Tenant Suit Relies on ‘Eggshell Rule’

An apartment tenant who alleges a brain injury left him particularly susceptible to emotional distress resulting from a maintenance worker’s appearance in his apartment, without prior notice from the property management company, has failed to state claims against the company or the “hired vendor” for violation of his rights under the federal Fair Housing Act or under Virginia tort law.

In arguing that he is entitled to relief, plaintiff relies heavily on his “supersensitive status” and the “eggshell rule,” which provides that a tortfeasors “takes the victim as he finds him.” This time-tested principle of tort law holds true in Virginia but, as in other states, Virginia’s eggshell rule only applies to the element of damages in tort cases. In order for plaintiff to benefit from the rule, he must satisfy all the other elements of the causes of action he asserts. He fails to do so. His claims contain objective elements that are not satisfied by his “supersensitive status” or the allegations of fact in his complaint.

The parties dispute whether plaintiff has a handicap under 42 U.S.C. § 3602(h)(1). At this stage, because plaintiff quit his job, stopped attending classes and postponed taking the bar exam, it appears he has sufficiently alleged a handicap that substantially limits one or more of such person’s major life activities. The court will assume, without deciding, that plaintiff has a handicap for the purposes of the FHA.

Because the hired vendor never entered plaintiff’s apartment without permission after the initial entry, plaintiff’s 24-hour notice “accommodation” was satisfied completely. Plaintiff’s claim for denial of this “accommodation” could be resolved on that basis alone. Also, as the parties make clear, the 24-hour notice requirement is provided by Virginia law, in Va. Code § 55-255.34(A). Because this “accommodation” is a statutory requirement, the remedy for its violation lies in Virginia’s statutory scheme governing contractual relationships between landlords and tenants. Similarly, the one-week delay in maintenance is not a reasonable “accommodation” that affects the use and enjoyment of plaintiff’s apartment under the FHA.

Because the alleged protected activity – the request for an accommodation – is not cognizable under the FHA, there was no protected activity upon which to retaliate, and the retaliation claim must fail.

Plaintiff’s claim for hostile environment harassment based on 24 C.F.R. § 100.600 also fails. His allegations about defendants’ employees laughing at or teasing him were isolated incidents that cannot rise to the level of a hostile environment.

Finally, based on an objective standard, defendants’ acts do not even approach a level of legal outrageousness that would support a claim for intentional or negligent infliction of emotional distress. His remaining Virginia claims for negligence, trespass, breach of an implied covenant of quiet enjoyment, nuisance in fact and invasion of privacy also are dismissed.

Harsy v. Mid-American Apartment Communities Inc. (O’Grady) No. 1:17cv87, June 22, 2017; USDC at Alexandria, Va.; David P. Corrigan for defendant. VLW 017-3-327, 20 pp.