Opinion
Civil No.: CL10-6841
11-21-2011
Re: Daniel E. Moran v. Federal National Mortgage Association, et al.
EVERETT A. MARTIN, JR. JUDGE Joseph J. Perez, Esq.
Shuttleworth, Ruloff, Swain,
Haddad & Morecock
4525 South Boulevard, Suite 300
Virginia Beach, Virginia 23452 Alexander K. Page, Esq.
LeClair Ryan
951 East Byrd Street, Eighth Floor
Richmond, Virginia 23219 Herbert V. Kelly, Jr., Esq.
Jones, Blechman, Woltz & Kelly
P. O. Box 12888
Newport News, Virginia 23612 Stephen A. Horvath, Esq.
Bancroft, McGavin, Horvath &
Judkins
3920 University Drive
Fairfax, Virginia 22030 R. Craig Gallagher, Esq.
Furniss, Davis, Rashkind & Saunders
P. O. Box 12525
Norfolk, Virginia 23541 Dear Gentlemen:
In his amended complaint the plaintiff alleges he entered a house owned by the Federal National Mortgage Association ("FNMA") around noon on September 14, 2009, as a prospective purchaser, and:
...while exercising due care for his own safety and free from any negligence on his part, sustained serious injuries when he entered a dark, unlit staircase to the basement that, unknown to him, was missing all of the stairs except for the top three, and he fell approximately six to eight feet to the concrete basement floor below.Amended Complaint, paragraph 17. The plaintiff further alleges he sustained serious injuries from the fall. He also names as defendants J.S.B. Realty Corporation ("JSB"), which was engaged to sell the property for FNMA, and Alex Nova and Jackie Crawford, two of its brokers. All the defendants have filed demurrers.
Contributory Negligence
This defense is rarely raised by demurrer because the complaint rarely shows it. No defendant specifically raised contributory negligence in the demurrer. FNMA raised it in its memorandum in support of its demurrer filed on September 27; JSB raised it in its reply memorandum filed on October 6. The issue was argued at the hearing on October 11 without objection. I conclude the issue was raised for purposes of Code of Virginia §8.01-273(A). FNMA and JSB rely on two cases to support their claim.
In Baker v. Butterworth, 119 Va. 402, 89 S.E. 849 (1916), the circuit court overruled a demurrer raising contributory negligence and a jury returned a verdict of $1,000 for the plaintiff. The defendant argued on appeal that the circuit court erred in overruling the demurrer. The Supreme Court agreed, reversed the circuit court's judgment, and dismissed the case. The Court held:
...still the demurrer to the declaration should have been sustained if the declaration, on its face, discloses that the plaintiff was guilty of negligence which contributed proximately to the cause of her injuries.119 Va. at 404, 89 S.E. at 849. The plaintiff alleged she was "carefully and cautiously" making her way from her room through a dark hallway and fell headlong down a back stairway. Ibid. Baker has never been overruled, questioned, or criticized.
In Smith v. Wiley-Hall Motors, Inc., 184 Va. 49, 34 S.E.2d 233 (1945), the plaintiff walked into a dark area of a gas station and was injured when he fell into a grease pit. The case was submitted to a jury, which found for the defendant. On appeal the Supreme Court affirmed and held "the case is without merit on the facts presented" and "[a]s indicated, we do not think the plaintiff was entitled to any instruction...." 184 Va. at 52, 34 S.E.2d at 233-34.
Would the present Supreme Court rule as it did in Baker? I think not. The substantive law of contributory negligence has not changed since Baker and Smith, but the appellate reception of pre-trial dismissals of negligence actions is now quite frosty. The Supreme Court has often criticized actions by circuit courts that "short-circuit" litigation. Motions to strike are disfavored in negligence actions. Rascber v. Friend, 279 Va. 370, 689 S.E.2d 661 (2010); Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d 440 (1985). Summary judgment is a "drastic remedy" and disfavored in negligence actions. Fultz v. Delhaize America, Inc., 278 Va. 84, 677 S.E.2d 272 (2009). As tempting as it might be to find contributory negligence as a matter of law on the face of this amended complaint, if I were to do so I would probably be remiss if I did not also instruct the Clerk to stamp "REVERSE ME!" in large orange letters on the cover of the file he sends to Richmond. Thus, I believe I must consider the other arguments the defendants have made.
The Common Law Duties of a Real Estate Agent
The leading case you have cited is Turner v. Carneal, 156 Va. 889, 159 S.E. 72 (1931). There the agent was engaged to lease an apartment and was showing it to a prospective tenant who was injured when she fell through an open trap door in a dark hallway. There was a verdict for the plaintiff, which the trial court set aside, and the Supreme Court affirmed.
The defendants rely on the statement that the plaintiff must prove "a positive act of negligence" by the agent. The Court, however, immediately defined that as merely a breach of duty owed to the plaintiff, 156 Va. at 893, 159 S.E. at 73. The Court then approved a "knew or ought to have known of the danger" jury instruction given by the trial court. 156 Va. at 894-95, 159 S.E. at 74. The approved instruction also stated that ordinarily "the agent is not in the position of the owner or occupant of the premises and is not under liability to those visiting the premises as prospective tenants in order to ascertain their suitability and condition...." Ibid.
What are the agents here alleged to have done? "Upon information and belief" they marketed the house as having a basement. They "or a person or persons on their behalf took photographs of several rooms, and placed a sign in the house and a lockbox behind it (paragraph 12); they listed the property for sale on September 10 and someone entered it that day (paragraph 13); someone from JSB gave the plaintiff the combination to the lockbox (paragraph 15). There is no allegation they knew of the danger; sufficient facts have not been pleaded to show they ought to have known of it. There is no specific allegation that Nova or Crawford ever entered the property. There is no allegation that any agent or employee of JSB had inspected the property, or had shown it to a prospective purchaser before the plaintiff entered, or was on the property when the plaintiff fell, There is no allegation anyone warned JSB, Nova, or Crawford of this dangerous condition. There is an allegation FNMA had an inspection made in late August of 2009, but there is no claim JSB, Nova, or Crawford ever saw it or that any problem with the stairs was noted (paragraph 14). Rule 3:18(b) allows negligence to be pleaded "without specifying the particulars," but there must be sufficient facts alleged to demonstrate a duty and a breach.
In paragraphs 19 and 20 the plaintiff alleges that a real estate agent engaged to sell property has the duties to keep the premises reasonably safe and to inspect, repair, and maintain the premises. He cites no authority in support of his claim, and Turner is against him on this. I sustain the demurrers of JSB, Nova, and Crawford to the claim for common law negligence.
Common Law Duty of FNMA
As the owner of the property, FNMA had a duty to use ordinary care to have the premises in a reasonably safe condition for an invitee's visit. Franconia Associates v. Clark, 250 Va. 444, 468 S.E.2d 670 (1995). An invitee entering a building with an interest in purchasing it might reasonably be expected to look at the basement. A dark stairway with several missing steps is not reasonably safe. I overrule FNMA's demurrer to the claim for common law negligence.
Negligence Per Se
In paragraph 23 of the amended complaint, the plaintiff cites nine building code violations to support his claim. Seven of them do not apply to the defect claimed here, i.e., missing steps: Virginia Maintenance Code (the "Maintenance Code") §§305.5 (handrails and guards), 305.7 (lead based paint), 306.1 (handrails and guardrails-general); Virginia Residential Code §§R311.5.3.1 (riser height), R311.5.4 (landings for stairways), R311.5.6.2 (handrails-continuity), and R312.1 (guards).
The only provision applicable is §305.4 of the Maintenance Code, which provides: "Every stair...shall be maintained in sound condition and good repair." The ninth provision cited merely prohibits violations of the building code.
Section 301.2 of the Maintenance Code, "Responsibility," provides: "The owner of the premises shall maintain the structures...in compliance with these requirements...." The section goes on to discuss duties of occupants. There is no allegation JSB, Nova, or Crawford was an occupant. "Owner" is defined in §202 as: "Any person, agent...having a legal or equitable interest in the property;...or otherwise having control of the property...." As examples of persons having control, the section names guardians, executors, or administrators "of any such person, if ordered to take possession of real property by a court." "Control" is not defined in the Maintenance Code, but in ordinary English usage is defined as "the act or power of controlling; regulation; domination or command." Random Home Dictionary of the English Language (1966). A real estate agent engaged to sell property does not have a legal or equitable interest in it or control it for purposes of the Maintenance Code.
I sustain the demurrers of JSB, Nova, and Crawford to the claim of negligence per se, and I overrule that of FNMA.
Nuisance
This count is only asserted against FNMA, which demurs on the ground that the true object of the action is negligence and where the omissions constituting negligence are the same as those alleged to be a nuisance, the action is one for negligence. Philip Morris, Inc. v. Emerson, 235 Va. 380, 407 S.E.2d 268, 282 (1988). It is beyond both the scope of this letter and my ability to state precisely the distinction between negligence and nuisance. Our Supreme Court has defined the word "nuisance" broadly, but a private nuisance usually arises when a defendant's actions on his property unreasonably interfere with a plaintiff's use or enjoyment of his own property, not when the plaintiff is injured on the defendant's property. City of Newport News v. Hertzler, 216 Va. 587, 592, 221 S.E.2d 146, 150 (1972). To allow a nuisance claim to proceed on these facts would confuse the causes of action. I sustain the demurrer.
An order is attached.
Sincerely yours,
/s/
Everett A. Martin, Jr.
Judge EAM/mls