Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Negligence claims go forward in mold case

Negligence claims go forward in mold case

Where plaintiff lessee sued a lessor and the lessor’s management company for claims arising from mold in her apartment and the building’s common areas, claims against the management company are dismissed because the company was not in privity of contract with plaintiff. Common law negligence and negligence per se claims against the landlord can go forward.


Plaintiff leased an apartment from Liberty Pointe. Woda is the managing agent. Plaintiff alleges that she discovered damp conditions in a common hallway leading to her apartment and in the apartment itself. She told defendants about the problem.

Some remedial action was taken but mold remained, causing plaintiff health problems. After eight months plaintiff sued Liberty and Woda.

Privity of contract

Woda claims it cannot be held liable for any claims because it was not a party to the lease contract between Liberty and plaintiff. “The Court must examine whether Plaintiff and Woda have privity of contract. …

“Plaintiff and Woda do not have privily of contract because the lease incorporated into Plaintiff’s complaint by grant of oyer does not assign Woda any maintenance responsibility. The Court finds Woda is merely an agent of Liberty and, therefore, cannot be subjected to liability claims for this lease.

“The court grants Woda’s Demurrer on count II for breach of contract and Woda is dismissed as a defendant.”


“Liberty argues it could not have been negligent because it had no legal duty to maintain or repair the leased premises once Plaintiff took possession. The court disagrees. …

“Liberty relies on Isbell v. Commercial Inv. Assocs., 273 Va. 605, 611 (2007), as the controlling case to determine a landlord’s liability for common law negligence for interior conditions after tenant takes possession.

“In Isbell, the court held common law was not abrogated by the [Virginia Landlord Tenant Act], as related to this legal concept. …However, Isbell was a case involving obviously worn out and slippery interior stairs which the Court views as distinguishable from harmful mold spores that are not typically visible to the naked eyed.

“The Court finds common law negligence is, instead, controlled by the decision in Cherry v. Lawson Realty Corporation, 295 Va. 369, 377 (2018). In Cherry, complainant alleged the landlord took ineffectual steps to remediate an unsafe mold problem in the apartment. The court in Cherry analyzed the Isbell decision and found an exception to the broad proposition of landlord common law responsibility to tenants in relation to mold by applying § 8.01-226.12 [of the VLTA]. …

“Accordingly, the Cherry court held the trial court erred by dismissing the common law negligence claim. …

“The Virginia Supreme Court concluded that a statutory change may abrogate common law tort liability to the extent it is expressed in the statute, as it does in Code§ 8.01-226.12. … The Court determined the legislative intent of Code§ 8.01-226.12, clarified immunities and created new obligations for the landlord.

“Although the VLTA doesn’t generally abrogate common law, this statute specifically established a corresponding common law duty upon a landlord in relation to mold. …

“The Court recognizes a duty to perform with reasonable care any repairs undertaken. … Plaintiff asserts Liberty wiped down the mold-covered surfaces in her home with an alcohol/water solution. Liberty’s repair did not eliminate the mold; thus, Plaintiff sufficiently alleged that Liberty failed to follow the mold remediation requirements imposed by Code§ 55.1-1220(5).

“The Court further recognizes a duty to maintain safe and habitable conditions on the premises outside of Plaintiffs exclusive control. … Plaintiff alleges a cause of action of negligence for Defendant’s failure to properly maintain the common area outside of Plaintiff’s apartment.

“Plaintiff states the exterior hallway leading to her apartment maintained a strong odor of mold from faulty stormwater drains and an uncaulked hallway entry door which, collectively, establishes the likelihood of the presence of invisible mold.

“Plaintiff also contends fungal spores are naturally designed to become easily aerosolized by air movement and air ventilation systems. Accordingly, Plaintiff has stated a cause of action for common law negligence sufficient to survive the Demurrer, so the Court denies the Demurrer for common law negligence in count III.”

Negligence per se

“Liberty alleges the negligence per se claim must be dismissed because it has no common law duty to the plaintiff. The Court disagrees as a matter of law. In Virginia, an unexcused violation of a statute, ordinance, or administrative regulation may constitute negligence per se. …

“The doctrine of negligence per se applies when, (1) the plaintiff is a member of a class of persons that the statute, ordinance, or administrative regulation intended to protect; (2) the harm that occurred was the same type of harm which the statute, ordinance, or administrative regulation was designed to protect against; and (3) the violation also was the proximate cause of the accident. …

“Thus, a person relying on negligence per se is not required to establish common law negligence or a common law duty. …

Plaintiff is a Virginia tenant within the class of persons the statute is intended to protect. The harm she alleges from water accumulation and inadequate drainage resulting in mold is the type of harm the housing code was designed to protect. She also alleges the mold is what lead to her health and property damages.

“Therefore, Plaintiff has stated a cause of action for negligence per se sufficient to survive the Demurrer.”

Stith v. Woda Management, et al., Case No. CL-20-1007, June 28, 2022, City of Petersburg Circuit Court (Teefey Jr.). VLW 022-8-045, 7 pp.

VLW 022-8-045