Atrium Unit Owners Ass'n v. King

Present: All the Justices

THE ATRIUM UNIT OWNERS ASSOCIATION

v. Record No. 022417 OPINION BY JUSTICE CYNTHIA D. KINSER
September 12, 2003
SHARON KING

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge

In this negligence case, the dispositive issue is

whether the plaintiff produced sufficient evidence from

which a jury reasonably could infer a causal connection

between a condominium unit owners association’s alleged

negligence regarding a convenience key and the damages

sustained by the plaintiff in a burglary of her

condominium. We conclude that the plaintiff failed to

establish proximate causation and will, therefore, reverse

the judgment of the circuit court sustaining a jury verdict

in favor of the plaintiff.

MATERIAL FACTS AND PROCEEDINGS

Sharon King owned a condominium unit on the sixth

floor of The Atrium, a high-rise condominium complex

located in Arlington County. As required by The Atrium

Unit Owners Association Rules and Regulations, King

provided the general manager a key to her unit for use in

an emergency. The Rules also permitted residents to

deposit an additional key called a “convenience key” with
the general manager. The convenience key would be given to

those persons specifically authorized by the resident on an

“admittance envelope.” King chose to take advantage of

this service.

On November 12, 1997, King left for a trip to

California. On November 16, 1997, King received a voice

mail message from Thomas K. Meyer, the real estate agent

with whom King had listed her condominium for sale. Meyer

informed King that he was unable to show her condominium to

some potential buyers because the convenience key was

missing. King then called her daughter, Lenette Lepore,

and asked her to leave a key for Meyer at The Atrium’s

“front desk.” When Lepore went to her mother’s condominium

the next day, she discovered that the door was unlocked and

the condominium was not in the condition in which her

mother typically “left her house.” Clothes were lying on

the floor and several drawers and cabinet doors were open.

Lepore called her mother and the police to report a

possible burglary. When King returned home the next week,

she found that numerous items, including clothing, jewelry,

coats, and electronic equipment, were missing from the

condominium.

King subsequently filed a motion for judgment in the

circuit court against The Atrium Unit Owners Association

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(Atrium), Polinger Company, Polinger, Shannon & Luchs, and

Brooks Business Transfer, Inc. 1 Regarding Atrium, King

alleged, as pertinent to the issues on appeal, that Atrium

was negligent by failing “to train employees in security,

. . . to store securely spare keys, to keep inventories of

spare keys, to document adequately the distribution and

return of spare keys, to follow established procedures

regarding keys and control of the Atrium property, and to

use due care under the circumstances.” King further

alleged that Atrium’s negligence “was the sole, direct and

proximate cause of [her] incurring a significant monetary

loss of property, as well as considerable mental distress.”

At trial, Corporal Robert Rutledge, the Arlington

County police officer who responded to Lepore’s call about

the burglary, testified that he saw no signs of “forced

entry” into King’s condominium. He stated that, in most

burglaries where access is gained other than by forced

entry, the burglar has either been allowed in by someone,

used a key, or entered through an unsecured door or window.

Corporal Rutledge testified that he found the sliding glass

1
Polinger Company and Polinger, Shannon & Luchs were
allegedly retained by Atrium to manage the condominium
building. Brooks Business Transfer, Inc. was a commercial
moving company whose employees were allegedly in the
condominium complex around the time of the burglary of

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door to the condominium’s balcony unlocked and that it is

not “unheard of” for burglars to gain access to high-rise

apartments by means of a balcony. However, Corporal

Rutledge conceded that the location of King’s condominium

in the building and the distance between balconies would

make access “from balcony to balcony” difficult.

King’s real estate agent, Meyer, testified that he was

familiar with Atrium’s procedure for obtaining a

convenience key from the front desk. Once the personnel at

the front desk determined that there was a permission slip

for a particular person, they checked the key out to that

individual. Meyer stated that, although the procedure for

returning a key required the person to “sign the key back

in” by initialing the key log, occasionally he would simply

“hand it to [a person at the desk]” or “set it on the

counter top.”

Continuing, Meyer stated that he had “a standing

permission slip” from King allowing him to check out King’s

convenience key for the purpose of showing her condominium

to potential buyers. Meyer testified that when he asked

for King’s convenience key on November 16, 1997, he was

told that “they didn’t have a key for it.” Meyer had used

________________________
King’s unit. All these defendants were dismissed with
prejudice from the action.

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the key on November 2, 1997, but insisted that he had

returned it to the front desk after he had shown King’s

condominium to a perspective buyer. He admitted, however,

that he did not sign the key back in on November 2 by

initialing the key log. Meyer was the last person to sign

out the convenience key for King’s condominium before the

burglary.

Shalu Wohldegioris, the front desk supervisor both

before and after the burglary of King’s condominium,

explained that the convenience keys were physically kept in

a “box mounted on the counter in the inner side of the

front desk.” The emergency keys, however, were stored “in

a locked box on a wall in the general manager’s office.”

According to Wohldegioris, all the front desk staff had

access to the box containing the convenience keys. 2 He also

admitted that, in November 1997, Atrium did not have any

procedure in effect for determining the whereabouts of a

convenience key that was not returned to the front desk.

At the conclusion of King’s case-in-chief, Atrium

moved to strike her evidence. The court took the motion to

2
According to a private investigator hired to
investigate the burglary at King’s condominium, Atrium’s
general manager admitted that both employees and non-
employees had access to the box where the convenience keys
were stored and that “there was lots of activity around the
box.”

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strike under advisement with regard to the negligence claim

against Atrium and allowed that claim to proceed to the

jury. 3 The jury returned a verdict in favor of King.

Atrium filed a post-trial motion to set aside the

verdict and to enter judgment for it as a matter of law.

Atrium asserted that the court should have granted its

earlier motion to strike because King “failed to establish

a duty, failed to establish a breach of any duty, failed to

establish notice, and failed to establish a causal

relationship between the duty/breach and damages.” Atrium

argued that each of these failures was fatal to King’s

negligence claim. At the conclusion of a hearing on the

motion, the circuit court denied Atrium’s motion. The

court stated that “there was sufficient evidence to send

the case to the jury” and that “[t]he jury’s verdict is not

plainly wrong.” The court subsequently entered an order

denying Atrium’s motion and granting judgment to King on

the jury’s verdict. Atrium appeals from that judgment.

ANALYSIS

“[A] party who comes before us with a jury verdict

approved by the trial court ‘occupies the most favored

position known to the law.’ ” Ravenwood Towers, Inc. v.

3
The court granted the motion to strike with regard to
a breach of contract claim that King had alleged against

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Woodyard, 244 Va. 51, 57, 419 S.E.2d 627, 630 (1992)

(quoting Pugsley v. Privette, 220 Va. 892, 901, 263 S.E.2d

69, 76 (1980)); accord Sugarland Run Homeowners Ass’n v.

Halfmann, 260 Va. 366, 371, 535 S.E.2d 469, 472 (2000). On

appeal, we view the evidence and all reasonable inferences

in the light most favorable to the prevailing party at

trial. Nationwide Mut. Ins. Co. v. St. John, 259 Va. 71,

76, 524 S.E.2d 649, 651 (2000); Ravenwood, 244 Va. at 57,

519 S.E.2d at 630. A trial court’s judgment will not be

set aside “unless it appears from the evidence that such

judgment is plainly wrong or without evidence to support

it.” Code § 8.01-680; accord Ravenwood, 244 Va. at 57,

519S.E.2d at 630. However, upon applying these principles,

if it appears that a judgment is plainly wrong or without

evidence to support it, we must set it aside. Sugarland

Run Homeowners Ass’n, 260 Va. at 371, 535 S.E.2d at 472.

To establish actionable negligence, King had the

burden to show the existence of a legal duty, a breach of

the duty, and proximate causation resulting in damage. Fox

v. Custis, 236 Va. 69, 73, 372 S.E.2d 373, 375 (1988);

Trimyer v. Norfolk Tallow Co., Inc., 192 Va. 776, 780, 66

S.E.2d 441, 443 (1951); see Delk v. Columbia/HCA Healthcare

Corp., 259 Va. 125, 132, 523 S.E.2d 826, 830 (2000). The

________________________
Atrium.

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dispositive question in this appeal is whether King

established a causal connection between Atrium’s alleged

negligent handling of her convenience key and the damages

she suffered as a result of the burglary.

Atrium argues that King did not present any evidence

proving “how, or by whom, or even whether . . . the

convenience key was used in the burglary.” Atrium asserts

that this failure was fatal to King’s case and, that by

submitting the case to the jury, “the trial court

erroneously invited the jury to speculate.” On this issue,

King contends that there was credible circumstantial

evidence supporting the jury’s determination as to

proximate causation. King points to the evidence that she

could account for all the keys to her condominium except

for the missing convenience key, that there were no signs

of forced entry into her condominium, and that any other

reasonable method of “unforced entry” was excluded. We

agree with Atrium.

“The proximate cause of an event is that act or

omission which, in natural and continuous sequence,

unbroken by an efficient intervening cause, produces the

event, and without which that event would not have

occurred.” Beale v. Jones, 210 Va. 519, 522, 171 S.E.2d

851, 853 (1970). Proximate cause is generally a question

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of fact to be resolved by a jury. Jenkins v. Payne, 251

Va. 122, 128, 465 S.E.2d 795, 799 (1996). Although facts

may be established by circumstantial evidence, Fobbs v.

Webb Bldg. Ltd. P’ship, 232 Va. 227, 230, 349 S.E.2d 355,

357 (1986), such evidence “must be sufficient to establish

that the result alleged is a probability rather than a mere

possibility.” Southern States Coop., Inc. v. Doggett, 223

Va. 650, 657, 292 S.E.2d 331, 335 (1982). Before a

question of fact with regard to proximate cause may be

submitted to a jury, the evidence proving the causal

connection must be “sufficient to take the question out of

the realm of mere conjecture, or speculation, and into the

realm of legitimate inference.” Beale, 210 Va. at 522, 171

S.E.2d at 853 (quoting Hawkins v. Beecham, 168 Va. 553,

561, 191 S.E. 640, 643 (1937)).

In Wooldridge v. Echelon Service Co., 243 Va. 458,

459, 416 S.E.2d 441, 442 (1992), we considered whether a

plaintiff produced sufficient evidence to establish

proximate cause. There, a woman was fatally attacked in a

building for which Echelon provided security services. Id.

at 460, 416 S.E.2d at 442. At trial, one of the security

guards on duty at the time of the attack testified that he

saw a “ ‘flash in the elevator corridor . . . [l]ike

someone had ran . . . from the down elevator to the up

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elevator.’ ” Id. at 459-60, 416 S.E.2d at 442. The

security guard stated that he called out to the individual

but that the individual did not respond. The security

guard did not pursue the individual. Id. at 460, 416

S.E.2d at 442. Shortly thereafter, the security guards

received a telephone call reporting that a woman was

screaming on the 11th floor of the building. Id. The

security guard testified that, when he went to the 11th

floor to investigate, he was confronted by a man holding a

pair of long scissors in his hand. Id. The security guard

also found the victim “wearing a bloody shirt and

wheezing.” Id. Although the man initially fled, he was

later apprehended in the lobby of the building. Id.

A jury returned a verdict in favor of the plaintiff,

but the trial court set aside the jury verdict and entered

judgment for the defendant. Id. at 460-61, 416 S.E.2d at

442-43. The trial court concluded that the jury’s finding

of “‘a nexus between the entry of the ‘flash’ into the

building, the failure to pursue the ‘flash’ to the exact

site of [the] crime, . . . and the ultimate damage done

could only have been based upon surmise, conjecture, and

speculation by the jury.’” Id. at 461, 416 S.E.2d at 443.

We reversed, stating that the plaintiff “needed only

to produce sufficient evidence for the jury to conclude

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that [the man apprehended] was the ‘flash’ seen and called

to by [the security guard], and that he gained access to

the upper floors of the building at that point.” Id. at

461, 416 S.E.2d at 443. We noted that the security guard

testified that the “flash” was a person and that, after

calling out to the individual, he did not pursue the man

further or attempt to require him to follow the procedures

for admission to the building. Id. at 461-62, 416 S.E.2d

at 443. The evidence also showed that the call reporting

an attack on the 11th floor was received a short time later

and that the man apprehended was the sole unauthorized

person found in the building at the time of the attack.

Id. We concluded that, “[b]ased upon this circumstantial

evidence, . . . the jury reasonably could [have] infer[red]

that [the assailant] was the person [the security guard]

saw running from the ‘down elevators’ into the ‘up

elevators’ ” and that the security guard’s “inaction” was a

proximate cause of the victim’s death. Id.

A plaintiff has the burden “to establish a causal

connection between the defendant’s alleged negligence and

the injury of which the plaintiff complains.” Commercial

Distributors, Inc. v. Blankenship, 240 Va. 382, 395, 397

S.E.2d 840, 847 (1990). Thus, in this case, King had the

burden to produce evidence from which the jury reasonably

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could infer that, as a result of Atrium’s alleged

negligence, the convenience key was used to access her

condominium for the purpose of committing a burglary. We

conclude that King failed to carry this burden.

The evidence presented at trial established that the

convenience key could not be found at the front desk when

Meyer asked for it on November 16 and that there were no

signs of forced entry into King’s condominium. But,

Corporal Rutledge testified that the use of a key was only

one of several ways in which a burglar could have gained

access to the condominium without using force. Although

the location of King’s balcony would have made access by

way of the balcony difficult, it is, nevertheless, notable

that Corporal Rutledge found the sliding glass door to the

balcony unlocked. Moreover, Atrium’s employees had access

to the convenience keys, but King presented no evidence to

show what happened to her convenience key after Meyer

returned it to the front desk on November 2, whether any of

Atrium’s employees saw her key after that date, or whether

the convenience key, as opposed to another key, was even

used in the burglary. “Proof of ‘possibility’ of causal

connection is not sufficient.” Wilkins v. Sibley, 205 Va.

171, 175, 135 S.E.2d 765, 767 (1964). The evidence in this

case did not establish that Atrium’s alleged negligent

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handling of the convenience key was an “act or omission

which, in natural and continuous sequence, . . . produc[ed]

the [burglary], and without which [the burglary] would not

have occurred.” Beale, 210 Va. at 522, 171 S.E.2d at 853.

CONCLUSION

Here, unlike Wooldridge, there was nothing in the

record from which the jury could reasonably infer a causal

connection between Atrium’s alleged negligence and the

damages King sustained as a result of the burglary.

Therefore, the circuit court erred by submitting the case

to the jury and by affirming a jury verdict that could only

have been “the product of mere conjecture, surmise, or

speculation.” Wooldridge, 243 Va. at 462, 416 S.E.2d at

443.

For these reasons, we will reverse the judgment of the

circuit court and enter final judgment here in favor of

Atrium.

Reversed and final judgment.

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