Although a new Virginia Supreme Court pest-control case does not support a negligence claim against a landlord filed by tenants who say their apartment is infested with bedbugs, a Fairfax Circuit Court says the tenants have stated claims for fraud in the inducement, breach of contract and violation of the Virginia Consumer Protection Act.
Here, with one statutory exception, plaintiff fails to allege that defendants owed or breached any common law duty independent of the parties’ contract. Rather, this action is solely based on the relationship arising out of the parties’ contract, namely, the lease entered into on Dec. 17, 2008. But for the lease, no duty by defendants to plaintiffs exists.
Plaintiffs cite Kaltman v. All American Pest Control Inc., 281 Va. 483 (2011), for the proposition that a claim of negligence exists independently from a breach of contract. The facts of Kaltman differ from those here. In Kaltman, the pest control company negligently used a commercial grade pesticide on plaintiffs’ home, which was a breach of the service contract between the parties. It also was a breach of a statutory duty imposed on the pest control company. Here, there was no separate statutory duty negligently breached which could result in a separate tort claim.
The court sustains the demurrer to the counts for negligence, gross negligence and nuisance.
Plaintiffs also allege that defendants had knowledge that its representations concerning the cleanliness of the apartment were untrue, that defendants acted with the intent to deceive plaintiffs and that defendants willfully concealed the bedbug infestation.
Plaintiffs also allege that defendants “knew or should have known that there was a serious bedbug infestation” at the apartment complex and also in plaintiffs’ apartment. In short, plaintiffs allege defendants made misrepresentations of the condition of the apartment “with a present intention not to perform” their obligations set out under the lease.
The fraud alleged by plaintiffs was perpetrated by defendants before a contract between the parties came into existence. Though perhaps imperfectly alleged in the complaint, plaintiffs have sufficiently set out a claim for fraud in the inducement. The demurrer is overruled as to this count.
The court sustains the demurrer to plaintiffs’ claim for intentional infliction of emotional distress, as plaintiff’s allegations are merely conclusory and they do not rise to the level of intolerance or outrageousness as required.
The court overrules the demurrer to the claim under the Virginia Consumer Protection Act. Plaintiffs assert defendants knew of the bedbug infestation pursuant to the reports filed by other tenants before plaintiffs agreed to lease the apartment. Because the owner and the landlord failed to offer plaintiffs a “clean, hygienic, pest-free apartment” and because alleged concealment of bedbug infestation constitutes a deceptive trade practice under the VCPA, plaintiffs allege, the demurrer is overruled as to this count.
The court likewise overrules the demurrer to the claim for breach of contract. Plaintiffs assert they entered into a written lease with the landlord. The lease specifically stipulates that plaintiffs agree that the apartment is in good and satisfactory condition and repair. The apartment the landlord provided allegedly was not clean, safe, sanitary or free from vermin.
Prior to moving in, plaintiffs performed an inspection of the apartment. They saw no obvious problems, certainly including no bedbugs. Shortly after moving in, bedbugs were encountered – a defect which would not have been visually obvious. The elements for a breach of contract have been adequately pleaded.
Park v. Gates Hudson & Assoc. Inc. (Ney) No. CL 2011-1258, May 24, 2011; Fairfax Cir.Ct.; Jason J. Huh for plaintiffs; Elias G. Saboura-Polkovotsy for defendant Gates Hudson; Thomas C. Palmer Jr. for defendant Maryland Termite. VLW 011-8-122, 9 pp.