Virginia Lawyers Weekly VA Lawyers Weekly
Where plaintiff claims defendant landlord did not remediate mold in her rental house from a leaky air conditioner that caused health problems for her and her children, recent Virginia Supreme Court precedent requires that defendant’s demurrers to the claims are overruled.
On point precedent
“It is not often that a case brought before this court is so similar to recent Virginia Supreme Court precedent that the logic of the Supreme Court can almost be restated without change and fit the fact pattern before this court. However, that is not to say that this never happens, and this case is proof of that fact.
In Cherry v. Lawson [295 Va. 369 (2018)], the Supreme Court of Virginia was faced with a substantially similar question that now faces this court.
“In that case, Plaintiffs were renters in an apartment complex where the air conditioning unit had clogged, leading to water damage to the apartment, and, eventually, visible signs of mold. The Plaintiff alleged that Defendants’ remedial actions were insufficient. Plaintiffs thus sought to sue Defendants and proceed with claims both under tort and contract law.
“At trial, the court dismissed Plaintiffs tort claims, stating ‘… with the enactment of … Code Section 8.01-226.12 [the General Assembly] intended to abrogate the application of all common law claims for personal injury involving landlord/tenant relationships.’
“Plaintiffs filed an interlocutory appeal and the Supreme Court of Virginia reversed the ruling of the trial court. In their decision, the Supreme Court took a different position on the relationship between Virginia Code Section 8.01-226.12 (VRTLA) and the common law, stating that the two ‘… operate[] in conjunction … .’
“Additionally, the court restated its holding in Herndon v. Saint Mary’s Hospital [226 Va. 472, 476 (2003)], which states,’… a statutory provision will not be held to change the common law unless the legislative intent to do so is plainly manifested.’
“The court continued, ‘We perceive no intent by the General Assembly to abrogate common law tort liability beyond narrow confines of what is plainly expressed in Code [Section] 8.01-226.12.’
“In the case at bar, we have a substantially similar fact pattern with the only major difference being that this incident takes place in a single-family dwelling while that case took place in an apartment complex.
“Other than this discrepancy, the facts of a broken air conditioning unit leading to an allegation of mold on the premises followed by an allegation of substandard remediation leading to ongoing health concerns are almost identical.
“Thus, the court does not see how, in light of the recent precedent set out by the Supreme Court on this very issue, it could sustain Defendant’s Demurrer as to counts three and four of the Complaint. The court withholds comment on Defendant’s Demurrer as to count five of the Complaint and simply recognizes Defendant’s withdrawal of the Demurrer as to this count.”
Hall v. Aacorn Properties, LLC, Case No.: CL21-481, Jan. 10, 2023. City of Hopewell Circuit Court (Saunders Jr.). Dale W. Pittman, Harvey J. Volzer, David L. Campbell for the parties. VLW 023-8-001, 4 pp.
