VIRGINIA: Homeowners May Sue Pest Control Company For Use of Unapproved Pesticide

In the case of Kaltman v. All American Pest Control, Inc., the Plaintiffs sued the Defendant pest control company after the company’s employee treated the couple’s home with a pesticide that was not approved for residential use.  On appeal, the Virginia Supreme Court considered whether the trial court had erred in sustaining the Defendants’ demurrers (motions to dismiss a claim) to the Plaintiffs’ claims of negligence, willful and wanton conduct, and negligence per se.  On appeal, the Court found:

1. That the Plaintiffs did state a claim for negligence by the pest control company employee in applying a pesticide that was not licensed and approved for use in a residential setting, and in applying a commercial pesticide without a commercial pesticide certification or without first being registered as a pest control technician as required by Code §3.2-3930(A);

2. That the Plaintiffs did not state a viable claim for willful and wanton conduct, since the alleged wrongful act of the pest control company employee’s failure to “thoroughly clean his pesticide application equipment” before applying the pesticide was not so egregious as to rise to the level of willful and wanton conduct; and

3. That the Plaintiffs did state a claim for negligence per se, based on their allegation that the pest control company’s employee had violated former Code §3.1-249.64(A)(1994) which provided, in relevant part, that it is “unlawful for any person to use or cause to be used any pesticide in a manner inconsistent with its labeling.”