A claim of “personal injury” for alleged mold exposure doesn’t turn every alleged breach of original construction contract into a tort.

Melissa H. Katz, Esquire
November 2nd, 2019
By: Melissa H. Katz, Esquire

Recently, the Virginia Supreme Court, in the case of Tingler v. Graystone Homes, Inc. held that the trial court did not err in its ruling sustaining a home builder’s demurrer to a negligence count for alleged breach of the original construction contract. In that case, a family, in related suits alleged personal injuries and damage resulting from mold that developed in a home built by the defendant contractor. The plaintiffs pled many theories of liability, all of which were dismissed by the trial court.

On appeal, the Virginia Supreme Court held that the trial court did not err in dismissing the negligence tort counts as to the contractor’s alleged failures during the original-construction phase, dismissing a negligent-repair claim to the extent that it asserted property damage to the home and economic losses, or in dismissing counts of negligence per se as to contractor’s alleged failures during the original-construction phase. The Court held that a breach of original construction contract (an alleged failure to perform under the contract or omission (nonfeasance)) did not give rise to a tort action merely because the homeowners alleged personal injury.

Instead, the Court held that there must be some affirmative act (misfeasance or malfeasance) which caused the alleged injury. In the subject case, the contractor made multiple repairs to fix a leaking condition and the Court held that because the plaintiffs alleged that this worsened the mold condition, the allegations in the lawsuit regarding negligent repairs were sufficient to withstand dismissal. Specifically, the Court held that the trial court erred in dismissing a negligent-repair count in the family’s personal-injury complaints to the extent that those allegations claimed that the contractor’s misfeasance worsened the mold conditions and, by doing so, aggravated preexisting personal injuries. The judgment was affirmed in part and reversed in part, and the action remanded. The entirety of the Court’s opinion is at http://www.courts.state.va.us/opinions/opnscvwp/1180791.pdf.


This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More