UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEFFREY L. MILLER, Personal
Representative of the Estate of
Meredith E. Miller, Deceased,
Plaintiff-Appellant,
                                                                     No. 96-2636
v.

CHARLES E. SMITH MANAGEMENT,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-96-1209-A)

Argued: March 4, 1998

Decided: January 26, 1999

Before WIDENER and MOTZ, Circuit Judges, and MOON,
United States District Judge for the Western District of Virginia,
sitting by designation.

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Affirmed in part, reversed in part and remanded by unpublished per
curiam opinion.

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COUNSEL

ARGUED: Michael Hersch Gottesman, GEORGETOWN LAW
CENTER, Washington, D.C., for Appellant. John Henry Carstens,
JORDAN, COYNE & SAVITS, Fairfax, Virginia, for Appellee. ON
BRIEF: Robert F. Muse, Richard A. Bussey, Christopher H. Mitch-
ell, STEIN, MITCHELL & MEZINES, Washington, D.C., for Appel-
lant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Jeffrey L. Miller, Personal Representative of the Estate of Meredith
E. Miller ("the Estate"), brought suit against Charles E. Smith Man-
agement, Inc. ("Smith") under Virginia's Wrongful Death Act, Vir-
ginia Code § 8.01-50 et seq. The Estate alleges that Smith's
representatives made false representations to the Estate's decedent,
Meredith Miller ("Miller"), about the safety of its apartment building
and the steps it would take to protect her against crime with the intent
to induce Miller to enter a lease agreement with Smith. The Estate
further alleges that Smith explicitly assumed duties to protect Miller
which it performed in a negligent manner. The Estate contends that
Smith's acts were a proximate cause of Miller's death. Smith filed a
motion to dismiss for failure to state a claim, which the district court
granted. The Estate now appeals the district court's dismissal of the
case. We affirm in part, and reverse in part and remand.

I.

Miller moved to the Washington, D.C. area in June 1994 to attend
graduate school. She, her mother, and her roommate went apartment
hunting together and spoke with Smith's agent about an apartment in
Smith's Crystal House I complex in Alexandria, Virginia. The Estate
alleges that, as a young single woman, Miller made her personal
safety the paramount consideration in deciding where to live, and that
because she was unfamiliar with the Washington metropolitan area,

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she relied on Smith's agent's representations concerning the area's
safety.

The Estate alleges that Smith's agent made several false represen-
tations to the three women in order to induce Miller and her room-
mate to enter into a lease agreement. The agent addressed their safety
concerns by representing, among other things, that there was no his-
tory of significant crime or violence on or near the premises of Crys-
tal House I; that if such activity ever occurred on or near the premises,
Smith would promptly notify tenants so they could take additional
safety precautions; that Smith had security guards on constant patrol
of the premises; and that it was not necessary to rent a parking space
in the complex's underground lot because the outdoor lot was equally
safe. Miller and her roommate then entered into a lease agreement
with Smith for an apartment at Crystal House I.

Two months later, two women in a car were robbed at gunpoint in
an area adjacent to Crystal House I's outdoor parking lot. Smith was
immediately notified but failed to alert its tenants, including Miller.

On October 17, 1994, Miller parked her car in the outdoor parking
lot. Upon exiting her car, she was assaulted, shot, and killed by two
unknown assailants as they attempted to steal her car.

The Estate contends that each of Smith's agent's representations to
Miller regarding the safety of Crystal House I and the surrounding
area was false. It asserts that the security of the building's interior was
easily breached by intruders, resulting in numerous crimes perpetrated
upon tenants or their property; that the exterior of the building was
not safe and that numerous crimes had been committed against ten-
ants or their property in the outdoor parking lot, where patrolling by
security personnel was inadequate and often nonexistent; that the
premises and vicinity of Crystal House I has an extensive history of
crime because the neighborhood was attractive to criminals and the
area was inadequately secured; that Crystal House I was no safer from
criminal activity than other more convenient areas in which Miller
might have chosen to live but for Smith's misrepresentations; that the
defendant failed to notify Miller and other tenants of several incidents
of serious criminal activity on or near the premises of which it was

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aware and that Smith had no such notification policy; and that the out-
door parking lot was not as safe as the underground lot.

The Estate sued Smith to recover for Miller's death based on
Smith's alleged breach of express warranty,* fraudulent misrepresen-
tation, negligence, and violation of the Virginia Consumer Protection
Act, Virginia Code § 59.1-196 et seq. The district court found that
Smith was not liable for the acts of the third-party assailants because
the special circumstances which could create such liability were not
present and the damages claimed were not proximately caused by the
breach of duties alleged. Accordingly, it held that the alleged state-
ments do not support a claim for breach of express warranty, fraudu-
lent misrepresentation, or negligent misrepresentation, or a claim
under the Virginia Consumer Protection Act.

II.

A landlord in Virginia generally holds no duty to protect a tenant
from the criminal acts of a third party. Dean v. Charles E. Smith Man-
agement, Inc., 799 F.2d 944, 945 (4th Cir. 1986); Klingbeil Manage-
ment Group, Inc. v. Vito, 233 Va. 445, 447-48, 352 S.E.2d 200, 201
(1987); Gulf Reston Inc. v. Rogers, 215 Va. 155, 157, 207 S.E.2d 841,
844 (1974). The Supreme Court of Virginia has recognized two situa-
tions in which liability may be found. In Richmond Medical Supply
Co. Inc. v. Clifton, 235 Va. 584, 587, 369 S.E.2d 407, 409 (1988), the
Supreme Court held that a landlord may contractually assume the
duty to protect a tenant from criminal activity. In this case, however,
no such contractual obligation is alleged. In Gupton v. Quick, 247 Va.
362, 363, 442 S.E.2d 658, 659 (1994), the Supreme Court held that
a business invitor who knows of imminent danger to a business
invitee owes a duty to protect the invitee. The facts of this case,
involving only sporadic acts of criminal conduct, are insufficient to
charge the landlord with notice of imminent danger to the plaintiff's
decedent. See id.; Wright v. Webb, 234 Va. 527, 533, 362 S.E.2d 919,
922 (1987). We decline to extend the landlord's liability beyond the
limits set by the Supreme Court of Virginia, and therefore affirm as
to the assumption-of-duty claim.
_________________________________________________________________
*Because the Estate did not challenge the district court's dismissal of
its breach-of-warranty claim, we do not address that issue.

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III.

To establish a claim for fraudulent misrepresentation, a plaintiff
must allege (1) a false representation, (2) of a material fact, (3) made
intentionally and knowingly, (4) with an intent to mislead, and (5)
reliance by the party misled, (6) resulting in damage to her. Thompson
v. Bacon, 245 Va. 107, 111, 425 S.E.2d 512, 514 (1993). The com-
plaint alleges that Smith intentionally and knowingly made numerous
false representations to Miller with an intention to mislead her and
thereby induce her to rent its apartment. The complaint alleges that
Smith represented to Miller that if significant criminal activity ever
occurred on or near the premises, Smith would notify its tenants
promptly; that there was no history of significant crimes on or near
the premises; that roaming security guards were on constant patrol;
and that the outdoor parking lot was equally as safe as the under-
ground lot.

Although a promise of future performance is not actionable in a
claim for fraudulent misrepresentation, see Colonial Ford Truck Sales
v. Schneider, 228 Va. 671, 676, 325 S.E.2d 91, 94 (1985), such a
promise can support a claim for fraud if there is no intention to per-
form at the time the promise is made. See, e.g., id. The Estate alleges
that Smith's policy was to create an appearance of security and then,
if challenged about the adequacy of security, disclaim that it provided
any security. Because evidence at trial might prove that Smith had no
intention to perform its promise that it would notify tenants of signifi-
cant criminal activity and that roaming security guards would be on
constant patrol, these promises could provide a basis for the fraudu-
lent misrepresentation claim. Furthermore, the allegation that roaming
security guards were on constant patrol is also a statement of material
fact that could support the claim. See also Luedtke v. Phillips, 190 Va.
207, 211, 56 S.E.2d 80, 82 (1949) (noting that a landlord may be lia-
ble for personal injuries to a tenant caused by a third party where the
landlord's fraud led the tenant to believe that the premises were in a
safer condition than they actually were).

IV.

Because we hold that a claim for fraud may be established based
on the allegations contained in the complaint, we also reverse the dis-

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trict court's dismissal of the claim under the Virginia Consumer Pro-
tection Act. See Virginia Code § 59.1-199(E) (providing that a claim
otherwise governed by the Virginia Residential Landlord and Tenant
Act may proceed under the Consumer Protection Act where fraud
exists).

V.

The court also held that the misrepresentation claims fail because
the attack on Miller was not foreseeable and thus did not proximately
cause her death. Proximate cause is ordinarily a question of fact for
the jury, Brown v. Koulizakis, 229 Va. 524, 531, 331 S.E.2d 440, 445
(1985), and only when reasonable minds could not differ about such
issues do they become questions to be decided by a court. Hadeed v.
Medic-24, Ltd., 237 Va. 277, 285, 377 S.E.2d 589, 593 (1989). If, as
the complaint alleges, Miller would not have placed herself in poten-
tially perilous situations such as that which resulted in her death had
she not relied on Smith's assurances, a jury might reasonably con-
clude that Smith's acts proximately caused her death. Therefore, we
reverse and remand as to the misrepresentation claims arising from
the alleged promises to notify and to supply security guards and the
statements concerning the presence of security guards.

VI.

Because the final statement on which the Estate seeks to base this
claim--that there "was no history of significant crime or violence on
or near the premises"--is an opinion, we affirm the district court's
holding that that assertion fails to support a claim of fraudulent mis-
representation. See Piedmont Trust Bank v. Aetna Casualty & Surety
Co., 210 Va. 396, 399, 171 S.E.2d 264, 267 (1969).

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

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