Kaltman v. ALL AMERICAN PEST CONTROL, INC.
706 S.E.2d 864
| Va. | 2011Background
- In 1996, Kaltmans hired AAPC to treat their home for pests under a service agreement.
- On Oct 23, 2006, Harrison, then unlicensed, treated the Kaltmans' home with Orthene after treating a commercial site.
- Harrison allegedly did not thoroughly clean equipment and applied an Orthene dilution as a fan spray to baseboards, including untreated concrete surfaces.
- Odor from the treatment was overwhelming; VDACS investigated, and Harrison admitted misapplication and falsified the work order.
- Laboratory tests showed acephate in the home; Orthene PCO Pellets are not licensed for residential use and pose health risks; homeowners suffered uninhabitability, property damage, and costs.
- Plaintiffs filed separate complaints for negligence, willful and wanton conduct, and negligence per se, later consolidated; circuit court sustained demurrers to several counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does negligence sound in tort despite contract? | Kaltmans claim independent common-law duties breached. | Duty arose from contract; no tort claim separate from contract. | Counts One–Three sound in tort; reversal. |
| Was there willful and wanton conduct by Harrison or AAPC? | Harrison’s reckless actions and falsified orders show willful conduct; AAPC ratified. | No conscious disregard; acts were inadvertent oversights. | Counts Four–Five demurrers upheld; no willful/wanton liability. |
| Do negligence-per-se claims survive under pesticide statutes? | Code § 3.2-3939(B) imposes public-safety duty; violation constitutes negligence per se. | Violations amount to contract breach; no independent duty. | Counts Ten–Eleven survive; demurrers reversed. |
Key Cases Cited
- Richmond Metro. Auth. v. McDevitt St. Bovis, Inc., 256 Va. 553 (1998) (duty source determines contract vs. tort; misrepresentations tied to contract cannot sustain tort claims)
- Dunn Constr. Co. v. Cloney, 278 Va. 260 (2009) (single act may support contract and tort but the duty may arise from contract)
- Abi-Najm v. Concord Condominium, LLC, 280 Va. 350 (2010) (VCPA-like claims show independent statutory duties; fraud claims may lie when pre-contract harms arise)
- McClanahan v. California Spray-Chemical Corp., 194 Va. 842 (1953) (Insecticide statute imposes public-safety duty; violation constitutes negligence per se)
- Filak v. George, 267 Va. 612 (2004) (tort vs. contract distinction; protective duties under law)