A few months ago, the Virginia Supreme Court addressed the question of whether a construction company that built a new home for a family could be held liable for personal injuries sustained by members of the family as a result of mold growth resulting from leaks in the structure. (Tingler v. Graystone Homes, Inc., 2019 WL 5607851 – Oct. 31, 2019). In a 41-page opinion that should be reviewed closely by both builders and homeowners, the court confirmed that Virginia law may permit such claims but only in narrowly defined circumstances.
Before the Court launched into its long, yet well organized, analysis of the issue, it provided a brief but complete outline of the facts:
George and Crystal Tingler entered into a construction contract in 2009 with a homebuilder, Graystone Homes, Inc., to construct a new home on property owned by a family-run company, Belle Meade Farm, LLC. After the house had been built, rain water leaked into the house and mold developed. Graystone tried, but failed, to fix the leaks and to remediate the mold. The Tinglers and their four children abandoned the home due to the mold and sued Graystone, seeking tort remedies for personal injuries, property damage and economic losses. The Tinglers and Belle Meade separately sued Graystone, seeking contract remedies for property damage and economic losses.
In the lawsuit, and among other claims, the individual members of the Tingler family allege that Graystone built a house that leaked and then failed to repair those leaks and remediate the mold in the house that occurred as a result, and that such conduct caused them to suffer personal injuries resulting from their exposure to the mold. To highlight just how bad things had gotten for the family by the time they filed their lawsuit, the Tinglers pleaded that they and their children had been diagnosed with mold toxin syndrome and remained under continuing medical care for their symptoms.
The case was brought before the Supreme Court, however, after the Circuit Court of Culpeper County had dismissed all of the claims in the Tinglers’ lawsuit. In particular, the Circuit Court dismissed the individual family members’ personal injury claims on the grounds that, under Virginia law, no negligence claim could be founded on Graystone’s alleged failures to perform or fully perform its duties under the construction contract.
On appeal, and after a thorough review of Virginia law applicable to each of the numerous claims, the Court affirmed the Circuit Court’s dismissal of some of the Tinglers’ personal injury claims and reversed and remanded others for further proceedings. On the one hand, the Court affirmed the dismissal of the Tinglers’ personal injury claims based on Graystone’s failure to do what the contract required, which was to deliver (initially and later through repairs) a weatherproof house. Finding that Graystone’s contractual failure should be considered nonfeasance (defined as “failing to do what one has promised to do”) as opposed to misfeasance (“broadly, a transgression or trespass”) or malfeasance (“an affirmative, wrongful, unlawful, or dishonest act”), the Court concluded that “no freestanding tort claim for personal injuries…can be asserted in this context.” The Court reminded contractors, however, that they still may be held liable for negligent acts during the construction of the house, such as dropping a hammer on a bystander or leaving “an inconspicuous hole in an unfinished floor into which a visitor fell.”
On the other hand, the Court reversed and remanded the Tinglers’ personal injury claims to the extent they were based on allegations that Graystone’s attempts to repair the house actually “worsened the mold conditions and, by doing so, aggravated preexisting personal injuries.” The Court held that the alleged “deficiencie [nt]” repair efforts, if supported by the evidence, would be considered “positive act[s] of negligence,” and thus would constitute not mere nonfeasance but misfeasance by Graystone, which can support the personal injury claims made against it by the Tinglers.