Alvin and Gwendolyn Kallman retained All American Pest Control (AAPC) to treat and prevent pest infestation at their Virginia home on a quarterly basis. AAPC employee Patric Harrison performed one of the quarterly treatments. Three days before treating the Kaltmans’ home, Harrison had treated a commercial establishment with Orthene pesticide. After applying Orthene at that business, Harrison did not thoroughly clean his pesticide application equipment. As a result, he ended up applying a diluted spray of Orthene to the baseboards and adjoining floor surfaces throughout the Kalman's’ home and to the concrete surfaces in the home’s basement and garage. As the pesticide was being applied, the Kalman's complained to Harrison about the unusual and extraordinarily pungent odor. Harrison told them hat the smell would dissipate, but it did not. Later that day, the Kalman's telephoned AAPC to report their concern about the overwhelming stench. They were told that Harrison had applied an inappropriate pesticide that had a very strong and unpleasant odor. 

The Kaltmans reported the incident to the Virginia Department of Agriculture and Consumer Services (VDACS). During the investigation by VDACS, Harrison admitted that he applied an Orthene dilution to the Kaltmans’ home. Harrison also admitted that he falsified the pertinent work order by documenting that he applied different pesticides. Laboratory analyses performed by VDACS revealed concentrations of acephate a toxic ingredient in Orthene PCO Pellets in the Kaltmans’ home. Exposure to acephate has been shown to cause nerve damage and cancer in laboratory animals. Orthene PCO Pellets are not licensed for residential use by VDACS. The Material Safety Data Sheet required by law for Orthene PCO Pellets states that the product “is not for indoor residential use,” “is for use in places other than private homes,” and should not be used on “unpainted masonry floors in poorly ventilated areas such as garages or basements since persistent odor could develop.” AAPC informed the Kalman's that although the odor from Orthene was unpleasant, it did not represent a health hazard. The Kalman's, therefore, made more than a dozen attempts to eradicate the odor by washing the treated surfaces. They also had their home professionally cleaned. However, high concentrations of acephate remained. Because of the noxious fumes, their home was rendered uninhabitable for a year. 

The Kaltmans sued AAPC and Harrison on a negligence per se theory in an effort to recover damages for their physical and emotional harms and for expenses they incurred. The trial court granted the defendants’ motion to have the “Pest Control Service Agreement” between the plaintiffs and AAPC made part of the pleadings. This agreement listed the pests to be controlled and stated that AAPC would “apply chemicals to control above-named pests in accordance with terms and conditions of this Service Agreement. All labors and materials will be furnished to provide the most efficient pest control and maximum safety required by federal, state and city regulations.” AACP and Harrison then filed demurrers to the negligence per se claim (i.e., they asked the court to dismiss the Kaltmans’ complaint for failure to state a valid course of action against them). The defendants argued that any duties they owed the plaintiffs stemmed from the parties’ contract and that the plaintiffs, therefore, could not assert a negligence per se claim. The trial court sustained the defendants’ demurrers. Was the trial court correct in doing so? Were the Kaltmans entitled to proceed on a negligence per se theory?