Mold statute does not bar common law tort claims

Although the General Assembly a decade ago codified the law of mold claims in rental homes, the law does not bar tenants from using common law negligence theories to sue over mold conditions, the Supreme Court of Virginia says.

In a May 3 ruling, the high court allowed claims of negligence and negligence per se to remain in a Newport News apartment mold case. The tenants claimed their apartment was so damp, mushrooms grew on the carpet.

The justices also appeared to lower a barrier for lawyers trying to preserve objections to a trial court ruling. Objections on a final order would suffice, the court said.

The decision is Cherry v. Lawson Realty Corp. (VLW 018-6-033).

Mushrooms

Alvis Cherry claimed he suffered damages from mold exposure in his Newport News apartment related to a faulty HVAC unit. He said that, about a month after he moved in, a line in the HVAC unit clogged and soaked the HVAC closet wall and the living room carpet with water.

Cherry said the landlord fixed the clog, but ignored the wet carpet. More clogs led to more leaks, but all the landlord did was use fans and a blower, the suit claimed. The HVAC closet became covered in mold. The carpet started to smell bad and then produced mushrooms.

Cherry said the landlord attempted remediation by removing bits of wall board, trim and other building materials, but the repairs were ineffective. Cherry and the other tenant in the apartment moved out.

Judge kicks negligence claims

Represented by David S. Bailey of Glen Allen, Cherry sued his landlord and a real estate management company. He cited the Virginia Residential Landlord and Tenant Act, but he also added two counts based on common law negligence and per se negligence.

The defendants, represented by Herbert V. Kelly Jr. of Newport News, denied the allegations and tried to bar the common law claims. Circuit Judge Timothy S. Fisher agreed and dismissed the negligence counts.

Fisher concluded the Assembly’s 2008 enactment of Va. Code § 8.01-226.12 was intended to abrogate the application of all personal injury claims involving landlord-tenant relationships. He said the comprehensive statute established a direct cause of action for failure to heed professional standards in mold remediation.

After making his decision, Fisher certified the issue for an interlocutory appeal.

Common law survived statute

On appeal, the Supreme Court endorsed the constancy of common law and politely announced a different conclusion.

“We appreciate the trial court’s thoughtful and thorough analysis of a novel question of law. Disagreeing with its legal conclusions, however, we will reverse and remand for further proceedings,” wrote Justice Stephen R. McCullough.

Intent to change the common law must be readily apparent, the court said. The justices said the mold statute merely clarified immunities and created new obligations for the landlord.

“We perceive no intent by the General Assembly to abrogate common law tort liability or immunity beyond the narrow confines of what is plainly expressed in Code § 8.01-226.12,” the court said. “The text of Code § 8.01-226.12 does not purport to occupy the field or to abrogate any common law tort actions seeking recovery based on mold exposure.”

Objections to the order

The Cherry case also offered a bit of reassurance for lawyers worried their effort to preserve appeal issues might fall short.

The landlord asked the Supreme Court to reject the common law issue because Cherry’s counsel had merely noted objections on a document appended to Fisher’s order dismissing the negligence counts.

Citing the 2007 Supreme Court ruling in Nusbaum v. Berlin, the landlord contended Cherry was required to expressly ask the court for a ruling in accord with the objections. The Supreme Court disagreed, finding Nusbaum distinguishable. In a footnote, the court said preservation of an issue for review is a “context specific exercise.”

“In this instance, noting objections on the final order sufficed to preserve the questions of statutory interpretation for our review,” McCullough wrote. Nusbaum was distinguishable, the court said, because the lawyer in that case stated more than once that he was not asking the trial court to reconsider any ruling.

Win for tenants

The Supreme Court declined to address two of Cherry’s assignments of error as premature.

Cherry said Fisher had improperly limited the scope of the landlord’s duty at issue and had declared that mold in a tenant unit was not considered a dangerous condition.

The Supreme Court said it was far from clear that Fisher had reached such conclusions and noted the case was yet to be tried. The two issues “ask us to reach beyond the limited scope of the interlocutory appeal to address issues that the trial court has not resolved,” the court said.

Bailey, a longtime environmental lawyer who handles only mold cases now, welcomed the decision on common law claims. It opens doors for lawyers throughout the state in the growing field of mold litigation, he said.

The court “left me with all my common law claims – unchanged – and all my statutory claims,” he said.

The Virginia mold statute is one of the strongest in the country for tenants, Bailey said.

“Basically, the General Assembly wanted to give tenants – in public or private housing – some assurance of safe and healthy living conditions,” he said.

Kelly could not be reached for comment.

Virginia REALTORS® filed an amicus brief in the case, “encouraging the Court to uphold the protections provided to property managers and property owners,” according to a blog post by the association.

The association’s general counsel could not be reached for comment.

Updated May 10 to clarify that Kelly could not be reached.