stated that the fact the

Virginia insecticide statute imposes a criminal penalty is

evidence of the high standard of care exacted of the

manufacturer. Id. at 852, 75 S.E.2d at 718. We further

8
Former Code § 3-198 et seq. (1950).

20
stated that “[i]t was the legislative intent to protect the

public against the use of harmful products, whether the harm

be to the user, the person or object on which used, or

strangers.” Id. at 859, 75 S.E.2d at 722.

Since the McClanahan decision in 1953, the General

Assembly has amended the insecticide statutes a number of

times. Their current form exists as the Virginia “Pesticide

Control” Act, Code § 3.2-3900, et seq. (the “Act”). The

Kaltmans base their negligence per se claims on the following

section of the Act:

It is unlawful for any person to use or cause to be
used any pesticide in a manner inconsistent with its
labeling or regulations of the Board, provided that
such deviation may include provisions set forth in
Section 2 (ee) of the Federal Insecticide, Fungicide
and Rodenticide Act (7 U.S.C. § 136 et seq.).

Code § 3.2-3939(B). In deciding whether this statute was

enacted for public safety, the statute cannot be read in

isolation. It must be construed in conjunction with the other

pesticide control statutes. Prillaman v. Commonwealth, 199

Va. 401, 405, 100 S.E.2d 4, 7 (1957) (“statutes are not to be

considered as isolated fragments of law, but as a whole, or as

parts of a great connected, homogeneous system, or a single

and complete statutory arrangement”) (citation omitted); see

also Evans v. Evans, 200 Va. 76, 84-85, 695 S.E.2d 173, 177

(2010) (citing and quoting Alston v. Commonwealth, 274 Va.

21
759, 652 S.E.2d 456, 462 (2007)(statutes dealing with a

specific subject must be construed together in order to arrive

at the object to be accomplished)).

In considering the Act as a whole, we perceive that its

dominant purpose has not changed since our decision in

McClanahan. For example, the Act still provides a criminal

penalty for violation of its provisions. See Code § 3.2-3947.

We therefore are of the opinion that the Act was enacted to

protect the public against the use of harmful chemicals. Cf.

Virginia Elec. & Power Co., 224 Va. at 44, 294 S.E.2d at 817

(finding that the dominant purpose of the Building Code is to

provide comprehensive protection of the public health and

safety); Butler, 208 Va. at 354, 158 S.E.2d at 123 (finding

that the purpose of a dog leash ordinance is to protect the

public against hazards created by dogs running at large).

Accordingly, we find that Code § 3.2-3939(B) is a public

safety statute. Furthermore, as consumers who allegedly were

injured as a result of an improper use of a pesticide, the

Kaltmans are members of the class of persons for whose benefit

the statute was enacted and who suffered an injury of the type

against which the statute protects. Because we find the

Kaltmans’ allegations support the first two elements of

negligence per se, we hold that the circuit court erred in

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sustaining the demurrers to the Kaltmans’ negligence per se

counts.

CONCLUSION

For these reasons, we will reverse the judgment of the

circuit court sustaining AAPC’s and Harrison’s demurrers to

Counts One, Two, Three, Ten, and Eleven of the Kaltmans’

complaints. We will affirm the court’s judgment sustaining

AAPC’s and Harrison’s demurrers to Counts Four and Five of the

Kaltmans’ complaints. The case will be remanded for further

proceedings in accordance with this opinion.

Affirmed in part,
reversed in part,
and remanded.

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