UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AMBER DAVIS, an infant who sues

by her next friend Evan Davis;

EVAN DAVIS, on his own behalf,

Plaintiffs-Appellants,

No. 94-2612

v.

BIRDNECK VILLAGE ASSOCIATES,

Defendant-Appellee.

AMBER DAVIS, an infant who sues

by her next friend Evan Davis;

EVAN DAVIS, on his own behalf,

Plaintiffs-Appellees,

No. 94-2613

v.

BIRDNECK VILLAGE ASSOCIATES,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Virginia, at Norfolk.

William T. Prince, Magistrate Judge.

(CA-94-329-2)

Argued: January 29, 1996

Decided: April 23, 1998

Before WIDENER and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
COUNSEL

ARGUED: Latane Ware Brown, CHANDLER, FRANKLIN &

O'BRYAN, Norfolk, Virginia, for Appellants. Richard Joshua Cromwell, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond, Virginia, for Appellee. ON BRIEF: Mary Jane Hall,

CHANDLER, FRANKLIN & O'BRYAN, Norfolk, Virginia, for

Appellants. F. Bradford Stillman, Charles G. Meyer, III, MCGUIRE,

WOODS, BATTLE & BOOTHE, L.L.P., Richmond, Virginia, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

On April 11, 1993 the plaintiff, Amber Davis, fell off of the second

story balcony of the apartment that her parents rented in Virginia

Beach, Virginia. The apartment is in a complex owned by the defendant, Birdneck Village Associates, a Virginia partnership. Amber,

who was two years old at the time of the incident, filed this diversity

action in the district court by her next friend Evan Davis, her father.1

The Davises lived in Connecticut at the time they filed the suit. The

parties consented to have the case decided by a magistrate judge pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.

Both parties now appeal from the court's order dated November 14,

1994, which granted summary judgment in favor of Birdneck Village.

I.

The Birdneck Village apartment complex was built in 1968. The

_________________________________________________________________

1 Mr. Davis also joined the suit on his own behalf to recover for

Amber's past and future medical bills.

 2
Davises moved into a second floor apartment in July 1992. On April

11, 1993, Amber and her mother were alone in the apartment. Mrs.

Davis answered the telephone and soon heard a noise. She saw that

the screen door leading to the balcony was open and when she went

to the balcony, she found Amber lying on the ground below. Nobody

witnessed Amber's accident, and nobody knows whether Amber fell

through the balcony railing or climbed over it.

The balcony railing is composed of two six-inch wide steel rails

that run horizontally across the balcony. Three groups of nine onehalf inch wide, twenty-four inch tall steel balusters run vertically. The

distance between each baluster and between the brick walls on each

end of the balcony and the balusters range from four and one-fourth

to five and five-eighths inches. When Birdneck Village Associates

built the apartment complex, the building code required spaces of no

more than six inches between the balusters.2 The building code in

effect at the time of the incident required spaces between the balusters

such that a sphere with a diameter of four inches could not pass through.3

The court granted the defendant summary judgment because the

plaintiffs failed to allege facts that showed that the defendant

breached the standard of care required by the Virginia Residential

Landlord and Tenant Act, Va. Code § 55-248.2 et seq. Under the Act,

the defendant owed plaintiffs the duties to "[c]omply with the requirements of applicable building and housing codes materially affecting

health and safety" and to "[m]ake all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition."

Va. Code § 55-248.13. The court determined that Birdneck Village

complied with the building codes because the new building code did

not require retroactive application to existing buildings unless serious

dangers existed or the condition was unsafe or unhealthy. The court

also determined that the Davises had not shown any facts to prove

that the building was unfit or uninhabitable so that Birdneck Village

would be required to make repairs.

_________________________________________________________________

2 The Southern Standard Building Code was adopted by the City of

Virginia Beach in 1965.

3 The building code in effect at the time of the incident was the Uniform Statewide Building Code with the 1990 amendments. Va. Code

§ 36-97 et seq.

 3
The Davises allege that because Amber's head had a diameter of

five inches and some balusters were five and five-eighths of an inch

apart, Amber fell through the balusters. The Davises further allege

that had the balcony been in compliance with the current building

code, Amber would not have been able to fit through the balusters.

On appeal, they argue that the court should not have granted summary

judgment for the defendant because factual issues exist as to whether

the balcony was unsafe and unfit and whether Birdneck Village did

whatever was necessary under the Virginia Residential Landlord and

Tenant Act to fix the balcony.

Birdneck Village cross-appeals and claims that the court erred in

not granting summary judgment based on the following three reasons:

(1) the Davises cannot make out a prima facie case of negligence by

showing why and how the accident happened, (2) Birdneck Village

did not have notice of the alleged hazardous condition, and (3) the

alleged hazardous condition was open and obvious. 4

II.

We review a grant of summary judgment de novo . In re Bulldog

Trucking, Inc., 66 F.3d 1390, 1395 (4th Cir. 1995). Summary judgment cannot lie if "the evidence is such that a reasonable jury could

return a verdict for the nonmoving party." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). Summary judgment is mandated,

however, if after an adequate discovery period, the nonmoving party

"fails to make a showing sufficient to establish the existence of an

element essential to that party's case, and on which that party bears

the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). Based on our review of the record, we find that the court

correctly granted summary judgment for the defendant.

III.

The Davises allege that Birdneck Village breached its duty to "have

its leased premises in a fit and habitable condition and to maintain its

premises in compliance with the requirements of applicable building

_________________________________________________________________

4 The cross-appeal, case No. 94-2613, is moot and is dismissed for that

reason.

 4
and housing codes materially affecting health and safety." Complaint

¶ 6. The Virginia Residential Landlord and Tenant Act requires landlords to: (1) "[c]omply with the requirements of applicable building

and housing codes materially affecting health and safety," and (2)

"[m]ake all repairs and do whatever is necessary to put and keep the

premises in a fit and habitable condition." Va. Code § 55-248.13.5 To

determine whether Birdneck Village complied with the applicable

building codes, we must first determine which building codes are

applicable.

Potentially applicable building codes include the Southern Standard Building Code, which was in effect when Birdneck Village was

constructed, the Uniform Statewide Building Code (USBC) Volumes

I and II with 1990 amendments, which were in effect at the time

Amber fell off the balcony, and the BOCA National Building Code

and BOCA National Property Maintenance Code, which the Virginia

Board of Housing and Community Development incorporated into the

USBC.6 Section 1108(b) of the Southern Standard Building Code prohibited spaces more than six inches wide between the balusters. Thus,

when built, Birdneck Village was in compliance with the applicable

regulation. The USBC Volume I, which incorporates the BOCA

Building Code, 1990 Edition, is titled "New Construction Code" and

applies to "all buildings . . . which are constructed, altered, repaired

or converted in use after March 1, 1991." USBC Vol. I § 100.6. Section 824.3 of the BOCA Building Code contains the requirement that

_________________________________________________________________

5 The Davises claim that the court incorrectly determined that Birdneck

Village owed Amber only the standard of care set forth in the Virginia

Residential Landlord and Tenant Act. Although the Davises cite a Virginia innkeeper case and Georgia and Illinois landlord cases, the Davises

do not cite any Virginia law that supports the proposition that landlords

owe infant tenants a greater duty of care than they owe adult tenants. Virginia law actually supports the proposition that landlords do not owe

infant tenants any greater duty of care. See Wagman v. Boccheciampe,

143 S.E.2d 907, 910 (Va. 1965) (refusing to shift duty of supervising

child from parents to landlord); Berlin v. Wall , 95 S.E. 395 (Va. 1918)

(declining to distinguish between infant and adult tenants).

6 Virginia Code § 36-98 authorizes the Board of Housing and Community Development to adopt and promulgate a Uniform Statewide Building Code.

 5
"open guards shall have balusters or other construction such that a

sphere with a diameter of 4 inches (102 mm) cannot pass through any

opening." Birdneck Village was constructed in 1968, therefore, the

USBC Volume I and the BOCA Building Code are not applicable.7

The USBC Volume II, which incorporates the BOCA National

Property Maintenance Code, 1990 Edition, is titled"Building Maintenance Code" and contains maintenance regulations for existing buildings. See USBC Vol. I § 100.1 note; USBC Vol. II §§ 101.1, 100.6.

Section 100.6 of the Building Maintenance Code specifically states

"[n]o provisions of the Building Maintenance Code shall require alterations to buildings or equipment unless an unsafe or unhealthy condition exists." USBC Vol. II § 100.6. Section 103.5 of the Maintenance

Code, titled "Unsafe conditions not related to maintenance," also

states that "[t]he Building Maintenance Code does not generally provide for retrofitting existing buildings. However, conditions may exist

in older buildings, because of faulty design or equipment, that constitute such serious and dangerous hazards that correction is necessary

to protect life and health." USBC Vol. II § 103.5 note. This section

provides that upon finding "a serious and dangerous hazard to life or

health in a building which was constructed, altered, converted, or

repaired before the effective date of the initial edition of the USBC,"

the code official may order changes to correct the condition, so long

as the condition was not caused by faulty maintenance or a failure to

comply with applicable regulations. USBC Vol. II§ 103.5.

The Davises acknowledge that the only evidence that the balcony

was unsafe was that the new building code required less than four

inches between balusters while the old code allowed six inches. The

Davises did not provide evidence that a code official found the six

inch wide balusters unsafe under USBC Vol. II § 103.5. They assert

that because Amber fell off of the balcony, this is evidence that the

balusters were unsafe. This is not true because the plaintiff has no evidence that Amber fell through the balusters; Amber might have

climbed over the top of the railing rather than through the rails. The

Davises ask us to presume that Amber fell through the balusters and

then infer from that that the balcony was unsafe. The Virginia

_________________________________________________________________

7 We have no evidence that Birdneck Village was altered, repaired, or

converted in use after March 1, 1991.

 6
Supreme Court has stated that "[a]n inference cannot be drawn from

a presumption, but must be founded upon some fact legally established." Chesapeake & Ohio Ry. Co. v. Heath , 48 S.E. 508, 509 (Va.

1904). The new building code does not require landlords of existing

buildings to make any changes "unless an unsafe or unhealthy condition exists." USBC Vol. II § 100.6. Without evidence of an unsafe or

unhealthy condition, the Davises have not shown that Birdneck Village breached a statutory duty. Likewise, the plaintiffs presented no

evidence that the balcony was in an unfit or uninhabitable condition.

The Davises cannot establish a prima facie case without proving that

Birdneck Village breached a duty.

Without a witness, the plaintiffs have no evidence to prove that

Amber actually fell through the balcony railing. Without evidence

connecting the railing to Amber's fall, the plaintiffs cannot prove causation in fact. Under Virginia law, the Davises"must show why and

how the accident happened. And if the cause of the accident is left to

conjecture, guess, or random judgments, the plaintiff cannot recover."

Sneed v. Sneed, 244 S.E.2d 754, 755 (Va. 1978).

In sum, we affirm for the reasons stated above, which are not

essentially different from those stated by the district court.

AFFIRMED

 7