Present: All the Justices
CAROL M. HOLLES, ADMINISTRATRIX
OF THE ESTATE OF ROSEMARY LOUISE BRABAND
v. Record No. 980482 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 8, 1999
SUNRISE TERRACE, INC.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
In this appeal, we consider whether the trial court erred
in entering judgment for a defendant provider of management
services at an "adult care residence" on counts of breach of
contract and negligence, which arose from an attack by an
intruder on the plaintiff's decedent, a tenant in the facility.
In May 1994, Sunrise Terrace, Inc. (Sunrise) provided food
and management services to the residents of the Lincolnian
Senior Center (the Center) under a contract with Fairfax County.
Various Fairfax County agencies operate the Center to provide
services and programs for senior citizens. The Center includes
an adult care residence licensed under Code § 63.1-175,
consisting of two different types of housing for senior
citizens. The second floor of the Center has semi-private rooms
for residents who require assistance with such daily activities
as eating, bathing, and dressing, but who do not require the
medical services of a nursing home. The residences on the third
floor are efficiency apartments for residents who are capable of
performing all activities of daily living without assistance
from the facility's staff. Third floor residents cook their own
food, leave the building whenever they choose, have overnight
guests, and otherwise lead independent lives.
In May 1994, the plaintiff's decedent, Rosemary Louise
Braband, was a tenant of the Center in a third floor efficiency
apartment. Braband leased the apartment from the Fairfax County
Redevelopment and Housing Authority.
The contract between Sunrise and the County consisted of a
Request for Proposal issued by the County and a Proposal
submitted by Sunrise in response, along with several amendments.
In the Request for Proposal, the County provided: "The
management firm should indicate its plan to ensure the physical
security of the residents, particularly those in the second
floor Assisted Living portion." In its Proposal, Sunrise
specified that it would have an employee present at the front
desk during the times that the front door was unlocked.
Sunrise's proposal further provided: "All other doors are kept
locked at all times."
Sometime before 8:00 a.m. on the morning of May 25, 1994,
before the Center's front door was unlocked for the day, a man
later identified as Byron C. Pooler went to the door of
Braband's apartment and identified himself as a maintenance
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worker. Thinking that Pooler had come to repair her air
conditioner, Braband allowed him to enter her apartment.
Pooler placed a kitchen knife at Braband's throat and
demanded money, but Braband only had three dollars in her
wallet. Pooler then raped Braband and demanded that she write
him a check for fifty dollars. Prior to this attack on Braband,
there had been no criminal acts committed on any Center
resident.
Pooler later was arrested for rape and robbery. 1 In a
statement made to Detective Charles Arnone of the Fairfax County
Police Department, Pooler said that he gained entrance to the
Center by waiting until a side door was opened from within and
then walking through the doorway past the person who had opened
the door.
In Count I of the amended motion for judgment, Carol M.
Holles, the administratrix of Braband's estate, 2 alleged that
Braband was a third party beneficiary of Sunrise's contract with
Fairfax County, and that Sunrise breached the contract by failing
1
Pooler pleaded guilty to the rape and robbery of Braband.
He received a sentence of life imprisonment on the rape charge
and twenty years' imprisonment on the robbery charge.
2
This action originally was brought by Rosemary Braband.
After Braband's death while the action was pending, Carol
Holles, administratrix of Braband's estate, was substituted as
plaintiff. Holles stipulated that Braband's death was not
causally related to Pooler's assault on Braband.
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to provide adequate security at the Center. In Count II, Holles
alleged that Sunrise was negligent in allowing Pooler to gain
entrance to the Center, and that this negligence was a proximate
cause of the assault on Braband.
A jury heard the above evidence in a four-day trial. The
court took under advisement Sunrise's motion to strike the
evidence on the negligence count, in which Sunrise asserted that
it did not owe a common law duty of care to Braband, but owed
only those obligations assumed in its contract with Fairfax
County. At the conclusion of the evidence, the trial court
instructed the jury on both contract and negligence theories.
Over Sunrise's objection, the trial court instructed the jury
that Sunrise, as manager of an adult care residence for the
elderly, "has undertaken a duty to use ordinary care to prevent
criminal acts of third persons which could be reasonably
foreseen or anticipated." The jury returned a verdict in favor
of Sunrise on the count alleging breach of contract, and in
favor of Holles on the negligence count, awarding damages of
$388.50.
Both parties moved to set aside the jury's verdict. The
trial court granted Sunrise's motion to set aside the verdict on
the negligence count, and denied Holles' motion to set aside the
verdict on the contract count. On the negligence count, the
court agreed with Sunrise's argument that there was no "special
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relationship" between Sunrise and Braband, stating that Sunrise
was "neither the owner of the property, nor Ms. Braband's
landlord; Sunrise was merely a provider of services to the
Center pursuant to the terms of its contract with Fairfax
County." Thus, the court concluded that "Sunrise's duty to Ms.
Braband, if any, was governed by the contractual provisions and
not by the common law of negligence." The court entered final
judgment in favor of Sunrise on both counts.
On appeal, Holles first argues that the trial court erred
in refusing to allow Priscilla R. Joyner, a registered nurse, to
testify as an expert witness on "rape trauma syndrome" and its
effects on the victims of such crimes. Holles contends that,
although she failed to proffer the substance of Joyner's
qualifications and proposed testimony, she is entitled to a new
trial on this issue because the trial court summarily refused to
admit the evidence on the grounds that Joyner was not a medical
doctor. We disagree.
When testimony is excluded before it is presented, the
record must reflect a proper proffer showing what the testimony
would have been. Chappell v. Virginia Elec. Power Co., 250 Va.
169, 173, 458 S.E.2d 282, 285 (1995); see Williams v. Harrison,
255 Va. 272, 277, 497 S.E.2d 467, 471 (1998). Without such a
proffer, we cannot determine the admissibility of the proposed
testimony and, if admissible, whether the court's exclusion of
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that evidence prejudiced Holles. Thus, we are unable to
consider Holles' first assignment of error.
Holles next argues that the trial court erred in granting
Sunrise's motion to strike the evidence on the negligence count.
Holles contends that the contract between Sunrise and Fairfax
County established a "special relationship" between Sunrise and
the Center residents, imposing on Sunrise a common law duty to
protect the residents from the foreseeable criminal acts of
third parties. Holles asserts that Sunrise's breach of this
alleged duty is actionable under common law negligence
principles. We disagree with Holles' argument.
To establish a cause of action for negligence, the duty
alleged to have been tortiously breached must be a common law
duty, not a duty arising between the parties solely by virtue of
a contract. Foreign Mission Bd. v. Wade, 242 Va. 234, 241, 409
S.E.2d 144, 148 (1991). Therefore, for Holles to maintain a
negligence claim against Sunrise, she must identify a common law
duty owed by Sunrise to her, which arose separate and apart from
any duty imposed by Sunrise's contract with Fairfax County.
The issue whether Sunrise owed a common law duty of care to
Braband is a question of law. See A.H. v. Rockingham Publishing
Co., 255 Va. 216, 220, 495 S.E.2d 482, 485 (1998); Burns v.
Johnson, 250 Va. 41, 45, 458 S.E.2d 448, 451 (1995). Before any
duty of care can arise to control the conduct of third persons,
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there must be a special relationship between the defendant and
either the plaintiff or the third person. A.H., 255 Va. at 220,
495 S.E.2d at 485; accord, Burdette v. Marks, 244 Va. 309, 312,
421 S.E.2d 419, 420 (1992). We have recognized a special
relationship between a defendant and a plaintiff in cases
involving a common carrier and its passenger, a business
proprietor and its invitee, and an innkeeper and its guest.
A.H., 255 Va. at 220, 495 S.E.2d at 485; Klingbeil Management
Group Co. v. Vito, 233 Va. 445, 448, 357 S.E.2d 200, 201 (1987).
However, these are not exclusive examples of a special
relationship. A.H., 255 Va. at 220, 495 S.E.2d at 485; Gulf
Reston, Inc. v. Rogers, 215 Va. 155, 158, 207 S.E.2d 841, 844
(1974).
An essential characteristic of a special relationship is
that it provides a right of protection to a plaintiff by a
defendant from the criminal acts of third persons that can be
reasonably foreseen or anticipated. See Klingbeil, 233 Va. at
447-48, 357 S.E.2d at 201; Gulf Reston, 215 Va. at 158, 207
S.E.2d at 844. In Klingbeil and Gulf Reston, we held that there
generally is no special relationship between a landlord and a
tenant that would impose a common law duty on the landlord to
protect the tenant from an intentional criminal act of an
unknown third person. See id.
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As the trial court properly recognized in this case,
Sunrise did not even have the common law status of a landlord,
but was present on the premises solely pursuant to its
management services contract with Fairfax County. Therefore, we
conclude that Sunrise did not have a special relationship with
Braband, a resident of the "independent living" floor of the
Center, because there was no right of protection inherent in
their relationship separate and apart from any duties imposed by
Sunrise's contract with the County. Accordingly, we hold that
the trial court did not err in dismissing the negligence count. 3
Holles' remaining assignments of error, which concern her
breach of contract action, are procedurally defaulted for
various reasons. Holles argues that the trial court erred in
instructing the jury regarding incidental beneficiaries to a
contract. Instruction No. DD, which was offered by Sunrise,
provided: "A person who benefits only incidentally from a
contract between others cannot sue upon the contract."
After Sunrise offered this instruction, Holles' counsel
stated: "We don't object to the instruction." The instruction
was given to the jury along with two instructions defining third
party beneficiaries and their rights under a contract. These
three instructions placed before the jury the issue whether
3
Based on this holding, we do not address Holles' assignment
of error that she was entitled to a new trial on the issue of
8
Braband was a third party beneficiary of Sunrise's contract with
Fairfax County. Although Holles argued in her motion to set
aside the verdict that she had objected to the incidental
beneficiary instruction offered by Sunrise, the record discloses
that she did not. Since Holles did not raise a timely objection
to Instruction No. DD, we will not consider her objection to
that instruction on appeal. Rule 5:25; see Morgen Indus., Inc.
v. Vaughan, 252 Va. 60, 67-68, 471 S.E.2d 489, 493 (1996);
Williams v. Commonwealth, 248 Va. 528, 537, 450 S.E.2d 365, 372
(1994), cert. denied, 515 U.S. 1161 (1995).
We also do not reach the merits of Holles' contention that
the trial court erred in refusing "to declare the Plaintiff's
Decedent a third party beneficiary as a matter of law." We
observe the general rule that, when an issue has been submitted
to a jury under instructions given without objection, such
assent constitutes a waiver of any contention that the trial
court erred in failing to rule as a matter of law on the issue.
See Spitzli v. Minson, 231 Va. 12, 17-19, 341 S.E.2d 170, 173-74
(1986); Hilton v. Fayen, 196 Va. 860, 866-67, 86 S.E.2d 40, 43
(1955). Thus, in agreeing to submit to the jury the issue
whether Braband was an incidental or a third party beneficiary
of the contract, Holles waived her argument that the trial court
erred in refusing to declare Braband a third party beneficiary
damages only on the negligence count.
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as a matter of law. See Rule 5:25; Spitzli, 231 Va. at 17-18,
341 S.E.2d at 173; Hilton, 196 Va. at 866-67, 86 S.E.2d at 43.
We next note that although Holles contends the trial court
erred in refusing to instruct the jury "that the failure to keep
the rear entry door closed and locked was a breach of contract
as a matter of law," Holles failed to request such an
instruction during the trial. Therefore, we do not address this
matter. Rule 5:25.
Finally, although Holles assigns error to the trial court's
refusal to set aside the verdict for Sunrise on the third party
beneficiary breach of contract claim, she does not discuss this
assignment of error in her brief. Thus, she has abandoned that
issue. See Williams, 248 Va. at 537, 450 S.E.2d at 372; Durham
v. National Pool Equip. Co. of Va., 205 Va. 441, 445, 138 S.E.2d
55, 58 (1964).
For these reasons, we will affirm the trial court's
judgment.
Affirmed.
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