812 S.E.2d 775
Va.2018Background
- Tenants Alvis Cherry and Ashley Aldridge sued their landlord and management company after repeated HVAC leaks and inadequate drying/remediation allegedly caused visible mold, odor, mushroom growth, drywall damage, and tenant relocation.
- Complaint included five counts: VRLTA/contract (Counts I–II), common-law negligence and negligence per se (Counts III–IV), and fraud (Count V, later nonsuited).
- The trial court initially denied summary judgment, but later concluded Code § 8.01-226.12 created a statutory cause of action and abrogated common-law tort claims for mold exposure; it dismissed Counts III and IV with prejudice and certified an interlocutory appeal.
- The Supreme Court of Virginia reviewed whether Code § 8.01-226.12 implicitly repealed or limited existing common-law causes of action against landlords for mold-related injury.
- The Court held the statute clarifies certain immunities and imposes specific remediation duties but does not, by its text or necessary implication, abrogate other preexisting common-law tort claims; it reversed the dismissal and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Code § 8.01-226.12 abrogates common-law tort claims for mold exposure by tenants | Cherry: statute does not eliminate existing common-law negligence or negligence-per-se claims | Landlord: statute establishes exclusive statutory remedy and extinguishes common-law claims | Held: statute does not implicitly repeal or occupy the field; common-law claims survive except as expressly limited by statute |
| Whether Code § 8.01-226.12 creates new landlord duties re: mold remediation | Cherry: statute supplements common law and coexists with tort duties | Landlord: statute redefines duties and immunities, limiting tort liability | Held: statute creates new remediation obligations (landlord must remediate visible mold per professional standards) and clarifies limited immunities but does not abolish other common-law duties |
| Preservation of objections for appeal (procedural) | Cherry: appended written objections to final order preserved issues | Landlord: counsel needed to request specific rulings at bench per Nusbaum | Held: objections appended to final order sufficed here; Nusbaum distinguishable |
| Whether appellate court should resolve additional statutory-interpretation issues beyond interlocutory dismissal | Cherry: trial court misinterpreted scope and duties under § 8.01-226.12 | Landlord: trial court’s broad view justified interlocutory review | Held: Supreme Court declined to reach other assigned errors because trial court’s precise rulings were unclear and issues were beyond scope of interlocutory appeal |
Key Cases Cited
- Wicks v. City of Charlottesville, 215 Va. 274, 208 S.E.2d 752 (statute read with common law; repeal of common law not inferred absent express intent)
- Mitchem v. Counts, 259 Va. 179, 523 S.E.2d 246 (statutory change to common law limited to what is expressly stated or necessarily implied)
- Boyd v. Commonwealth, 236 Va. 346, 374 S.E.2d 301 (when statute does not cover entire subject, it abrogates common law only to extent directly and irreconcilably opposed)
- Jenkins v. Mehra, 281 Va. 37, 704 S.E.2d 577 (read statutes in conjunction with common law unless change is plainly manifested)
- Isbell v. Commercial Inv. Assocs., 273 Va. 605, 644 S.E.2d 72 (at common law landlord lacked specific remediation duty later created by statute)
- Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (preservation rules; distinguished on facts regarding when additional action was required by counsel)