Abandonment on Appeal Can Cure Nonfinal Rule 41 Dismissals; Virginia Landlord Tort Liability Requires Negligent Repair (Not Mere Inspection or Failure to Repair)

Introduction

In Cheryl Metz v. Laurie McCarthy (4th Cir. Feb. 25, 2026), Cheryl Metz, a residential tenant in Arlington, Virginia, sued her landlord, Laurie McCarthy, after Metz slipped on water that accumulated beneath a leaking skylight and sustained serious injuries. Metz asserted two theories: (i) breach of contract (Count I), grounded in the lease and the Virginia Residential Landlord Tenant Act, and (ii) common-law negligence (Count II), framed as negligent repair (or negligent undertaking) based on the landlord’s inspection and subsequent inaction.

The district court dismissed the negligence claim but allowed the contract claim to proceed. To appeal immediately, the parties stipulated to a voluntary dismissal of the surviving contract count, but the stipulation did not specify “with prejudice,” raising appellate jurisdiction concerns under the Fourth Circuit’s recent finality jurisprudence.

The Fourth Circuit (Niemeyer, J.) addressed two core issues: (1) whether it had appellate jurisdiction given the procedural posture; and (2) whether Virginia tort law permits a tenant to recover in negligence where the landlord inspected a known defect but never undertook repairs and never performed a “positive act” creating or worsening the danger.

Summary of the Opinion

The Fourth Circuit affirmed. It held:

  • Appellate jurisdiction existed because Metz made a binding on-appeal representation that she had “abandoned” the contract claim with no intent to revive it, which the court treated as the functional equivalent of a dismissal with prejudice for finality purposes.
  • The negligence claim was properly dismissed because, under Virginia law, a landlord generally has no common-law duty to repair after possession transfers to the tenant, and tort liability arises only when the landlord undertakes repairs and performs them negligently via a “positive act of negligence.” An inspection (without commencing repair) and a failure to repair amount to nonfeasance, not actionable misfeasance in tort on these facts.

Analysis

Precedents Cited

1) Federal appellate jurisdiction and “manufactured finality”

The court’s jurisdiction discussion is anchored in the final-judgment rule under 28 U.S.C. § 1291 and the Fourth Circuit’s skepticism of attempts to create appealability by dropping remaining claims without meaningful finality.

  • Jones v. U.S. Merit Systems Protection Board, 103 F.4th 984, 992-96 (4th Cir. 2024): The court relied on Jones to frame the finality inquiry and to explain when dismissal of remaining claims can (or cannot) create appellate jurisdiction. Jones recognizes jurisdiction where a party’s dismissal prevents it “from bringing the claim[] again, no matter the outcome of the appeal,” i.e., when finality is real, not illusory.
  • Kiviti v. Bhatt, 80 F.4th 520, 530 (4th Cir. 2023): Used to underscore that dismissal of only one claim in a multi-claim action is not final, and that a voluntary dismissal without prejudice fails to create finality because the claim can be reinstated “down the line.”
  • Catlin v. United States, 324 U.S. 229, 233 (1945): Supplies the canonical definition of a “final decision” as one that ends the litigation on the merits and leaves nothing but execution of judgment.
  • Persuasive authority from other circuits supporting jurisdiction where the appellant unequivocally disclaims revival of dismissed claims:
    • Jewish People for the Betterment of Westhampton Beach v. Vill. of Westhampton Beach, 778 F.3d 390, 394 (2d Cir. 2015)
    • Erie Cnty. Retirees Ass'n v. Cnty. of Erie, 220 F.3d 193, 201-02 (3d Cir. 2000)
    • Wesco Ins. v. Roderick Linton Belfance, LLP, 39 F.4th 326, 334 (6th Cir. 2022)
    • India Breweries, Inc. v. Miller Brewing Co., 612 F.3d 651, 657-58 (7th Cir. 2010)
    These cases influenced the Fourth Circuit’s comfort with treating a clear, binding appellate abandonment as the functional equivalent of a with-prejudice disposition for finality.
  • Sprint Nextel Corp. v. Wireless Buybacks Holdings, LLC, 938 F.3d 113, 123 (4th Cir. 2019): Cited for the proposition that parties may stipulate to issues or theories they elect not to pursue, so long as the stipulation remains binding on remand—supporting the enforceability of Metz’s abandonment representation.

Doctrinal takeaway: Although a Rule 41 stipulation that is silent as to prejudice is ordinarily treated as without prejudice (and thus nonfinal), the court accepted an appellant’s unequivocal abandonment—confirmed at oral argument—as curing the finality defect by rendering the dismissal effectively with prejudice.

2) Virginia landlord tort duty: repair vs. failure to repair

The merits analysis is rooted in long-standing Virginia common-law limits on landlord tort liability after transfer of possession, with narrow exceptions.

  • Oden v. S. Norfolk Redev. & Hous. Auth., 125 S.E.2d 843, 845 (Va. 1962): Quoted for the rule that if a landlord enters leased premises to make repairs, the landlord must use reasonable care in performing the work. The district court used Oden to define the negligent-repair duty; the Fourth Circuit agreed the complaint did not plead facts triggering that duty.
  • Luedtke v. Phillips, 56 S.E.2d 80, 82-83 (Va. 1949): Central to Virginia’s baseline rule—after the tenant takes possession, the landlord generally owes no common-law duty to repair or maintain; the tenant “takes the premises in whatever condition they may be in,” assuming the risk of defects (subject to limited exceptions). Luedtke also frames the negligent-repair exception: if the landlord enters to make repairs, he must use reasonable care in making them.
  • Steward ex rel. Steward v. Holland Fam. Props., LLC, 726 S.E.2d 251, 255, 257 (Va. 2012): Cited for two propositions: (1) even where a lease or statute imposes maintenance obligations, that does not automatically create a tort duty; and (2) tort liability exists for negligent repair when the landlord undertakes repairs and performs them negligently.
  • Tingler v. Graystone Homes, Inc., 834 S.E.2d 244, 262-63 (Va. 2019): Provides the court’s key analytical lens: Virginia emphasizes the distinction between nonfeasance (failure to act/perform a promise) and misfeasance (affirmative negligent acts). Under Tingler, landlord tort liability in this context requires “a positive act of negligence” that creates a dangerous condition—mere failure to do what was promised (even if foreseeable harm results) does not itself create a tort duty.
  • Tugman v. Riverside & Dan River Cotton Mills, 132 S.E. 179, 180 (Va. 1926): Reinforces the “positive act of negligence” requirement in negligent-repair settings.

How these precedents controlled the outcome: The Fourth Circuit treated the case as squarely governed by Virginia’s nonfeasance/misfeasance line. The complaint alleged inspection and awareness of the leak, followed by no repair—i.e., nonfeasance. Without allegations that McCarthy entered to make repairs, began repairs, or performed any affirmative negligent act during repairs, the negligent-repair exception never activated.

Legal Reasoning

1) Jurisdiction: converting a nonfinal dismissal into finality through binding abandonment

Procedurally, the district court’s order dismissed only Count II (negligence), leaving Count I (contract) alive. Under § 1291, that is not a final decision. Metz attempted to create finality by stipulating to dismissal of Count I under Rule 41(a)(1)(A)(ii), but the stipulation did not specify “with prejudice.” By Rule 41(a)(1)(B), silence means the dismissal is without prejudice—ordinarily defeating finality because the claim can be refiled.

The Fourth Circuit resolved the problem by treating Metz’s unequivocal representation on appeal—she had “abandoned the breach of contract claim, with no intent in resurrecting it,” and would be bound on remand—as making the dismissal effectively with prejudice. The oral-argument confirmation (“Yes”) further “sealed” the conclusion.

The practical rationale is finality-by-foreclosure: once the appellant is bound not to revive the claim, nothing remains pending, and the appellate court is not issuing an advisory opinion on a partial case that could be reshaped after appeal.

2) Merits: why inspection and inaction did not state negligent repair

On the pleadings, Metz alleged: notice of a leak; an inspection by a contractor with McCarthy present; confirmation that the skylight leaked; and no repair thereafter. She framed negligence as failure to take interim safety measures (tarping, restricting the area) and an unreasonable repair timeline.

The Fourth Circuit held these allegations fail under Virginia law because:

  • No general tort duty to repair after transfer of possession: Under Luedtke v. Phillips and reiterated in Steward ex rel. Steward v. Holland Fam. Props., LLC, a landlord generally owes no common-law duty to maintain or repair premises once the tenant has possession, even if a lease or statute imposes a repair covenant.
  • The negligent-repair exception requires undertaking repairs: The duty described in Oden v. S. Norfolk Redev. & Hous. Auth. and Steward ex rel. Steward v. Holland Fam. Props., LLC arises only when the landlord enters “for the purpose of making repairs” and then must use reasonable care “in performing the work.”
  • Virginia requires misfeasance—a “positive act of negligence”: Under Tingler v. Graystone Homes, Inc. (and Tugman v. Riverside & Dan River Cotton Mills), liability requires an affirmative negligent act in the course of repair that creates or worsens a dangerous condition. The complaint alleged the skylight “remained unrepaired”; it did not allege any affirmative act during repairs because no repair was undertaken.
  • Inspection alone is not enough: The court agreed with the district court’s view that Virginia does not recognize a tort of “negligent inspection” in this setting. Treating inspection as “the first step of repair” was insufficient absent allegations that McCarthy entered to repair, began repair work, or created danger through affirmative conduct.

Impact

1) Appellate practice in the Fourth Circuit: a narrow but meaningful path to finality

This opinion is likely to be cited for a practical jurisdictional rule: when a Rule 41 stipulation dismissing remaining claims is silent as to prejudice (and thus presumptively without prejudice), the appellant may still be able to secure § 1291 finality by an unequivocal, binding abandonment of the dismissed claims, confirmed on the record, such that revival is foreclosed.

The decision also signals limits: the court’s reasoning depends on the appellant’s representation being truly binding “on remand” and functionally equivalent to with-prejudice dismissal. Future litigants should expect scrutiny under Jones v. U.S. Merit Systems Protection Board and Kiviti v. Bhatt if abandonment is ambiguous, conditional, or strategically reversible.

2) Virginia landlord-tenant injury claims: reinforcing the contract/tort boundary

Substantively, the opinion reinforces a sharp boundary in Virginia: failure to repair (even after notice and even if a repair covenant exists) is typically a contract problem, not a tort problem, unless the landlord undertakes repairs and commits a “positive act of negligence.” Plaintiffs attempting to plead negligence based on delay, inaction, or failure to implement interim safeguards face significant headwinds unless they can allege affirmative repair activity that created or exacerbated danger.

Practically, this may push tenant-injury litigation toward: (i) contract claims (including statutory lease-based duties), and (ii) careful factual development of “undertaking” and affirmative acts if tort recovery is sought.

Complex Concepts Simplified

  • Final judgment (28 U.S.C. § 1291): You usually can appeal only after the district court has resolved all claims for all parties. If one claim remains pending, the order is generally not appealable.
  • Rule 41(a)(1)(A)(ii) stipulation of dismissal: A filing signed by all parties that dismisses a claim without needing a court order. If it does not say “with prejudice,” it is treated as without prejudice (meaning it can be refiled).
  • With prejudice vs. without prejudice: “With prejudice” means the claim is permanently gone; “without prejudice” means it may be brought again. Finality for appeal generally requires that leftover claims be disposed of in a way that prevents revival.
  • Nonfeasance vs. misfeasance: Nonfeasance is failing to act (e.g., not fixing a leak). Misfeasance is acting but doing so negligently (e.g., performing a repair in a way that creates a new hazard). Virginia landlord tort liability in this context generally requires misfeasance—a “positive act of negligence.”
  • Demurrer: In Virginia practice, a demurrer challenges whether the complaint states a legally valid claim—similar to a federal Rule 12(b)(6) motion to dismiss.
  • Diversity jurisdiction and removal: McCarthy removed the case from state to federal court because the parties were citizens of different states and the amount in controversy requirement was met (28 U.S.C. § 1332). The federal court applied Virginia substantive law to the state-law tort and contract claims.

Conclusion

Cheryl Metz v. Laurie McCarthy delivers two notable takeaways:

  1. Jurisdictional rule: A nonfinal Rule 41 dismissal “without prejudice” of remaining claims may be cured for appellate purposes when the appellant makes an unequivocal, binding abandonment of those claims—functionally converting the dismissal into one “with prejudice” and creating a final judgment.
  2. Virginia tort rule reaffirmed: In the landlord-tenant setting, Virginia generally does not impose a tort duty on landlords to repair after possession passes to the tenant; tort liability arises only for negligent repair involving a “positive act of negligence.” Inspection and subsequent inaction, even after notice, sounds in nonfeasance and does not state a negligent-repair claim on these pleadings.

The opinion thus both refines appellate finality practice in the Fourth Circuit and underscores Virginia’s strict separation of contract duties from tort liability in landlord-tenant injury cases.