delivered the opinion of the Court.
*101 In this appeal, we consider whether the trial court properly sustained a demurrer to a second amended motion for judgment filed by a tenant against his landlord alleging fraud, negligent failure to warn, and negligent failure to protect concerning the danger of a criminal assault on the tenant by a third party which occurred on the landlord’s property.
Because the procedural posture of this case controls our consideration of the factual allegations of the pleading at issue, we initially relate the proceedings in the trial court that preceded the trial court’s sustaining the demurrer to that pleading. On April 26, 1998, Alex Yuzefovsky, a tenant of St. John’s Wood Apartments, filed a motion for judgment against St. John’s Wood Apartments and the alleged owner of that development, SJW, Limited Partnership. Under various theories, Yuzefovsky alleged that these defendants were liable for injuries he sustained on the property of St. John’s Wood Apartments as a result of a criminal assault by a third party. Prior to serving the original motion for judgment on these defendants, Yuzefovsky filed an amended motion for judgment adding as additional defendants General Services Corporation and GSC Security. This pleading alleged that the former had an ownership interest in St. John’s Wood Apartments and the latter provided security services to the other defendants on the premises of these apartments. This pleading included additional theories of liability and increased ad damnum claims.
After the first amended motion for judgment was served on the defendants, they filed a joint plea in bar of the statute of limitations with respect to a number of the claims asserted by Yuzefovsky and a demurrer to all of them. Thereafter, the trial court sustained the plea in bar to one claim, sustained the demurrer to the remaining claims except for a claim of breach of contract, and granted Yuzefovsky leave to file a second amended motion for judgment. On July 7, 1999, Yuzefovsky filed his second amended motion for judgment reasserting each of the claims to which the trial court had previously sustained the defendants’ demurrer without material change in the factual allegations. This pleading, however, did not reassert the claim to which the plea in bar had been sustained or the contract claim to which the demurrer had been overruled. The defendants filed another demurrer to all the claims in the second amended motion for judgment, the trial court sustained this demurrer, and dismissed the case with prejudice.
*102
Our consideration of the factual allegations in this case is governed by the well-settled principle that when a circuit court sustains a demurrer to an amended motion for judgment which does not incorporate or refer to any of the allegations that were set forth in a prior motion for judgment, we will consider only the allegations contained in the amended pleading to which the demurrer was sustained.
Bell Atlantic-Virginia, Inc.
v.
Arlington County,
In December 1994, Yuzefovsky moved to Richmond to begin new employment. His employer initially provided him with temporary housing while he looked for permanent housing. In conducting his housing search, Yuzefovsky was particularly concerned with the issue of his personal security, desiring to find housing in a safe and crime-free environment.
In discussing his interest in leasing an apartment in the development with employees of St. John’s Wood, Yuzefovsky indicated that he was unfamiliar with the area where the development was located and expressed his concern for security. He specifically asked the employees if the development “was safe and whether there had been crime on and/or about the property.” The employees told Yuzefovsky “that there had been no crimes at [the property of] St. John’s Wood, and that it was safe.” They further advised Yuzefovsky that “police officers lived in the development and that police vehicles patrolled the property.”
*103 Based upon these assurances, Yuzefovsky became a tenant of St. John’s Wood, leasing an apartment in the development and taking possession of it in February 1995. On November 21, 1996, Yuzefovsky was confronted by an assailant armed with a sawed-off shotgun in a walkway on the property of St. John’s Wood and immediately adjacent to his apartment. The assailant shot Yuzefovsky in the right shoulder, took his car keys, and fled in Yuzefovsky’s vehicle. The assailant was subsequently arrested and convicted of crimes related to this incident.
Yuzefovsky alleges that the employees of St. John’s Wood knew that their representations that there had been no crimes committed on or in the vicinity of the development, that the development was safe, that police officers lived there, and that police vehicles patrolled the development were false. He further alleges that in 1994, 656 crimes, including 113 crimes against persons, were reported to the Richmond City Police as having occurred in the vicinity of the development and that criminal activity in that vicinity remained at that level for the next two calendar years. Yuzefovsky further alleges that during the three-year period from November 21, 1993 to November 21, 1996, there were 257 crimes reported to Richmond City Police that occurred on the development. 1 These crimes included “5 robberies . . ., 8 aggravated assaults, 13 simple assaults, 37 residential burglaries, 34 larcenies, 97 larcenies from the auto[mobile], 2 abductions, 30 property crimes and 26 motor vehicles thefts.”
The legal theories of liability asserted by Yuzefovsky in his second amended motion for judgment and for each of which he sought $15,000,000 for compensatory damages, in summary, are:
(1) Fraud. Yuzefovsky alleges that the misrepresentations by employees of St. John’s Wood that the development was safe and crime-free and that police lived in and patrolled the development “were negligent, reckless and/or intentional,” and that he relied on these misrepresentations in leasing an apartment at the development. Yuzefovsky alleges that the injuries he sustained in the subsequent criminal assault were a direct and proximate result of these misrepresentations.
*104 (2) Duty to Warn. Yuzefovsky alleges that under the circumstances of the previous criminal conduct that was known by St. John’s Wood, they owed a duty to warn him that “violent crime had taken place at [the development],” and that the negligent failure to exercise that duty was a proximate cause of the injuries he sustained in the subsequent criminal assault.
(3) Duty to Protect. Yuzefovsky alleges that St. John’s Wood, “and in particular GSC Security,” owed a duty to protect him against unsafe conditions or criminal activities of which they knew or should have known. He alleges that St. John’s Wood had undertaken the duty to protect their tenants through the use of a security service, and that having done so, St. John’s Wood and this security service 2 were negligent in exercising that duty by deploying inadequate numbers of security guards, using “[i]mproper patrol techniques,” providing “[inadequate security equipment,” and in failing to properly train, select, and compensate their security guards. Yuzefovsky alleges that the breach of this duty was a proximate cause of the injuries he sustained in the subsequent criminal assault.
(4) Special Relationship. Yuzefovsky alleges that “[a]s a tenant of [St. John’s Wood, they] had a special relationship with [Yuzefovsky]. That [this] special relationship created a duty to exercise reasonable care to protect [Yuzefovsky] against criminal acts of third persons and to warn him of the danger of such attacks, since the danger of such attacks [was] known and/or reasonably foreseeable to [St. John’s Wood].” Yuzefovsky alleges that the breach of the duties created by this special relationship was a proximate cause of the injuries he sustained in the subsequent criminal assault.
In a memorandum in support of the defendants’ demurrer to the second amended motion for judgment, they contended that the allegations of fraud were based upon vague and indefinite statements of opinion and not fact, and that Yuzefovsky was not justified in relying on these statements. They further contended that Yuzefovsky had a duty to undertake his own investigation of the area rather than relying on the statements made by employees of St. John’s Wood.
As to the remaining claims of the second amended motion for judgment, the defendants contended that the liability asserted by each claim was founded upon the duty of St. John’s Wood to warn and/or *105 protect tenants against criminal assaults by unknown third parties. The defendants contended that there is no liability on a landlord in such circumstances because, as a matter of law, there is no special relationship between landlord and tenant that would give rise to such duties. They further contended that even if there were a special relationship in this case, there was no duty to warn or to protect because the criminal act of the third party was not reasonably foreseeable.
The trial court sustained the defendants’ demurrer to the fraud claim ruling that “[a]ny statement by [employees of St. John’s Wood] that the area would be safe from crime is opinion, not fact and not actionable.” The trial court further ruled that even if such statements were actionable as fraud, the allegations of fact failed to establish a causal nexus between those statements and the criminal act that caused Yuzefovsky’s injuries.
As to the various theories of negligence, the trial court ruled that Virginia does not recognize a special relationship between landlord and tenant giving rise to a duty to warn or to protect. Thus, the trial court, relying primarily upon
Wright v. Webb,
DISCUSSION
Yuzefovsky assigns three errors to the trial court’s judgment sustaining the demurrer. In his first assignment of error, Yuzefovsky asserts that the trial court erred in ruling, as a matter of law, that a landlord’s knowledge of prior criminal assaults on or near the landlord’s property cannot give rise to a duty to take reasonable measures to warn and/or protect a tenant from reasonably foreseeable similar assaults. He asserts in his second assignment of error that the trial court erred in finding that the alleged false statements of St. John’s Wood were mere opinions and, therefore, not actionable. He asserts in his third assignment of error that the trial court erred in ruling, as a matter of law, that the misrepresentations by St. John’s Wood were not “a proximate cause” of Yuzefovsky’s injuries. We will address each of these assignments of error seriatim.
*106 Negligence Issues
As we noted above, in ruling upon a demurrer the issue before the trial court in this case, and before this Court on appeal, is whether the facts alleged in Yuzefovsky’s second amended motion for judgment, along with the facts that may be reasonably and fairly implied by or inferred therefrom, are sufficient to support the causes of action under the theories of liability to which those facts relate. With respect to claims of negligence, the factual allegations must establish the existence of a duty of care. Whether such duty exists is “a pure question of law.”
Burns
v.
Johnson,
The parties do not dispute the law applicable to the various legal assertions contained in Yuzefovsky’s second amended motion for judgment. Rather, they dispute whether the factual allegations made therein sufficiently state the necessary elements of a cause of action against an owner or occupier of land, for injuries caused by the criminal act of a third party. The question of when and under what circumstances an owner or occupier of land will be required either to warn his invitees or tenants of, or protect them against, harm from the criminal act of a third party is always fact specific and, thus, not amenable to a bright-line rule for resolution. In that regard, while the general rule that no such duty is owed is unquestionably the law of this Commonwealth,
Gupton
v.
Quicke,
It is worthy of note, however, that while recognizing these exceptions, we have rarely found the circumstances of the cases under review to warrant the application of these exceptions.
Compare, e.g., Burns,
First, the plaintiff must establish that there is a special relationship, either between the plaintiff and the defendant or between the third party criminal actor and the defendant.
3
See, e.g., Holles v. Sunrise Terrance, Inc.,
Initially, we observe that, with regard to Yuzefovsky’s negligence claims, the separate counts in the second amended motion for judgment incorporate by reference “all other allegations” in that pleading. One such allegation is that Yuzefovsky “was a business invitee and tenant” of St. John’s Wood. In a separate count entitled “Special Relationship,” Yuzefovsky further alleges that because he was their tenant that a special relationship existed between himself and St. John’s Wood. On appeal, Yuzefovsky does not rely on the status of *108 business invitee to advance his assertions that the trial court erred in sustaining the demurrer to his pleading. Rather, his assertions are made in the context of the relationship between landlord and tenant and, accordingly, we will review the allegations in the second amended motion for judgment, including the count entitled “Special Relationship,” in that context.
In prior cases, we have recognized that the necessary special relationships that may create a duty of care include those of common carrier and passenger, business proprietor and invitee, innkeeper and guest, and employer and employee.
A.H. v. Rockingham Publishing Co.,
Rather, we have stressed that while a landlord owes a duty to his tenant to maintain in a reasonably safe condition those areas over which he has control, the landlord is not an insurer of his tenant’s safety.
Gulf Reston,
Assuming, without deciding, that the facts and circumstances as alleged in the second amended motion for judgment estab *109 ish a special relationship between St. John’s Wood and Yuzefovsky, we must also consider whether those facts and circumstances are also sufficient to establish that St. John’s Wood had a duty of care to warn and/or protect Yuzefovsky against the danger of harm from the criminal conduct of a third party. We are of opinion that neither duty is established on the facts and circumstances alleged in this case.
Although in our prior landlord-tenant cases we found no special relationship and, thus, we did not reach the issue of what circumstances would give rise to a duty of care on the part of the landlord, in
Wright,
we observed that “[a] business invitor owes the same duty of reasonable care to his invitee that a landlord owes to his tenant.”
There are no express allegations in Yuzefovsky’s second amended motion for judgment that St. John’s Wood knew that criminal assaults against persons were occurring, or were about to occur, on the premises that would indicate
an imminent probability of harm
to Yuzefovsky or another tenant, nor can such knowledge be reasonably implied or inferred from the allegations made. Moreover, Yuzefovsky’s allegations, if proven, do not establish an imminent probability of injury to him from a criminal assault by a third party on the premises. There is no allegation that would support the conclusion that on or near the date when Yuzefovsky was injured such assaults or other crimes against persons were occurring, or about to occur, on the premises of St. John’s Wood. Thus, we need not consider whether foreseeable harm at the heightened degree of probability established in
Wright
existed at some other time during this landlord-tenant relationship.
Cf. Thompson v. Skate America,
Similarly, although we have not previously addressed the question whether a business owner, including a landlord, in a special relationship has a duty to warn an invitee or tenant of the danger of harm from criminal activity by a third party on the business owner’s premises, we find no reason in this case to invoke a standard different from that used to determine whether there is a duty to protect.
Cf. Dudas v. Glenwood Golf Club,
For these reasons, we hold that Yuzefovsky’s second amended motion for judgment does not establish a jury issue whether he was in imminent danger of harm from a criminal assault by a third party of which the defendants were aware and, thus, the trial court did not err in sustaining the demurrer to Yuzefovsky’s negligence claims.
Fraud Issues
Yuzefovsky’s second assignment of error asserts that the trial court erred in finding that the false statements he alleged were made to him by employees of St. John’s Wood concerning the safety of the development were mere opinions and, thus, could not form the basis of a claim for fraud. St. John’s Wood contend that the employees’ statements concerning safety are clearly matters of opinion and that the claim that the development was crime-free “is so exaggerated that no reasonable person would be justified in relying upon it.” Expanding on this latter contention during oral argument, counsel for St. John’s Wood asserted that these statements were “puffing,” that is “[t]he expression of an exaggerated opinion-as opposed to a factual representation-with the intent to sell a good or service.” Black’s Law Dictionary 1247 (7th ed. 1999). We disagree with St. John’s Wood.
“It is well settled that a misrepresentation, the falsity of which will afford ground for an action for damages, must be of an
*111
existing fact, and not the mere expression of an opinion. The mere expression of an opinion, however strong and positive the language may be, is no fraud.”
Saxby v. Southern Land Co.,
Here, the statements alleged to have been made by the employees of St. John’s Wood were not volunteered as part of a “shies pitch” to every potential tenant, but were specifically made in response to the Yuzefovsky’s expressed concern for his personal security. Moreover, the specific statements that the development was crime-free, that police officers lived there, and that police vehicles patrolled the development are not matters of opinion or puffing, especially when, as is alleged, the employees knew these statements to be objectively false. Accordingly, we hold that the trial court erred in finding that these false statements were not fraudulent misrepresentations of fact.
Yuzefovsky’s third assignment of error raises the issue whether the trial court erred in finding that, even if these statements were fraudulent, there was no causal nexus between the fraud and the subsequent injuries resulting from the assault by a third party unknown to St. John’s Wood. St. John’s Wood contend that at best the allegations constitute a claim for fraudulent inducement to enter into a contract and that the damages resulting from the criminal assault more than a year and half after the alleged act of fraud are too remote to give rise to liability. We agree with St. John’s Wood.
To sustain a claim of actual fraud, the plaintiff must prove a false representation, of a material fact, made intentionally and knowingly, with intent to mislead, reliance by the party misled, and resulting damage.
Evaluation Research Corp.
v.
Alequin,
In determining whether a cause of action for fraud sounds in contract or tort, and the damages that will arise therefrom, the source of the duty to abstain from making the fraudulent representation must be ascertained.
Richmond Metropolitan Authority v. McDevitt Street Bovis, Inc.,
It is clear that the duty to refrain from making these statements relates to the contract Yuzefovsky was induced to sign, and not from a common law duty. In addition, the assault by the third party was remote in time from the execution of the contract and, thus, the damages for which Yuzefovsky sought recovery under the theory of fraud did not directly result from the fraudulent inducement to enter into that contract. Accordingly, we hold that the trial court did not err in sustaining the demurrer to the claim for fraud.
CONCLUSION
For these reasons, we will affirm the judgment of the trial court sustaining the demurrer to Yuzefovsky’s second amended motion for judgment.
Affirmed.
Notes
Yuzefovsky does not allege with specificity how many of the crimes on the property of St. John’s Wood occurred prior to his decision to lease an apartment from St. John’s Wood. It is a reasonable inference that at least some of these crimes occurred prior to December 1994. Yuzefovsky also does not allege with specificity how many of these crimes occurred, if any, immediately prior to the November 21, 1996 assault upon him.
The relationship between General Services Corporation and GSC Security is not clear from the record. For purposes of this appeal, we draw the reasonable inference that General Services Corporation is a management company and GSC Security is either a unit of that company or a wholly owned subsidiary of it.
Yuzefovsky does not contend that there was a special relationship between St. John’s Wood and the third party criminal actor in this case. We note that the existence of such a relationship is almost always limited to a defendant’s exercise of a legal duty to control the actions of a person in custody or on parole.
See, e.g., Dudley,