Moran v. Federal National Mortgage Association
Filing
20
OPINION AND ORDER. The case is now before the Court on Defendant's motion to dismiss all three claims alleged by Moran. Considering the facts pled, and fair inferences from those facts, the Court finds that Moran was not contributorily negligen t as a matter of law and thus DENIES the motion to dismiss Count I (Negligence) and Count II (Negligence Per Se). Count III (Nuisance, however, rests on conclusory statements, and is insufficient to state a claim for public nuisance. Accordingly, the Court GRANTS Defendant's motion to dismiss the nuisance claim. While Moran has alleged insufficient facts to support a nuisance claim, the Court finds that Plaintiff was not contributorily negligent as a matter of law. For the reasons set forth in this Order, the undersigned DENIES the motion to dismiss Counts I and II, and GRANTS Defendant's motion to dismiss Count III. Entered and filed 7/17/12. (Signed by Magistrate Judge Douglas E. Miller on 7/17/12). (ecav, )
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
DANIEL E. MORAN,
Plaintiff,
CIVIL ACTION NO. 2:12-cv-212
v.
FEDERAL NATIONAL
MORTGAGE ASSOCIATION
d/b/aFANNIEMAE,
Defendant
OPINION AND ORDER
Daniel E. Moran ("Plaintiff or "Moran") was a prospective buyer of a property owned
by Federal National Mortgage Association ("Defendant" or "Fannie Mae"). While viewing
Defendant's property, Plaintiff entered a darkened basement staircase which was missing several
steps. Moran fell to the basement floor, injured himself, and this premises-liability action
followed.
The case is now before the Court on Defendant's motion to dismiss all three claims
alleged by Moran.1 Considering the facts pled, and fair inferences from those facts, the Court
finds that Moran was not contributorily negligent as a matter of law and thus DENIES the
motion to dismiss Count I (Negligence) and Count II (Negligence Per Se). Count III (Nuisance)
however, rests on conclusory statements, and is insufficient to state a claim for public nuisance.
Accordingly, the Court GRANTS Defendant's motion to dismiss the nuisance claim.
1 On June 1, 2012, the Court referred this matter to the undersigned Magistrate Judge pursuant to the parties'
consent, 28 U.S.C. § 636(c), and Fed. R. Civ. P. 73.
1
I. FACTS
Defendant Fannie Mae is owner of the premises located at 3901 Gosnold Avenue ("the
Property") Norfolk, Virginia. The Property was listed for sale to the public and Defendant
engaged real estate agents to show the listing. In August 2009, Defendant completed an appraisal
of the Property. The appraisal report noted the presence of a partial basement as well as several
structural deficiencies. Deficiencies included "incomplete walls, missing interior doors . . . and
missing floor covering." (Complaint, 1 10). The report further stated the "property was in the
middle of some sort of renovation and currently in poor condition." IdL at ffi| 10-11. At the time
of the inspection a portion of the stairs leading down to the basement was missing and the lights
in that area were not working. Id In order to control access to the Property, the Defendant placed
a lock box at the back of the house to be used by prospective buyers to gain entry. Id. ^ 9.
Plaintiff, an interested buyer, inspected the Property on September 14, 2009. While
viewing the Property with a real estate agent, Moran found the staircase leading to the basement.
Unknown to Moran, the staircase lacked all but the top three stairs. The power was out and the
staircase darkened, so Moran used a small flashlight to illuminate the stairs. As Moran descended
he fell approximately six feet to the basement floor and sustained injuries to his face, shoulder,
wrist, and knee. Plaintiff seeks damages in the amount of $1,350,000.00 under several legal
theories.
The Complaint asserts three claims against Defendant. Count I and II allege negligence
and negligence per se respectively. Count III is a nuisance claim. Fannie Mae has moved to
dismiss all three Counts. The Court will address each of Defendant's arguments in turn.
II. STANDARD OF REVIEW
"A pleading that states a claim for relief must contain ... a short and plain statement of
the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A pleading fails
to meet this standard and is subject to dismissal under Rule 12(b)(6) when it does not "contain
sufficient factual matter, accepted as true, 'to state a claim that is plausible on its face.'" Ashcroft
v. IqbaL 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 570
(2007)). A claim has facial plausibility when the plaintiff pleads factual content "that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Iqbal. 556 U.S. at 678.
"Factual allegations must be enough to raise a right to relief above the speculative level"
and beyond the level that is merely conceivable. Twomblv. 550 U.S. at 570; Iqbal, 556 U.S. at
680-81. Legal conclusions and "threadbare recitals of the elements of a cause of action" do not
state a claim. Iqbal, 556 U.S. at 678.
The Supreme Court has described the motion to dismiss analysis in two parts. First, the
Court must accept the allegations of fact as true. Iqbal. 556 U.S. at 678. However, a court is not
required "to accept as true a legal conclusion couched as a factual allegation," Papasan v. Allain.
478 U.S. 265, 286 (1986), or a legal conclusion unsupported by factual allegations, Iqbal. 556
U.S. at 678-79. After reviewing the allegations, the Court must consider whether they are
sufficient to state a plausible claim for relief - "a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense." Iqbal. 556 U.S. at 679.
A. Moran was not contributorilv negligent as a matter of law.
Defendant moved to dismiss Count I (Negligence) and Count II (Negligence Per Se)
because "the undisputed facts show that Plaintiff was contributorily negligent." (ECF No. 7 at 4).
Defendant supports its position with admissions Plaintiff made previously in a state court action
which he later non-suited. Id Specifically, Defendant contends that Moran's claims in his state
court Complaint bear on the issue of contributory negligence and thus should be admitted against
him here. Id at 7. Plaintiff objects to any reference to the allegations in the non-suited state court
case. (ECF No. 9 at 6). The Court finds it unnecessary to the resolution of this motion to
determine whether evidence from the non-suited state court action is properly admitted in this
case. Whether the Court relies on admissions derived from the non-suited state action, or only on
the pleadings in this case, the result is the same. The Court cannot say as a matter of law that
Moran was contributorily negligent.
"In Virginia, contributory negligence is a complete defense to [a negligence] claim."
Taylor v. Kellogg Brown & Root Services. Inc.. 658 F.3d 402, 405 n.6 (4th Cir. 2011).
Establishing contributory negligence requires the defendant to show the plaintiff "failed to act as
a reasonable person would have acted for his own safety under the circumstances." Estate of
Moses ex rel. Moses v. Sw. Va. Transit Mgmt. Co.. Inc.. 643 S.E.2d 156, 159-60 (Va. 2007). In a
premises liability case, a plaintiff is contributorily negligent when he disregards an "open and
obvious danger." Rocky Mount Shopping Ctr. Assocs. v. SteagalL 369 S.E.2d 193, 194 (Va.
1988).
Defendant relies on two cases for the proposition that a darkened staircase was an open
an obvious hazard. See Baker v. Butterworth. 89 S.E. 849 (Va. 1916) (holding hotel guest
contributorily negligent for injuries sustained when she fell down a staircase at the end of an
unlighted hall); Smith v. Wiley-Hall Motors, Inc., 34 S.E.2d 233 (Va. 1945) (finding motorist at
gas station who fell into a grease pit after entering a darkened room in search of toilet
contributorily negligent).
This case is not sufficiently analogous to Baker or Smith to rule as a matter of law that
Moran was contributorily negligent. Leaving aside the duty an owner has to warn an invitee of
latent dangers, Kalopodes v. Federal Reserve Bank of Richmond. 367 F.2d 47, 50 (4th Cir.
1966), the facts asserted by the Defendant do not demonstrate that Moran showed a total
disregard for his own safety. See Baker, 89 S.E. at 850 ("total disregard" for plaintiffs own duty
to exercise ordinary care results in finding of contributory negligence).
Examining only the
allegations in the federal pleading, Moran simply describes entering the stairwell, affirmatively
alleging that he exercised due care.
The Defendant argues that the federal Complaint was revised to omit allegations made in
state court that the stairwell was "dark and unlit," suggesting that Moran, like both Baker and
Smith, ignored an open and obvious defect.
It urges the Court to consider the state court
allegations and attached deposition testimony elicited during the state court litigation "simply to
illustrate that Moran's use of Mark and unlit' in the first action was not an error of counsel in
drafting the Complaint."
(ECF No. 12, pp. 5, 7-8).
To the extent the attached deposition
testimony helps illuminate the allegations in the Complaint, the testimony also supports Moran's
affirmative claim that he exercised due care.
Unlike the injured plaintiffs in Baker and Smith. Moran used a small flashlight during his
descent of the darkened staircase. (ECF No. 7-4). For some reason the flashlight was insufficient
to prevent his fall, but Moran's use of a light source is sufficient to support his affirmative claim
that he used due care for his own safety. As a result, the question of Plaintiffs contributory
negligence is for the jury. See Colonial Natural Gas Co. v. Savers, 284 S.E.2d 599, 602 (Va.
1981) ("contributory negligence is generally a jury question."). Defendant's motion to dismiss
Counts I and II is therefore DENIED.
B. Count 3 fails to state a claim of nuisance.
Count 3 alleges a nuisance cause of action against Fannie Mae by "negligently allowing]
to exist a condition which was dangerous to members of the public lawfully on the premises at
3901 Gosnold Avenue." (Complaint, ^ 23). Plaintiff concludes that because he was a member of
the public and injured as a result of a dangerous condition on the Property, a cognizable nuisance
claim has been stated. The Court disagrees.
Nuisance and negligence are distinct legal theories. Chapman v. City of Virginia Beach.
475 S.E.2d 798, 802 (Va. 1996). While negligent acts may give rise to dangerous circumstances,
the negligent acts do not constitute a nuisance. Id. at 802. Nuisances may be either "public" or
"private." City of Virginia Beach v. Murphy. 389 S.E.2d 462, 463-64 (Va. 1990). Private
nuisances derive from "an activity which unreasonably interferes with the use and enjoyment of
another's property." Id. at 463 (quoting Newport News v. Hertzler, 221 S.E.2d 146, 150 (Va.
1976)). Put another way, a private nuisance implicates a right which is particular to an
individual, such as an interest in land. Id See also Restatement (Second) of Torts § 821(D) ("a
private nuisance is a nontrespassory invasion of another's interest in the private use and
enjoyment of land").
By contrast, a public nuisance occurs when "a public right or privilege common to every
person in the community is interrupted or interfered with." Murphy. 389 S.E.2d at 463 (quoting
People v. Rubenfeld. 172 N.E. 485, 486 (N.Y. 1930)). The distinction between public and private
nuisance does not turn exclusively on the number of individuals affected. Id That is, the test is
not the "number of persons annoyed, but the possibility of annoyance to the public by the
invasion of its rights." Id. (quoting Couture v. Bd. of Educ. of Town of Plainfield. 505 A.2d 432,
435 (Conn. App. Ct. 1986). See also Restatement (Second) of Torts § 821 (B) comment g (public
right is common to all members of the general public . . . and not like the individual right
everyone has not to be negligently injured).
In this case, the Complaint has offered no factual support to properly state a claim of
private nuisance. Moran has not alleged that the staircase on Defendant's property in any way
interferes with the use and enjoyment of his property. Instead, the Court agrees with Defendant
that a staircase inside a locked private residence has no effect on another's use and enjoyment of
their property. (ECF No. 7 at 12). Therefore, because Plaintiff has not alleged unreasonable
interference with the use and enjoyment of his land or any right particular to him, Moran has
failed to state a claim of private nuisance. Murphy, 389 S.E.2d at 463.
Likewise, Moran has failed to state a claim of public nuisance. Plaintiff simply argues
that he was a member of the public and was injured as a result of a dangerous condition on
Defendant's property. But the public does not enjoy a right or privilege to access the staircase
within Defendant's Property. As a business invitee Moran gained access to the Property only
upon invitation from Defendant. See Restatement (Second) of Torts § 332 comment a (invitees
are limited to those persons who enter or remain on land upon invitation). Because the public
was not generally invited to Defendant's private Property, no public right was implicated. In the
absence of a public right, with which the staircase allegedly interfered, Moran cannot state a
claim of public nuisance.
Plaintiff baldly concludes that whether adequate facts exist to justify his claim of public
nuisance "is a question to be answered by the jury," but he has provided no authority to support
this argument, and binding precedent contradicts his claim. Iqbal. 556 U.S. at 678-79. Moran's
conclusions are not supported by sufficient facts; therefore, Plaintiff has failed to establish a
claim of public nuisance. Count III of the Complaint will be dismissed.
III. CONCLUSION
While Moran has alleged insufficient facts to support a nuisance claim, the Court finds
that Plaintiff was not contributorily negligent as a matter of law. For the foregoing reasons the
undersigned DENIES the motion to dismiss Counts I and II, and GRANTS Defendant's motion
to dismiss Count III.
Douglas E.
IsL
—
United States Magistrate Judge
DOUGLAS E. MILLER
UNITED STATES MAGISTRATE JUDGE
Norfolk, Virginia
July 17,2012
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