Collett v. Cordovana

PRESENT: All the Justices
GINA M. COLLETT
OPINION BY
v. Record No. 141297 JUSTICE CLEO E. POWELL
June 4, 2015
GARY B. CORDOVANA, ET AL.
FROM THE CIRCUIT COURT FOR THE CITY OF NORFOLK
Everett A. Martin, Judge
Gina M. Collett (“Collett”) appeals the final judgment
entered by the Circuit Court for the City of Norfolk (“trial
court”) on June 26, 2014, sustaining demurrers filed by Gary B.
Cordovana, Margaret H. Cordovana (collectively, “the
Cordovanas”), Dion C. Hayle, and 1273 West Ocean View, LLC 1
(collectively, “1273 WOV”) and dismissing Collett’s complaint
with prejudice.
I. BACKGROUND
Collett owns property located on West Ocean View Avenue in
the City of Norfolk. The Cordovanas own the property located on
one side of Collett’s property and 1273 WOV owns the property on
the other side of Collett’s property.
Collett alleged in her second amended consolidated
complaint 2 that the Cordovanas and 1273 WOV were “responsible for
1
The property previously owned by Hayle was transferred by
deed dated July 10, 2013 to 1273 West Ocean View, LLC.
2
Collett filed separate complaints against each landowner
on July 2, 2013. The trial court granted Collett leave to amend
her complaint on September 6, 2013. Collett filed a “First
directing massive quantities of water run-off and pollutants
from their properties onto [Collett’s] property, thus causing
significant and ongoing damage, financially and emotionally.”
Collett claimed that the Cordovanas and 1273 WOV were liable to
her “pursuant to theories of trespass, nuisance, negligence per
se and ordinary negligence.” Collett requested compensatory
damages up to $500,000 jointly against the defendants; punitive
damages up to $350,000 against each defendant individually; and
temporary and permanent injunctive relief.
With respect to the neighboring properties, Collett
asserted that “instead of draining to the street, a significant
portion of the defendants’ rain and storm run-off drains to
Collett’s property, regularly causing it to flood and sustain
damage to both the real estate and [her] personal property.”
She further alleged that “[t]he run-off includes . . .
pollutants.” Collett also argued that the water run-off from
the Cordovanas’ property and 1273 WOV’s property violates
Norfolk City Code §§ 27-2 and 36-17(b) (the “Norfolk
Ordinances”).
Amended Complaint” against 1273 WOV on September 6, 2013. The
cases were subsequently consolidated and Collett filed a “First
Amended Consolidated Complaint” against the Cordovanas and 1273
WOV. The Cordovanas’ and 1273 WOV’s demurrers were sustained on
March 18, 2014 and Collett was again given leave to amend her
complaint. Collett filed a “Second Amended Consolidated
Complaint” on April 1, 2014, which is the subject of this
appeal.
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Collett claimed that the Cordovanas and 1273 WOV “modified
the topography of their property such that it has exacerbated
the problem and essentially guarantees that Collett will suffer
water-related damages every time a significant rain event
occurs.” Specifically, Collett asserted that the Cordovanas’
property was altered in March 2010 by “dumping . . . a load of
gravel on their parking lot, which raised it approximately four
inches. The gravel was graded in such a manner as to ensure
that water would flow from the [Cordovanas’] property onto
Collett’s property.” The Cordovanas had “another load of gravel
dumped on their rear parking lot, which raised it approximately
four inches higher” in August 2013. However, the Cordovanas did
not obtain proper permits and the City of Norfolk halted the
project.
With regard to modifications by 1273 WOV, Collett asserted
that mulch and “other modifications” were added to the property
“in an effort to address water issues.”
With the dumping of additional material onto
[1273 WOV’s] property, it raised the level
of the property, and in the absence of drain
pumps, an adequate berm, gutters and drain
pipes and/or proper grading, the
modifications to [1273 WOV’s] property and
lack of adequate maintenance essentially
guaranteed that water would flow onto
Collett’s property.
Collett sent numerous communications to the Cordovanas and
1273 WOV notifying them that the “large quantities of water
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cascading from [their] properties” caused “pools of water that
take hours and sometimes days to pump out of her backyard.”
Collett informed the Cordovanas and 1273 WOV that as a result of
the standing water, her “property has become a breeding ground
for mosquitos and other pests.” Collett “often has to board her
dog because [her] yard is unusable.”
The Cordovanas and 1273 WOV filed demurrers asserting that
Collett had failed to allege specific facts to support the
causes of action against them. The Cordovanas and 1273 WOV also
claimed that Collett’s causes of action based on the Norfolk
Ordinances were improper. Specifically, they asserted that
Collett is not a member of the class of persons the Norfolk
Ordinances were designed to protect.
On June 26, 2014, the trial court heard argument, sustained
the demurrers “without leave to further amend,” and dismissed
the matter with prejudice. This appeal followed.
II. ANALYSIS
The purpose of a demurrer is to determine
whether a [complaint] states a cause of
action upon which the requested relief may
be granted. A demurrer tests the legal
sufficiency of facts alleged in pleadings,
not the strength of proof. Accordingly, we
accept as true all properly pled facts and
all inferences fairly drawn from those
facts. Because the decision whether to
grant a demurrer involves issues of law, we
review the circuit court’s judgment de novo.
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Abi-Najm v. Concord Condo., LLC, 280 Va. 350, 356-57, 699 S.E.2d
483, 486-87 (2010) (citations and internal quotation marks
omitted).
Virginia applies a modified common law rule to surface
water. At common law, “[s]urface water is defined as water
‘diffused over the surface of the ground . . . until it reaches
some well defined channel.’” Mullins v. Greer, 226 Va. 587,
589, 311 S.E.2d 110, 111-12 (1984) (quoting Howlett v. South
Norfolk, 193 Va. 564, 568, 69 S.E.2d 346, 348 (1952)). Under
the modified common law rule, “surface water is a common enemy,
and each landowner may fight it off as best he can, ‘provided he
does so reasonably and in good faith and not wantonly,
unnecessarily or carelessly.’” Id. at 589, 311 S.E.2d at 112(quoting McCauley v. Phillips, 216 Va. 450, 453, 219 S.E.2d 854,
858 (1975)). The Court has previously held that
one may, in the reasonable development of
his property, grade it, Mason v. Lamb, 189
Va. 348, 53 S.E.2d 7 (1949), or erect a
building thereon, Motor Company v. Furn.
Company, 151 Va. 125, 144 S.E. 414 (1928),
and not be liable for discharging additional
diffused surface water as a result thereof.
Id. “[A] landowner may not injure another by interfering with
the flow of surface water in a natural channel or watercourse
which has been worn or cut into the soil.” Id. (collecting
cases).
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A. Trespass, Nuisance, and Negligence
“[A]n action for common law trespass to land derives from
the ‘general principle of law [that] every person is entitled to
the exclusive and peaceful enjoyment of his own land, and to
redress if such enjoyment shall be wrongfully interrupted by
another.’” Kurpiel v. Hicks, 284 Va. 347, 353, 731 S.E.2d 921,
925 (2012).
[T]o recover for trespass to land, a
plaintiff must prove an invasion that
interfered with the right of exclusive
possession of the land, and that was a
direct result of some act committed by the
defendant. Any physical entry upon the
surface of the land constitutes such an
invasion, whether the entry is a walking
upon it, flooding it with water, casting
objects upon it, or otherwise.
Id. at 353-54, 731 S.E.2d at 925 (quoting Cooper v. Horn, 248
Va. 417, 423, 448 S.E.2d 403, 406 (1994) (internal citations and
quotation marks omitted)).
“The term ‘nuisance’ includes ‘everything that endangers
life or health, or obstructs the reasonable and comfortable use
of property.’” National Energy Corp. v. O’Quinn, 223 Va. 83,
85, 286 S.E.2d 181, 182 (1982) (quoting Barnes v. Quarries,
Inc., 204 Va. 414, 417, 132 S.E.2d 395, 397 (1963)). “[W]e
broadly construe an occupant’s right to the ‘use and enjoyment
of land.’” Bowers v. Westvaco Corp., 244 Va. 139, 144, 419
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S.E.2d 661, 665 (1992) (quoting Foley v. Harris, 223 Va. 20, 28,
286 S.E.2d 186, 190 (1982)).
The phrase “use and enjoyment of land” is
broad. It comprehends the pleasure, comfort
and enjoyment that a person normally derives
from the occupancy of land. Freedom from
discomfort and annoyance while using land,
which inevitably involves an element of
personal tastes and sensibilities, is often
as important to a person as freedom from
physical interruption with use of the land
itself. The discomfort and annoyance must,
however, be significant and of a kind that
would be suffered by a normal person in the
community.
Id. at 145, 419 S.E.2d at 665 (quoting Foley, 223 Va. at 28, 286
S.E.2d at 190-91 (citations omitted)).
“A plaintiff who seeks to establish actionable negligence
must plead the existence of a legal duty, violation of that
duty, and proximate causation which results in injury.” Delk v.
Columbia/HCA Healthcare Corp., 259 Va. 125, 132, 523 S.E.2d 826,
830 (2000).
Applying the foregoing definitions of trespass, nuisance,
and negligence in conjunction with the modified common law rule
applicable to surface water, we hold that the trial court did
not err in sustaining the Cordovanas’ and 1273 WOV’s demurrers
as to Collett’s claims for trespass and nuisance.
Collett’s second amended consolidated complaint only
contains specific factual allegations that (1) the Cordovanas
added gravel to their parking lot and graded it and (2) 1273 WOV
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put mulch on their property and “made other modifications” to
the property. Collett had the burden to allege sufficient facts
that would support a finding “that in filling in [their] lot[s]
the defendant[s] acted wantonly, unnecessarily, or carelessly.”
Mason, 189 Va. at 355, 53 S.E.2d at 10. We have held that a
property owner may, in the reasonable development of his
property, grade it and not be liable for discharging the
additional diffused surface water. Miller, 226 Va. at 589, 311
S.E.2d at 112. Because the only facts in this case indicate
that the defendants dumped gravel and/or put down mulch, Collett
failed to plead any facts from which one could conclude that the
defendants acted recklessly or carelessly in modifying their
properties.
Collett’s reliance on Kurpiel in support of her argument
that she asserted valid causes of action is misplaced. In
Kurpiel, the amended complaint alleged that the defendants’ acts
were “careless, and unnecessary.” Kurpiel, 284 Va. at 356, 731
S.E.2d at 926. Unlike Collett, Kurpiel alleged numerous facts
which were sufficient to survive demurrer. Specifically,
Kurpiel alleged that the defendants’ actions were
careless, and unnecessary because they: (1)
stripped their land “of virtually all
vegetation, including unauthorized removal
of vegetation within the Resource Protection
Area, a protected land disturbance zone
established by the Chesapeake Bay
Preservative Act”; (2) “cleared and/or
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improperly disturbed these protected areas”
on their property; (3) “excessively cleared
[their land] in violation of state law and
County regulations”; (4) “did extensive
regrading of the property”; (5) changed the
elevation of the property; (6) “brought in
additional fill dirt”; (7) “left the land
unvegetated longer than necessary”; (8)
demanded the Kurpiels remove plantings along
the property border, and then “replaced such
plants with insufficient and inadequate
vegetative cover”; (9) did not use proper
drainage controls; and (10) “failed to
control sediment loads and siltation running
onto the Kurpiel[s’] property.”
Id. (emphasis added). In contrast, Collett’s complaint merely
states a legal conclusion that “the manner in which the
defendants’ property has been developed, maintained and altered
has been unreasonable, careless and reckless”, and “must be
viewed as being beyond merely negligent” but fails to state any
facts that support her claims.
Collett also argues that pursuant to Rule 3:18, she merely
had to raise “[a]n allegation of negligence . . . without
specifying the particulars of the negligence.” However, because
this case applies the modified common law rule applicable to
surface water, Collett must allege some negligent action or
actions on behalf of the Cordovanas and 1273 WOV. A simple
factual recitation that the Cordovanas and 1273 WOV did what the
common law allows them to do in maintaining their properties and
a bare legal conclusion that they did so negligently is
insufficient. Collett’s complaint contains no facts to support
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a finding of negligence by the Cordovanas or 1273 WOV when they
modified their properties as permitted under Virginia’s modified
common law rule regarding surface water.
Accordingly, we hold that Collett’s complaint failed to
state a valid cause of action for trespass, nuisance, and
negligence, and the trial court did not err in sustaining the
demurrers filed by the Cordovanas and 1273 WOV.
B. Negligence per se
The doctrine of negligence per se represents
the adoption of “the requirements of a
legislative enactment as the standard of
conduct of a reasonable [person].” Butler
v. Frieden, 208 Va. 352, 353, 158 S.E.2d
121, 122 (1967). The elements of negligence
per se are well-established. First, the
plaintiff must prove that the defendant
violated a statute enacted for public
safety. Second, the plaintiff must belong
to the class of persons for whose benefit
the statute was enacted, and demonstrate
that the harm that occurred was of the type
against which the statute was designed to
protect. Third, the statutory violation
must be a proximate cause of plaintiff's
injury.
The first and second of these elements
are issues of law to be decided by a trial
court . . . .
Kaltman v. All American Pest Control, Inc., 281 Va. 483, 496,
706 S.E.2d 864, 872 (2011) (citations omitted).
Collett relies on two Norfolk Ordinances as support for her
negligence per se claims. Norfolk City Code § 27-2(a) defines
public nuisance. Norfolk City Code § 36-17(b) prescribes lot
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drainage regulations under the rat and mosquito control chapter.
Neither ordinance contains a provision for a private right of
action like that asserted by Collett. Nor is Collett a member
of the class of persons these ordinances were designed to
protect. Furthermore, Collett has only asserted that her
property has increased surface water due to the fact that the
Cordovanas dumped gravel on a parking lot and graded the gravel
and that 1273 WOV dumped mulch on their property. None of the
assertions made by Collett constitute a public nuisance under
Norfolk City Code § 27-2(a). Likewise, none of the assertions
made by Collett fall under the rat and mosquito control sections
of Norfolk City Code § 36. The purpose of both Norfolk
Ordinances is “to protect the public against hazards created” by
public nuisances (section 27) and by rats and mosquitos (section
36). Butler, 208 Va. at 354, 158 S.E.2d at 123.
Accordingly, Collett’s complaint failed to state a valid
cause of action for negligence per se against the Cordovanas and
1273 WOV.
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
the trial court.
Affirmed.
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