James Manning et al v. Drury Hotels Company, LLC et al (FILE IN THIS CASE ONLY), No. 3:2023cv00586 - Document 47 (E.D. Va. 2024)
Court Description: MEMORANDUM OPINION re: Order (ECF No. 45 ). See for complete details. Signed by District Judge Robert E. Payne on 4/18/2024. (nbrow)
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James Manning et al v. Drury Hotels Company, LLC et al (FILE IN THIS CASE ONLY) Doc. 47 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division JAMES MANNING, et al.' Plaintiffs, v. Civil Action No. 3:23-cv-586 DRURY HOTELS COMPANY, LLC, d/b/a DRURY PLAZA HOTEL RICHMOND, et al., Defendants. MEMORANDUM OPINION This matter is before the Court on OTIS ELEVATOR COMPANY'S MOTION TO DISMISS Motion") ' PLAINTIFF'S DEFENDANT OTIS COMPLAINT ELEVATOR (ECF COMPANY' s No. 15) ("the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS (ECF No. 16), PLAINTIFF'S RESPONSE TO OTIS ELEVATOR COMPLAINT PLAINTIFF'S (ECF COMPANY'S No. RESPONSE 22), TO MOTION TO Plaintiffs' OTIS DISMISS PLAINTIFF'S COMPLAINT BRIEF ELEVATOR (ECF No. DISMISS IN COMPANY'S PLAINTIFF'S SUPPORT OF MOTION TO 23) , 1 and DEFENDANT OTIS ELEVATOR COMPANY'S MEMORANDUM REPLYING TO PLAINTIFF'S RESPONSE The plaintiffs filed a response and a separate memorandum in support of the response, as one would file when filing a motion and supporting memorandum under Local Rule 7. This was procedurally in error, but the memoranda do not appear to make separate arguments. Accordingly, the Court construes them as one memorandum. 1 Dockets.Justia.com TO, AND IN FURTHER SUPPORT OF, OTIS'S MOTION TO DISMISS (ECF No. 25). Having reviewed the papers and heard oral argument, and for the reasons set forth on the record on April 2, 2024, and for those reasons set forth below, the Motion will be granted. BACKGROUND I. Procedural History On June 23, 2023, Plaintiffs James Manning, Sherry Lomax, Robert Watson, and Debra Manning filed individual actions in the Circuit Court of Virginia for Henrico County against Defendants Drury Hotels Company, LLC and Drury Development Corporation (individually and collectively "Drury"), doing business as Drury Plaza Hotel Richmond, as well as Defendant Otis Elevator Company ("Otis") . Each complaint alleged negligent failure to maintain an elevator in the Dury Plaza Hotel in western Henrico County. ECF No. 1-2; Case No. 3:23-cv-587, ECF No. 1-2; Case No. 3:23- cv-588, ECF No. 1-2; Case No. 3:23-cv-589, ECF No. 1-2. After Drury filed a NOTICE OF REMOVAL case on September 14, 2023, and after (ECF No. conferring 1) in each with parties at the initial pretrial conference on March 30, the Court consolidated the cases and ordered that all the 2024, future pleadings to be filed under the style of this case, Civil Action No. 3: 23-cv-586. Order of March 22, 2024 (ECF Motion seeks dismissal of all cases as to Otis. 2 No. 31) . The II. Factual Background The facts alleged in the COMPLAINT (ECF No. 1-2) and taken in the light most favorable to the plaintiffs, are simple. On or about August 8, 2021, all four plaintiffs were passengers in an elevator at the Drury Plaza Hotel Richmond. ECF No. 1-2 Id. 1 While 3. The plaintiffs were registered guests of the hotel. the plaintiffs were on the elevator, it allegedly malfunctioned and fell approximately two floors before stopping abruptly, injuring the plaintiffs. Id. 11 4, contract with Drury to maintain the elevator. Id. OTIS ELEVATOR COMPANY (ECF No. 19) 1 9. 1 Otis had a 2; ANSWER OF 2. The plaintiffs have pled that: [I]t was the Duty [sic] of Otis to properly maintain the aforementioned elevator free from defects. It was also the duty of Otis to warn invitees as well as Drury of any defective condition associated with the elevator. ECF No. continued, 1-2 1 7. "Otis "Notwithstanding carelessly and said duties," negligently Plaintiffs maintained the elevator so that it malfunctioned causing it to suddenly fall approximately two floors before stopping abruptly," injuring the plaintiffs. Id. 1 8. 3 III. Parties' Positions a. Otis The crux of the Motion is that Otis did not owe a duty in tort to the plaintiffs. Noting that there are only two potential sources of a legal duty from which a cause of action could arise: tort and contract, 2 Otis points out that the maintenance contract was between Otis and Drury, and that none of the plaintiffs were a party to it. Id. at 2. So, the only duty Otis could owe the plaintiffs is in tort, i.e., negligence. Citing 2019), Tingler Otis negligence, argues v. Graystone that to Homes, establish a 834 S.E.2d cognizable 244 (Va. claim for the duty alleged to have been breached must be a statutory or common law duty, Id. at 6. Tingler, not one arising out of contract. says Otis, stands for the proposition that a duty of care in tort cannot arise from a contract. ECF No. 16 at 7 ("Generally, the duty must arise by operation of law and not by mere agreement of the parties. Stated differently, a is property a legal wrong committed independent of contract.") upon person (quoting Tingler, (cleaned up) . 2 the See ECF No. 16 at 5-6. 4 or 'tort' 834 S. E. 2d at 254) Otis also relies on a recent Eastern District of Virginia case that it says is on all fours with this one. In Holderfield v. ThyssenKrupp 980638 (E.D. Elevator Va. March Corp., 30, No. 1:20-cv-01599, 2022), the court 2022 WL dismissed a complaint alleging that the elevator company negligently failed to maintain an elevator in a government building where the elevator company had a contract to maintain the elevators. ECF No. 16 at 7. According to Otis, Holderfield held that "[w] hile Virginia tort law has recognized actionable claims with respect to elevator injuries, these decisions have only extended to the owners and operators of elevators, and not in the context of a defendant contractual tasked solely, elevator maintenance and in a repair. Id. 11 at capacity, 8 (quoting with 2 022 WL 980638, at *10). Therefore, says Otis, the only duty Otis owed the plaintiffs was the universal common law duty not to harm them actively or affirmatively. Id. Otis characterizes this as a duty not to someone engage in through "nonfeasance." Id. "misfeasance," an omission, Citing versus which Tingler a it again, duty . . to characterizes Otis there is no common law duty in tort to "fail[] that would have prevented harm . not contends harm as that to do something . " Id. at 9 (quoting 834 S.E.2d-at 256). By way of another example, Otis cites a case in 5 which the court held that there was no duty of one defendant, which had contracted to perform maintenance on the other defendant's property, to prevent an attack and robbery due to a door lock left in disrepair. Id. at 10 (citing Holles v. Sunrise Terrace, Inc., 509 S.E.2d 494, 498 (Va. 1999)). b. Plaintiffs In their response MEMORANDUM, conclusory statement from the the plaintiffs repeat their COMPLAINT that Otis "carelessly and negligently maintained the elevator . . both . " and that Otis had a duty to maintain the elevator free from defects. ECF No. 22 1 2. In addition, the plaintiffs respond to Otis's contention that Otis owed the plaintiffs no common law duty of care, by arguing that a Virginia court has ruled against Otis before on this very issue, attaching a Markert v. Richmond Int'l Raceway, Circuit Court 2008). ECF No. 22 1 copy of an order from Inc., No. CL062737 3; ECF No. (Richmond 22 at 3. However, the order they attached was one merely denying Otis's demurrer in that case, 3 and it provided no context whatsoever for the nature of the claim or demurrer itself. 3 Moreover, the Order was marked up and in handwriting different from that of the presiding judge, without a separate date or initial, confusingly explaining that the demurrer was denied in part and granted in part. See ECF No. 22 at 3. 6 In a (see separately filed brief in support of the n.l, supra), arguments. First, the plaintiffs make some they characterize Otis' s that Otis's contract with Drury "insulate [d] from any and all careless liability in tort conduct. " Elevator Co., that there, 462 ECF No. S.E.2d 98 23 at (Va. for 2. additional argument as legal saying and immunize [d] its Ci ting 1995), "RESPONSE" it negligent and/or Parker v. Elco the plaintiffs argue the court held that the plaintiff "was entitled to present evidence at trial on a theory of negligence against the elevator company." Next, COMPLAINT the plaintiffs respond to Otis's argument that the does not allege misfeasance, but nonfeasance, by pointing to Paragraph 8 of the COMPLAINT which "alleges that the Defendant acted negligently and carelessly causing the elevator to malfunction." That, say the plaintiffs, is tantamount to a claim of affirmative misfeasance. Id. Finally, the plaintiffs address Otis's argument that it did not owe the plaintiffs a common law duty, relying on Boland v. Rivanna Partners, 69 Va. Cir. 308 (2005). ECF No. 23 at 2-3. The plaintiffs argue that, in Boland, as here, the plaintiff sued one defendant who had a contract to safely maintain the parking lots of the other defendant. The independent contractor defendant there argued that the only duty it had arose from that 7 contract. Id. The Boland rejected parking lot here plaintiffs that argument, holding reasonably were argue that that foreseeable the the court users the of the thus, and in independent contractor owed them a duty to use reasonable care in maintaining the lot. here, as in Boland, Id. at 3. According to the plaintiffs, they, guests of the hotel, foreseeably affected by the elevator and therefore, would be Otis owed them a common law duty of care. Id. c. Otis's Reply In reply, Otis made three main arguments: ( 1) plaintiffs misunderstood and mischaracterized Otis's on brief; (2) that Otis is alleged only to have that the arguments engaged in nonfeasance, which is not a breach of the generic duty of care; and (3) that none of the plaintiffs' case analogies held water. ECF No. 25. DISCUSSION I. Legal Standard "A motion filed under Rule 12 (b) (6) sufficiency of a complaint, the facts 186, 192 alleged are (4th Cir. the legal considered with the assumption that true." 2009) challenges Francis v. (cleaned up). Giacomelli, F. 3d The Court "must accept the factual allegations of the complaint as 8 588 true and construe them in the light most favorable to the nonmoving party." Rockville Cars, LLC v. City of Rockville, 891 F.3d 141, 145 (4th Cir. 2018). So, must "[t]o survive a motion to dismiss, contain sufficient 'state a claim Ashcroft v. Corp. v. to Iqbal, Twombly, factual matter, a complaint accepted as relief that is plausible on 556 U.S. 662, 678 (2009) 550 U. s. 544, 570 ( 2007)) . But, true, its to face.'" (quoting Bell Atl. "[a] lthough for the purposes of [a] motion to dismiss [the Court] must take all the factual allegations in the complaint as true, not bound to accept as factual allegation." true a Papasan [it is] legal conclusion couched as a v. Allain, 478 U.S. 265, 286 (1986) . A district court sitting in Virginia applies Virginia choice of law to decide tort actions. Milton v. IIT Res. Inst., 138 F.3d 519, 521 (4th Cir. 1998) Elec. Mfg. of law, Co., 313 U.S. 487 (citing Klaxon Co. v. Stentor (1941)). Applying Virginia choice "Virginia applies the lex loci delicti, place of the wrong, to tort actions like the law of the this one." Id. The alleged tort happened in Virginia. Thus, whether a duty in tort existed is a question of Virginia law. " 'Negligence, ' said, 'is not [ the Supreme actionable unless Court there of is Virginia a legal has] long duty, a violation of the duty, and consequent damage." Burns v. Gagnon, 9 727 S.E.2d 634, 641 (Va. 2012) S.E.2d 902, 904 (Va. (quoting Marshall v. Winston, 389 1990)). Therefore, "[i]n Virginia, '[t]he question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the negligence.'" person who Tingler, seeks 834 to s. E. 2d make at him 253 Offender Aid & Restoration of Richmond, liable (quoting Inc., 401 for his Dudley v. S. E. 2d 878 (Va. 1991)) . In Tingler, the Supreme Court of Virginia set forth a detailed and thorough analysis of the "choice of duty" rule in Virginia, governing whether a duty--the breach of which gives rise to a cause of action- -arises from contract or from common law. Writing for a unanimous court, well-established axiom that Justice Kelsey held to the "there is negligence in the abstract, or in general no such thing as " Tingler, 834 S.E.2d at 253 (quoting Kent v. Miller, 189 S.E. 332 (Va. 1937)). Rather, the negligence must arise from the breach of a specific duty. And: No matter the alleged harm, tort liability cannot be imposed upon a contracting party for failing to do a contractual task when no common-law tort duty would have required him to do it anyway--and thus, as the maxim restates, "in order to recover in tort, the duty tortiously or negligently breached must be a common law duty, not one existing between the parties solely by virtue of the contract." 10 Id. at 255 (quoting MCR Fed., LLC v. JB&A, Inc., 808 S.E.2d 186, 193 (Va. 2017)). Therefore, although the existence of a contract between two liability, failure tort to emphasized recovery parties does for "shield" liability cannot arise perform that not that the pain contract. mere and fact party a does id. ( "We plaintiff tort not, have also has sought standing alone, convert a contract claim into an action in tort.") for from solely by virtue of a See that suffering one (cleaned up). Accordingly, to survive a motion to dismiss as to a claim negligence, a plaintiff must plausibly plead that the defendant breached a common law duty of care, 4 separate from the existence of a contract to maintain premises for another defendant. In assessing the nature of that duty, it is necessary to keep in mind that, the traditional view "[t] hough subject to various exceptions, recognizes that '[t]here is no tort liability for nonfeasance, i.e., for failing to do what one has promised to do in the absence of a duty to act apart from the promise made.'" Id. at 256 (quoting William L. Prosser & W. Page Keeton, Prosser and Keeton on the Law of Torts§ 92, at 657 (Dan B. Dobbs et al. eds., 5th ed. 1984)). This is true whether the harm done to the plaintiffs was foreseeable or not. The breach of Tingler. 4 a duty set by statute was 11 not at "[N] o tort issue in duty arises simply contractually because required [one] fails repairs to make irrespective of the foreseeability of . . . harm to [others]." Id. at 257. In similar contexts, reached the same result. Fam. Props., tenant LLC, suffered Supreme Court of Virginia has In Steward ex rel. Steward v. Holland s. E. 2d 251, 254-255 (Va. 2012) , where a 726 an the injury caused by the condition of the premises, the Supreme Court of Virginia held that a lease could not impute maintain an affirmative leased property common law duty free of on a dangerous landlord defects. And to in Holderfield, an Eastern District of Virginia decision, applying Virginia law, into a common held that an elevator company did not transform carrier standard of care) {which, if so, would impute a higher by virtue of a maintenance contract. 2022 WL 980638, at *10. In fact, the court there held that it could not "find as a matter of law that [the elevator maintenance company] owed any common law duty to [the] plaintiff. Rather, the source of [the company's] duty [arose] entirely from the private agreement to provide elevator repair and maintenance services to [the building owners]." Id. (first emphasis added). In short, a duty in tort must arise independently of a contract, especially where a breach of that duty is alleged by parties not privy to that contract. And no common law duty to 12 prevent harm exists absent a special relationship or other exception to the general rule. II. Analysis The COMPLAINT makes the following allegations: Drury operates the hotel; Drury contracted with Otis to maintain the elevators in the hotel; Otis had a duty to properly maintain the elevators; the plaintiffs were registered guests at the hotel on or about August 8, 2021, when the elevator fell and injured the plaintiffs while they were on it; Otis negligently maintained the elevator causing it to malfunction; defect that caused the fall, Otis was aware of the either actively or constructively; and, Otis did not warn Drury or the plaintiffs. ECF No. 1-2 1~ 1-4, 7-9. However, existed, the mere statement that a duty and that the maintenance was negligent, to maintain are the types of "[t] hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements . . . , " Ashcroft, 556 U.S. at 678, that the heightened pleading standard seeks to weed out. The analysis therefore turns to whether, taking the well- pled factual allegations as true, the COMPLAINT pleads a legally sufficient negligence claim (for failure to maintain or failure to warn). It does not. 13 The contract between Otis and Drury cannot give rise to a negligence action for the authority in this case. Virginia cases, source of a Here, plaintiffs. Tingler is It is well-settled there controlling (and in other relied on in Tingler and elsewhere) that legal duty in tort cannot arise from a contract. Otis contracted to maintain the elevator for Drury. contractual duty was for the benefit of Drury, the This even though the plaintiffs were foreseeable victims of a breach of that duty. See Tingler, 834 S.E.2d at 254 n.8. Because Otis owed the plaintiffs no duty in contract, the plaintiffs must allege that a common law duty existed to state a legally sufficient negligence claim. They have not made such an allegation. Absent the contract, plaintiffs is no passers-by on the the relationship between Otis and the different street. than the Tingler relationship between two instructs the well-settled rule that, in general, there is no higher duty owed between such parties than a general duty to act with reasonable care. That is, a duty not to affirmatively, unreasonably act; i.e., a duty not to engage in misfeasance. See id. at 256 liability for nonfeasance, ("There is no tort i.e., for failing to do what one has promised to do in the absence of a duty to act apart from the promise made.") . This does not change by virtue of the contract between Otis and Drury. 14 Holderfield Holderfield is held persuasive that here as "[actionable well. tort As in claims] Tingler, have only extended to the owners and operators of elevators, and not in the contractual context of a defendant tasked solely, in a capacity, with elevator maintenance and repair." 2022 WL 980638, at Furthermore, *10. the existence the of contract in Holderfield did not transform the elevator company's role into something greater, relationship, like a elevating common carrier, the duty of care than a general duty of reasonableness. or create a to special something higher See id. Thus , Otis did not owe the plaintiffs a common law duty by virtue of being a common carrier, or by virtue of some other special relationship, either. The COMPLAINT does not allege the existence of a common law duty owed by Otis to the plaintiffs to keep the elevator free from defects. Nor does it allege a common law duty to warn. At the hearing on the Motion, counsel explained that he had not amended the COMPLAINT, the "plausibility" Iqbal and containing Twombly, the would amend the for plaintiffs to comply with standard set forth by the Supreme Court in because "necessarily COMPLAINT. he was still particular However, awaiting facts" counsel with discovery which he for Otis made it known that Otis had turned over the relevant documents, 15 weeks prior, in its initial disclosures. Counsel did not dispute that representation. for the plaintiffs Therefore, plaintiffs had the opportunity to seek leave to modify the COMPLAINT before the hearing on this matter, which they failed to do. For that reason, the Motion will be granted without leave to amend. CONCLUSION For the foregoing reasons, TO DISMISS PLAINTIFF'S COMPLAINT OTIS ELEVATOR COMPANY' s MOTION (ECF No. 15) will be granted without leave to amend. It is so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: April __fB_, 2024 16
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