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
2
(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
3
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.
4
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
6
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
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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
8
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
11
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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