PERSONAL INJURY: What Happens When a Landlord Does Not Make Repairs and a Tenant Is Injured as a Result?
David C. Wagoner—Senior Attorney
Most states impose statutory duties on landlords to maintain and repair residential premises in habitable condition during a tenancy. See, e.g., Cal. Civ. Code § 1941 (California); O.C.G.A. § 44-7-13 (Georgia); ALM GL ch. 186, § 19 (Massachusetts); MCLS § 554.139 (Michigan); NY CLS Real Prop. Law § 235-B (New York); 9 V.S.A. § 4457 (Vermont); Va. Code § 55.1-1220 (Virginia); Rev. Code Wash. § 59.18.060 (Washington); W. Va. Code § 37-6-30 (West Virginia); and Wis. Stat. § 704.07 (Wisconsin).
However, can a landlord be held liable in tort for personal injuries suffered by a tenant as a result of a dangerous condition resulting from a landlord’s failure to make repairs? Construing Virginia law, the Fourth Circuit recently considered this question in Metz v. McCarthy, 167 F.4th 722 (4th Cir. 2026).
In Metz, the plaintiff tenant rented a residential house in Arlington, Virginia. During the leasehold, the tenant noticed water leaking through a skylight in the sunroom. She notified the landlord, and the landlord and a contractor inspected the skylight and confirmed that it was leaking, but did nothing to effect a repair. Several months later, after it had snowed and rained, the tenant slipped on water that had accumulated under the skylight, and suffered serious injuries.
The tenant filed a two-count complaint in Virginia state court, alleging both a breach of the lease contract and a tort claim for negligent repairs. Invoking diversity jurisdiction, the landlord removed the case to federal court, and the district court granted the landlord’s Rule 12(b)(6) motion to dismiss the negligence claim. To facilitate her appeal of the dismissal of the negligence claim, the tenant voluntarily dismissed her breach of contract claim.
In considering the tenant’s appeal of the dismissal of the negligence claim, the Fourth Circuit noted first that a tenant in Virginia “does not have a common-law duty of care to maintain or repair a premises when the right of possession and enjoyment has passed to the lessee.” Metz, 167 F.4th at 727 (citing Luedtke v. Phillips, 190 Va. 207, 56 S.E.2d 80 (1949)). However, the court noted further that “Virginia does recognize a common-law tort against a landlord who undertakes to make repairs and does so negligently.” Id. (citing Steward ex rel. Steward v. Holland Fam. Props., LLC, 284 Va. 282, 726 S.E.2d 251 (2012)). The court therefore concluded that in order for the tenant to have stated a claim, “she must have alleged that [the landlord] entered the residence to make repairs and then made the repairs in a negligent manner.” Id.
Reviewing the tenant’s complaint in that light, the appellate court held that the district court had correctly found it insufficient to withstand the landlord’s Rule 12(b)(6) motion:
First, the complaint does not allege that McCarthy entered the premises for the purpose of making a repair. Rather, it alleges only that Dennis Metz informed McCarthy that the skylight "appeared to . . . leak"; that "McCarthy sent a contractor to inspect the Skylight"; that "McCarthy was present" for the inspection; and that the contractor confirmed that the skylight was leaking and needed repair. These allegations do not support a plausible claim that McCarthy entered the premises to make repairs. Moreover, the complaint does not allege that repairs were ever undertaken, let alone that McCarthy or the contractor made repairs with positive acts of negligence. Yet, under Virginia law, a landlord can be held liable in tort only if "the landlord makes repairs to the leasehold premises and, in the process of doing so, creates a dangerous condition by 'a positive act of negligence on its part.'" Tingler [v. Graystone Homes, Inc., 298 Va. 63], 834 S.E.2d [244,] 263 [(2019] (emphasis added) (quoting Luedtke, 56 S.E.2d at 83); see also, e.g., Tugman v. Riverside & Dan Cotton Mills, 144 Va. 473, 132 S.E. 179, 180 (Va. 1926). To create liability, the complaint would have to allege that McCarthy or the contractor performed a positive act of negligence while repairing the skylight. Yet, the complaint alleged only that the contractor inspected the skylight and acknowledged that it leaked and needed repair.
Metz, 167 F.4th at 727-728.
Recognizing “the distinction between nonfeasance and misfeasance,” the court noted that a “landlord [can] be liable in tort [only] because of his affirmative wrong in creating a dangerous condition . . . in contrast to a mere failure to do something that one has originally promised to do.” Id. at 728 (quoting Tingler v. Graystone Homes, Inc., 298 Va. 63, 834 S.E.2d 244, 263 (2019). The appellate court therefore affirmed the district court’s dismissal of the tenant’s negligence claim. “While [the tenant] might wish to seek recovery for [the landlord’s] failure to repair the skylight, tort liability in Virginia does not attach to such nonfeasance in the circumstances of a landlord-tenant relationship.” Id. (emphasis in original).
