A number of recent Virginia personal injury cases involving collapsing decks have led some Virginia lawyers to wonder if this rash of cases is indicative of a growing area of injury law. Many such cases reveal residential deck construction showing signs of design and construction shortcuts, as well as a lack of the requisite inspection and permit. Deck construction done more than a generation ago is now reaching the age where a collapse is increasingly likely. For defense attorneys and insurers, this means a potential increase in cases that often involve serious injuries, as well as a specific set of issues that need to be explored in evaluating liability.
In cases where a guest sues an occupying homeowner for injuries resulting from a collapsed deck, basic premises liability rules control. Therefore, in order to prevail against the homeowner occupying the premises, the injured guest must prove that the homeowner had knowledge of the defect causing the collapse – in other words, that the homeowner either had actual knowledge of the defect, or that the defect had existed for such a length of time as to make it the homeowner’s duty in the exercise of ordinary care to have discovered it. See Roll “R” Way Rinks v. Smith, 218 Va. 321 (1977).
Proving notice can be difficult enough, but another host of issues arise when a collapsed deck case involves a tenant (or a guest of a tenant) suing a landlord. Under Virginia law, a landlord is not liable to its tenant for failing to make a repair to the leased premises which is under the exclusive possession and control of the tenant. See Isbell v. Commercial Inv. Assoc. 273 Va. 605 (2007). Put another way, the landlord only has a duty to maintain in a reasonably safe condition those portions of leased property that are reserved for the common use of tenants. Regarding promises to repair, the landlord only has a duty to use reasonable care if it actually enters the property to make repairs. Luedtke v. Phillips, 190 Va. 207 (1949). Therefore, a tenant injured as the result of a collapsed deck that is in his exclusive possession and control will typically have no right to recover from the landlord. One notable exception to the rule, however, is that the landlord will be liable for an injury caused by a latent defect that the landlord knew about when the landlord leases the premises.
The factual determination of whether the deck was in the exclusive possession and control of the tenant can be tricky in some situations, however. This was illustrated by a recent Virginia case involving a family of six people injured as the result of a second story deck collapse. The deck had been attached to an apartment building that was rented by one of the children in the family. The combined medical bills for the family totaled well over $500,000. Suit was filed against the landlord and property manager, who asserted that the deck was within the exclusive possession and control of the tenant, which if proven, would have absolved them of liability.
The case was made more complicated for the defense when a building inspector determined that the collapse was caused by the deck’s ledger board, which had not been properly anchored to the building. The plaintiffs alleged that because the defective ledger board was located below the surface of the deck, the tenant could not even see the ledger board without trespassing onto the patio of the tenant below. For this reason, the plaintiffs prepared to argue that the ledger board was part of a “common area,” which would have triggered a duty on the defendants to maintain the ledger board in reasonably safe condition. On the flip side, the defendants maintained that the ledger board was merely a discrete component of the deck, which was within the tenant’s exclusive control. Additionally, even if the ledger board was not within the exclusive control of the tenant, it would have been within the exclusive control of the tenant below – not part of a common area.
Virginia law did not provide a clear answer on whether the ledger board was properly considered part of a common area versus being within the tenant’s exclusive control. However, cases settled before trial for a combined $2.3 million, leaving that question unresolved. The case did provide a clear reminder that while these cases often involve serious injuries, strong defenses are often available. Defendants and insurers must be aware of those defenses, and also anticipate creative arguments by injury attorneys attempting to hold property owners liable for such accidents.
– Matthew Daly, Esquire
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