EMERALD POINT, LLC, ET AL.
LINDSEY HAWKINS, ET AL.
THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH James C.
Present: Lemons, C.J., Mims, McClanahan, Powell, Kelsey, and
McCullough, JJ., and Koontz, S.J.
LAWRENCE L. KOONTZ, JR. SENIOR JUSTICE.
appeal arises from a jury verdict in favor of the tenants of
an apartment in a premises liability action against the
defendants, their landlord and its management company, for
injuries alleged to have been caused by carbon monoxide
principles of appellate review guide our analysis in this
case. As the prevailing parties in the trial court, the
plaintiffs are entitled to have the evidence and all
inferences reasonably drawn from it viewed in the light most
favorable to them. Norfolk S. Ry. Co. v. Rogers, 270
Va. 468, 478, 621 S.E.2d 59, 65 (2005). Indeed, as they come
armed with a jury verdict approved by the circuit court, the
plaintiffs occupy the "most favored position known to
the law." Bennett v. Sage Payment Solutions,
Inc., 282 Va. 49 54, 710 S.E.2d 736, 739 (2011)
(internal quotation marks omitted). In this context, and
because the issues raised by the landlord and its management
company on appeal are limited to challenging specific rulings
of the trial court, initially we shall recite only the record
evidence necessary to establish the foundation for our
analysis of those asserted errors.
Hawkins, Paul Harmon, Thomas Zamaria, and Edward Guire
(collectively, the "tenants") were co-tenants of
the apartment unit located at 2163 Dumbarton Drive in the
Emerald Point Apartments in Virginia Beach (the
"City"), which is managed by The Breeden Company,
Inc. ("Breeden") for the owner, Emerald Point, LLC.
The unit was heated by a natural gas furnace. On the evening
of November 26, 2012, the alarm in the carbon monoxide
detector in the unit sounded. A maintenance worker sent by
Breeden later that night replaced the batteries in the
device, indicating to the tenants that he believed the alarm
was merely due to low battery power in the detector, rather
than a malfunction in the furnace. Shortly after the
maintenance worker left, however, the alarm sounded again.
following morning, Hawkins called Virginia Natural Gas
("VNG") about the alarm. VNG dispatched an
inspector, Charles Basnight, to the apartment. Basnight
measured the CO levels in the apartment at 37 parts per
million ("ppm"), a rate significantly higher than
the normal range and hazardous to human health. Basnight then
turned off the gas supply to the furnace and "red
tagged" it as the suspected source of the CO leak.
On the red tag Basnight indicated that the issue might be a
cracked heat exchanger in the furnace.
that day, Breeden sent maintenance worker Calvin Morris to
the tenants' apartment to assess the problem. Morris
declared on a City code enforcement corrective action form
that he had "[c]hecked furnace for CO
leaks, checked vent pipes for leaks, found vent pipe in attic
to 2163, loose[.] Reattached and secured, rechecked
CO level it was at 0."
not licensed to make repairs to heating systems, Morris
repaired the vent pipe by using zip screws to secure the
sections of the pipe together, which is contrary to
manufacturer specifications. Morris later returned to the
apartment with Danny Carlson, a code enforcement officer from
the City, who likewise determined that the CO levels were
within the acceptable range. Carlson did not go into the
attic or otherwise inspect the furnace, flue or vents.
Carlson then permitted the red tag to be removed from the
early morning hours of January 4, 2013, the alarm in the
apartment's carbon monoxide detector sounded again.
Although a maintenance worker found no elevated CO readings
when sent to the apartment, later that day a VNG inspector
found that the CO readings were beyond the acceptable range
and again red tagged the furnace.
same day, Breeden hired a heating and air conditioning
contractor to replace the furnace. However, once the new
furnace was installed, the CO levels in the tenants'
apartment remained high. An inspection in the attic above
their apartment resulted in the discovery that the flue of
the furnace in the adjoining apartment was not properly
connected and was venting exhaust, including CO, into the
attic. When this flue was repaired, CO levels in the
tenants' apartment returned to an acceptable level.
purposes of this appeal, it is not disputed that the tenants
suffered injuries from being exposed to CO gas. Harmon,
Zamaria and Guire suffered relatively minor injuries, while
Hawkins' injuries were of a more extensive and permanent
November 13, 2014, the tenants filed a joint complaint
against Breeden and Emerald Point, LLC (hereafter
collectively, the "landlord") in the Circuit Court
of the City of Virginia Beach. Alleging that the CO exposure
resulted from faulty maintenance of the furnace and the
associated vent and flue system and that this exposure
resulted in their injuries, Harmon, Zamaria and Guire each
sought $100, 000 in compensatory damages and $350, 000 in
punitive damages. Hawkins sought $5, 000, 000 in compensatory
damages and $350, 000 in punitive damages. The claims for
punitive damages were based on an assertion that the landlord
had been willful and wanton in failing to maintain the
furnace and in failing to employ competent staff.
conclusion of the presentation of the evidence at a four-day
trial held from May 16 through May 19, 2016, the circuit
court ruled that the tenants had failed to establish the
requisite level of negligence for punitive damages. Harmon,
Zamaria and Guire then were permitted, over the objection of
the landlord, to increase their ad damnum prayers for
compensatory damages to $450, 000. The jury returned its
verdicts for the tenants, awarding Harmon, Zamaria and Guire
$200, 000 each and $3, 500, 000 to Hawkins. The court entered
final judgment in accord with the jury's verdicts in an
order dated June 17, 2016. This appeal followed.
awarded the landlord an appeal on the following assignments
1. The Trial Court erred in admitting the testimony of Dr.
Allan Lieberman that had not been disclosed in accordance
with Rule 4:1(b)(4)(A)(i).
2. The Trial Court erred in granting an adverse inference
jury instruction based on the disposal of the furnace because
there was no finding of bad faith, the Defendant had no
reason to foresee that the furnace would be material evidence
in litigation because all of the evidence indicated the leaks
were from the flue pipes, and Plaintiffs failed to present
evidence that the furnace was material.
3. The Trial Court erred in admitting the irrelevant and
prejudicial testimony of Alan Moore regarding alleged defects
in the installation of the new furnace and piping, where such
defects were after-the-fact and patently not the cause of the
carbon monoxide leak.
4. The Trial Court erred in overruling Defendants' Motion
to Drop Misjoined parties where each of the four plaintiffs
had distinct and ...