Bedbug bites back fraud and consumer claims
Published: July 7, 2011
Tags: Consumer Protection, Fairfax County Circuit Court, Fraud, Judge R. Terrence Ney
A Northern Virginia family moved into an apartment in Fairfax in 2009 that they claim was so infested with bedbugs that they had to move out just a few months later.
They just learned that they can sue their landlord for the bites they suffered and other injuries.
In addition to a breach of contract lawsuit based on their lease, they can pursue a fraud claim and a count under the Virginia Consumer Protection Act, a Fairfax judge has ruled.
However, in Park v. Gates Hudson Inc. (VLW 011-8-122), Fairfax Circuit Judge R. Terrence Ney rebuffed the family’s effort to use a new Supreme Court case to bring a negligence claim or a gross negligence claim that might carry punitive damages.
The family – a man, a woman and their two children – moved into the apartment in early 2009, and they say they discovered bedbug infestation so severe that they moved out that May.
They brought suit earlier this year under a number of claims – breach of contract, negligence, gross negligence, fraud and the Virginia Consumer Protection Act.
The contract was straightforward – it was based on breach of the lease. The landlord promised to provide an apartment that was in “good and satisfactory condition and repair.” It allegedly provided an apartment that was not clean, safe, sanitary or free of vermin. That was enough to keep the claim in court, Ney wrote, overruling a demurrer.
The judge tossed the negligence counts, however. The plaintiffs sought to use a [January] decision from the Supreme Court of Virginia, Kaltman v. All American Pest Control (VLW 011-6-037). The decision held that in some circumstances a claim for negligence can stand independently from a breach of a contract.
In that case, the judge wrote, homeowners hired a pest control company that used the wrong pesticide, in breach of their agreement. There was a separate statutory duty that the defendant breached. There was no comparable statutory duty in this case, Ney said, dismissing those claims.
Although the fraud claim was “perhaps imperfectly alleged,” Ney let it go forward. The plaintiffs claimed that the landlord knew about the bedbug problems and made misrepresentations about the condition of the apartment before they signed the lease.
The judge allowed a Virginia Consumer Protection Act claim on similar grounds. The Act covers leases and “the alleged concealment of bedbug infestation constitutes a deceptive trade practice” under the Act, he wrote.
The plaintiffs were not able to keep a claim for intentional infliction for emotional distress.
Under the case law, that cause of action requires a defendant to have engaged in conduct that is offensive and intolerable.
Dismissing that count, Ney concluded, “Bedbugs may be a genuine problem, but they hardly offend decency and morality.”