Survival of a Tort Claim which Seemingly Arises out of Breach of Contract

Heather K. Bardot, Esquire
March 11th, 2011
By: Heather K. Bardot, Esquire

On March 4, 2011, the Supreme Court of Virginia issued an opinion in Kaltman v. All American Pest Control, Inc., Record No. 092541, reversing the trial court’s sustaining of a demurrer. The demurrer had challenged the plaintiffs’ ability to file suit in tort against the defendant-pest control company and its employee on the basis that, since the defendants’ allegedly negligent conduct arose out of a contract to apply pesticide, the only available cause of action was breach of contract. Defendants relied upon Richmond Metropolitan Authority v. McDevitt Street Bovis, Inc., 256 Va. 553, 507 S.E.2d 344 (1988) and Dunn Construction Co. v. Cloney, 278 Va. 260, 682 S.E.2d 943 (2009). In rejecting defendants’ argument, the Supreme Court noted that the plaintiffs were seeking “redress for injuries to their persons and property as a result of alleged breaches of common law and statutory duties. . . . Just because the application of pesticides is included in [defendants’] contractual duty to control pests, it does not follow that [plaintiffs] have contracted away their common law and statutory rights. Because [plaintiffs] have alleged that [defendants] breached common law and statutory duties independent of the company’s contractual duty to control pests, we hold that the trial court erred when it sustained the demurrers to the [plaintiffs’] negligence counts.” The Kaltman opinion does not necessarily represent a change in existing law, but it certainly clarifies how a Complaint should be pled to overcome the McDevitt and Dunn holdings and suggests that it may become more difficult to obtain early dismissal of personal injury or property damage claims which seem to arise from negligent performance of a contract so long as the plaintiff can identify a statutory or common law duty which has purportedly been violated.


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