Opinion
CL-2010-11571
08-10-2011
Marilyn Orange, in her Capacity as Administrator of the Estate of Genevieve Orange, deceased v, Berkshire Property Advisors, LLC, et al.
MARCUS D. WILLIAMS
JANE MAPUM ROUSH
LESLIE M. ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L. BRCDE
LORRAINE NORDLUND
BRETT A, KASSABIAN
MICHAEL F. DEVINE
JUDGES
BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A FORTKORT
RICHARD J. JAMBORSKY
JACK B. STEVENS
J. HOWE BROWN
F. BRUCE BACH
M, LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIOGE, JR.
MICHAEL P. MCWEENY
GAYLORD L FINCH, JR.
STANLEY P. KLEIN
RETIRED JUDGES
LETTER OPINION August 10, 2011 William F. Krebs, Esq.
Bean, Kinney & Korman, P.C.
2300 Wilson Boulevard, 7 Floor
Arlington, Virginia 22201
Counsel for Plaintiff Marilyn Orange, in her Capacity as Administrator of the Estate of Genevieve Orange, deceased
Garland B. Nagy, Esq.
Hancock, Daniel, Johnson & Nagle, P.C.
3975 Fair Fudge Drive South, Suite 475
Fairfax, Virginia 22033
Id. The Supreme Court held that no such duty existed in that case. Id. at 137. Liberty argues that Holies is directly on point and the same conclusion should be drawn here.
Counsel for Defendant Liberty Screening Services, Ltd Dear Counsel:
On July 29, 2011, this Court heard oral argument on the Demurrer of Defendant Liberty Screening Services, Ltd. At the conclusion of the hearing, the Court informed the parties that it would take the matter under advisement and that they may file any additional case law or authority to aid the Court in its decision. After reviewing the parties' briefs and in light of the oral arguments made and supplemental authorities provided, the Court is now prepared to rule.
This case arises out of the September 2008 murder and rape of Genevieve Orange ("Ms. Orange"), The Demurrer presents the following question: In the Commonwealth of Virginia, does an independent duty sounding in tort exist where a party's negligent performance under a contract causes physical harm or death to a third party. While there is no case law in Virginia that is precisely on point, the Court finds that a negligence claim may be pled in these circumstances. Because the Plaintiff asserted a claim of "negligent hiring," rather than negligence, the Demurrer must be sustained. However, it is without prejudice and the Plaintiff may amend its complaint to assert a claim of negligence.
I. Background
Plaintiff Marilyn Orange ("Plaintiff") brings the instant wrongful death action as the administratrix of her daughter's estate. On or about September 25, 2008, Ms. Orange was murdered in her rental unit at the Prestwick Apartments, allegedly owned by Defendant BVF-II Prestwick, LLC and managed and/or operated by Berkshire Property Advisors, LLC (collectively, the "Berkshire Defendants"). (Complaint ¶¶ 3-5.) On February 22, 2011, Defendant Mark Lawlor ("Lawlor") was found guilty of the capital murder and rape of Ms. Orange and was later sentenced to death. At the time of the incident, Lawlor was allegedly an employee of the Berkshire Defendants who "functioned in the role of a building superintendent performing overall maintenance and upkeep of the building and individual units comprising the building in which [Ms. Orange] resided" which gave him "access to the building at all hours." Id. at ¶ 7.
Defendant Liberty Services, LTD ("Liberty") allegedly performed the background check on Lawlor prior to his employment with the Berkshire Defendants. Id at ¶¶ 26-27. In her Amended Complaint, Plaintiff alleges that Liberty was "in the business of providing background screening information of employees or prospective employees for employers or potential employers" at the time of the incident. Id. at ¶ 6. Plaintiff alleges that Liberty negligently performed its background check as it concluded and reported that Lawlor had no criminal background when, in fact, he "had an extensive criminal record including, but not limited to, felony convictions for the abduction/kidnaping [sic] of a woman, as well as burglary and unlawful entry of her home, for which he served six years in prison." Id at ¶ 8.
In her Amended Complaint, Plaintiff alleges the following causes of action: (I) Wrongful Death by Intentional Acts (against Lawlor and the Berkshire Defendants); (II) Wrongful Death by Negligence (Negligent Hiring) (against the Berkshire Defendants and Liberty); and (III) Wrongful Death by Negligence (Negligent Retention) (against the Berkshire Defendants).
Liberty demurs as to Count II. Liberty argues that Plaintiff has not alleged and cannot allege a common law duty that Liberty owed Ms. Orange which "arose separate and apart" from Liberty's contractual relationship with the Berkshire Defendants and could give rise to a tort action. See Holies v. Sunrise Terrace, Inc., 257 Va. 131, 136 (1999) ("for [me plaintiff] to maintain a negligence claim against [the defendant], she must identify a common law duty owed by [the defendant] to her, which arose separate and apart from any duty imposed by [the defendant's] contract...") Plaintiff contends that she has set forth a proper basis for Liberty's liability based on its negligence; namely, that Liberty undertook a duty to perform Lawlor's criminal background check, and that, having undertaken that contractual duty, Liberty had a corresponding duty to use reasonable care in performing said investigation.
II. Analysis
A. Legal Standard
"[A] demurrer tests only the sufficiency of factual allegations made in a pleading to determine whether the pleading states a cause of action." Barber v. VistaRMS, Inc., 272 Va. 319, 327 (Va. 2006) (citing Fun v. Virginia Military Institute, 245 Va. 249, 252, 427 S.E. 2d 181, 183, 9 Va. Law Rep. 971 (1993)). "[A] demurrer admits the truth of all material facts properly pleaded. Under this principle, 'the facts admitted are those expressly alleged, those which fairly can be viewed as impliedly alleged, and those which may be fairly and justly inferred from the facts alleged.'" Lentz v, Morris, 236 Va. 78, 80 (Va. 1988) (quoting Rosillo v. Winters, 235 Va. 268, 270, 367 S.E.2d 717, 717 (1988)). "If by proper amendment the plaintiff can state a case upon the facts entitling her to maintain an action at law, the opportunity to make such amendment should be afforded." Strader v. Metropolitan Life Ins. Co., 128 Va. 238, 246 (Va. 1920).
A "plaintiff who seeks to establish actionable negligence must plead the existence of a legal duty, violation of that duty, and proximate causation which results in injury." Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 132 (2000); see also Chesapeake & Potomac Telephone Co. v. Dowdy, 235 Va. 55, 61 (1988). "[I]n certain circumstances the actions of the party breaching the contract can show 'both a breach of the contract terms and a tortious breach of duty'... But the duty tortiously or negligently breached must be a common law duty, not one existing between the parties solely by virtue of the contract.'' Foreign Mission Bd. v. Wade, 242 Va. 234, 241 (1991).
B. Findings
As the Court indicated during the July 29 hearing, the Demurrer must be sustained as to the "negligent luring" cause of action against Liberty as hiring is an essential element and there has been no allegation that Liberty actually placed Lawlor in his position at the Prestwick Apartments. See, e.g., J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 211, 372 S.E.2d 391 (1988) (in an action for negligent hire "the employer is principally liable for negligently placing an unfit person in an employment situation involving an unreasonable risk of harm to others"); Southeast Apts. Mgmt., Inc. v. Jackman, 257 Va. 256, 260 (1999) (the cause of action for negligent luring "is based on the principle that one who conducts an activity through employees is subject to liability for harm resulting from the employer's conduct if the employer is negligent in the hiring of an improper person in work involving an unreasonable risk of harm to others"); Infant C. v. Boy Scouts of Am., Inc., 239 Va. 572 (1990) (affirming trial court's judgment in favor of the national Boy Scouts of America for negligent hiring or retention of a scout leader as it did not select that leader).
Therefore, the issue in this case is whether the Demurrer should be sustained with or without prejudice and the Court must decide whether Plaintiff should be granted leave to amend this cause of action to allege another negligence claim against Liberty. The resolution of this issue rests on whether an injured third party might have a cause of action sounding in tort against a party who negligently performed a contractual duty. In paragraphs 26, 27, and 29 of the Amended Complaint, Plaintiff alleges the following:
Prestwick and/or Berkshire engaged Defendant Liberty to do a pre-employment background check on Lawlor. Defendant Liberty knew or should have known that the purpose of providing background checks as to prior criminal history and drug use on employees of apartment complexes who would have access to tenants' apartments is to identify employees with propensities toward violence and who might be dangerous to others, especially tenants. Accordingly, Liberty owed the Decedent a duty to exercise reasonable care in performing its background check of Lawlor... Liberty negligently failed to properly check the background of Lawlor, and negligently reported that Lawlor had not criminal history or drug history. Both were incorrect Information was accessible and available to show that Lawlor had a criminal history and a substance abuse history... The Defendants were on notice that Lawlor would have access to tenants' apartments and that it was foreseeable, in the context of his criminal background, that he posed a danger to the lives and security of the tenants in the Decedent's building.The Court finds that the factual circumstances alleged in the Amended Complaint could give rise to a claim for negligence under Virginia law and, therefore, sustains the Demurrer without prejudice.
Liberty's brief focuses, primarily, on whether a "special relationship" existed between Liberty and Ms, Orange which could impose a duty of care on Liberty. In Holies v. Sunrise Terrace, the Supreme Court of Virginia addressed a case in which the defendant contracted with Fairfax County to "ensure the physical security of the residents" amongst other duties. 257 Va. at 133-34. The decedent allowed a third party to enter her apartment and was subsequently raped and murdered. Id The Supreme Court emphasized that for the decedent "to maintain a negligence claim against [the defendant], she must identify a common law duty owed by [the defendant] to her, which arose separate and apart from any duty imposed by [defendant's] contract with Fairfax County." Id. at 136. Moreover, "[b]efore any duty of care can arise to control the conduct of third persons, there must be a special relationship between the defendant and either the plaintiff or the third person."
The Court notes that the Supreme Court of Virginia has recognized that liability for negligence may be based on assumption of duty even where no special relationship exists. See, e.g., Kellerman v. McDonough, 278 Va. 478, 489, 684 S.E.2d 786, 791 (2009) (finding "no reason to expand our jurisprudence regarding special relationships to include an adult who agrees to supervise and provide care to a minor * but holding that the "duties that do exist in this case are a general duty of ordinary care and an assumed duty")
However, in this case, Plaintiff argues that her claims are not dependent on the existence of a special relationship. (Ptf.'s Brief in Opp., 5.) Plaintiff emphasizes that she has not alleged that Liberty owed Ms. Orange any duty to control or oversee Lawlor or to take affirmative steps to protect her from or warn her of the risk Lawlor posed. Id. at 3. Rather, Plaintiff argues that, once Liberty "undertook to provide a security background screening on Lawlor," it "owed those tenants a duty to use reasonable care in preparing the report so as to identify prospective employees who may present a danger to those tenants..." For these reasons, the Court does not reach the issue of whether Plaintiff could amend her complaint to include duty based on a special relationship as any future negligence claim would purportedly be based on assumption of duty.
Section 323 of the Restatement (Second) of Torts provides that
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.
See also Didato v. Strehler, 262 Va. 617, 629 (2001) (defendant pediatricians "assumed the duty to convey to the plaintiffs the correct results of their daughter's test, which indicated that she carried the sickle cell trait"); Kellerman v. McDonough, 278 Va. 478, 488, 684 S.E.2d 786, 790-91 (holding that the defendant voluntarily assumed a duty to the decedent by agreeing not to permit her to be in a car with any young, male drivers and promising the decedent's parents that she would be taken care of). Similarly, section 113 of the Second Edition of American Jurisprudence states that
.. .those who undertake an activity pursuant to a contract have both a self-imposed contractual duty and a "social" duty imposed by the law to act without negligence, and this social duty extends to persons who, although strangers to the contract, are within the foreseeable orbit of risk of harm... Where one undertakes by contract to perform a certain service and is chargeable with the duty of performing the work in a reasonably proper and efficient manner, and injury occurs to a blameless person, the injured person has a right of action directly against the offending contractor which is not based on any contractual obligation, but rather on the failure of such contractor to exercise due care in the performance of his or her assumed obligation.57A Am Jur 2d Negligence § 115.
Virginia courts have recognized an independent duty sounding in tort where a party's negligent performance under a contract caused physical harm or death to a third party. For example, in the case of Boland v. Rivanna Partners, et al., 69 Va. Cir. 308 (Charlottesville 2005), the plaintiff customer slipped and fell in the parking area of a shopping plaza due to the alleged negligence of the independent contractor who entered into an agreement with the owner and operator of the plaza to plow snow and ice from that same area. The Circuit Court held that the independent contractor "retained an independent duty to use reasonable care because the act of clearing the parking lot was not just for the benefit of [the owner] but also for the benefit of Plaintiff and others like her. It was clearly foreseeable that people other than [the owner] would be affected by the [independent contractor's] actions." Id. at *311 (quoting Justice Cardozo's opinion in Glazner v. Shepard, 233 NY. 236, 239, 135 N.E. 275, 276 (N.Y. 1922) ("[i]t is ancient learning that one who assumes to act, even though gratuitously may thereby become subject to the duty of acting carefully, if he acts at all.")) The Circuit Court found that thus duty was "separate from any contractual duties due to the owner of the property." Id.
Similarly, in Gonella v. Lumbermans Mutual Casualty Co., et al., 64 Va. Cir. 229 (Fairfax 2004), the plaintiffs brought a negligence action against a roofing company who negligently performed repairs on their home resulting in a persistent mold problem. The Circuit Court determined that, when the company performed the repair work, it had a duty to "perform such work without creating an unreasonably dangerous condition on Plaintiffs' property... This duty exists apart from expectations associated with the Plaintiffs' contract with [the company]." Id. at * 235. The Circuit Court reasoned that "although this court fully agrees with the rationale underlying the Supreme Court of Virginia's decisions holding that breach of contract cases should not inevitably lead to litigation also sounding in tort, the court declines to extend this rationale to preclude a personal injury claim by someone claiming serious injury arising from a contracting party's creation of an unreasonably dangerous condition." Id. Notably, the Gonella case recognizes an independent duty to perform a contractual duty even where the parties are in privity of contract. Cf. Va. Code Ann. § 8.01-223 ("where recovery of damages for injury to person, including death, or to property resulting from negligence is sought, lack of privity between the parties shall be no defense.")
Other jurisdictions have also held that a party to a contract assumed a duty to perform their work with due care and could be liable to a third party who was injured by negligent performance that resulted in a hazard. For example, in Vick v. H.S.I. Management, Inc., et al., 507 So. 2d 433 (1987), the plaintiff brought a personal injury action against the owners of the townhouse community where she lived as well as the company who was under contract with the owners to provide outdoor lighting on the property when plaintiff fell down some poorly lit steps. The Supreme Court of Alabama held that it was "foreseeable that without the outdoor lights, a third party, such as [plaintiff] could be injured while attempting to use the common grounds on the premises." Id. at "436. Therefore, the trial court erred in granting the company summary judgment as the company undertook a contract "for the benefit of the tenants" and assumed a duty to those tenants. Id. at *435. Another example is the case of Wise v. Complete Staffing Services, Inc., 56 S.W.3d 900, *903-904 (2001), in which the Court of Appeals of Texas determined that summary judgment in favor of the company who undertook to perform a criminal background check of a temporary worker who injured the plaintiff was not appropriate as the investigation was limited to a single county and a genuine issue of material fact existed as to whether that check was inadequate and negligently performed.
In summary, the Court finds that the Boland and Gonella cases as well as case law from other jurisdictions demonstrate that Plaintiff should be given leave to amend its pleadings to allege a cause of action for negligence against Liberty based on its assumption of duty even though it was contractually bound only to the Berkshire Defendants. The Court makes no ruling as to whether an amended negligence claim would survive a subsequent demurrer.
Accordingly, for the reasons stated above, Defendant Liberty Screening Services, Ltd.'s Demurrer is SUSTAINED WITHOUT PREJUDICE and Plaintiff has 21 days to file an amended complaint. Any subsequent demurrers must also be heard by this Court. An Order in accordance with this Letter Opinion shall issue.
Sincerely, Randy I. Bellows
Circuit Court Judge
ORDER
FOR THE REASONS stated in the Letter Opinion issued today, the Defendant Liberty Screening Services Ltd.'s Demurrer is SUSTAINED WITHOUT PREJUDICE. Plaintiff has 21 days from entry of this Order to file an amended complaint. Defendant Liberty Screening Services, Ltd. has 21 days from the date of filing of the amended complaint to file a responsive pleading. Any subsequent demurrer must be heard by this Court.
SO ORDERED, this 10 Day of August, 2011
August 10, 2011
Randy I. Bellows
Circuit Court Judge
ENDORSEMENT OF THIS ORDER BY COUNSEL OF RECORD FOR THE
PARTIES IS WAIVED IN THE DISCRETION OF THE COURT PURSUANT TO
RULE 1:13 OF THE SUPREME COURT OF VIRGINIA
_______________________________________________ 1 Traditional examples of "special relationships" that give rise to duties of care as a matter of law include "common carrier and passenger, business proprietor and invitee, innkeeper and guest, and employer and employee." Yuzefovsky v. St. John's Wood Apts.,261Va. 97, 108, 540 S.E.2d 134, 140(2001). The Supreme Court of Virginia has also imposed liability pursuant to a de facto special relationship but has cautioned that it has "rarely found the circumstances of the cases under review to warrant the application of [the special relationship] exceptions." Id at 106; see also Bosworth v, Vornado Realty L.P., et al., 2010 Va. Cir. LEXIS 206, *4-5 (2010) (discussing Burdettte v. Marks, 244 Va. 309, 312-13 (1992) (duty existed where an on-duty and uniformed deputy sheriff witnessed two attacks and did nothing to assist) and Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 134 (2000) (facility had a duty to protect one patient from the sexual assault of another patient)). While the Supreme Court of Virginia has recognized that other special relationships may exist, any such relationship must have the "essential characteristic... that it provides a right of protection to a plaintiff by a defendant from the criminal acts of third persons that can be reasonably foreseen or anticipated." Holies, 257 Va. at 136.