Holles v. Sunrise Terrace, Inc., Record No. 980482.

• Decision Date: 08 January 1999
• Docket Number: Record No. 980482.
• Citation: 257 Va. 131,509 S.E.2d 494
• Parties: Carol M. HOLLES, Administratrix of the Estate of Rosemary Louise Braband v. SUNRISE TERRACE, INC.
• Court: Virginia Supreme Court

509 S.E.2d 494

257 Va. 131

Carol M. HOLLES, Administratrix of the Estate of Rosemary Louise Braband v. SUNRISE TERRACE, INC.

Record No. 980482.

Supreme Court of Virginia.

January 8, 1999.

William E. Hassan (John A. Keats; Duvall, Harrigan, Hale & Hassan, on briefs), Fairfax, for appellant.

Grace B. Carroll, Fairfax (S. Vernon Priddy, III, Richmond; Hale, Carleton, Evans & Wochok, Fairfax; Sands, Anderson, Marks & Miller, Richmond, on brief), for appellee.

Present: All the Justices.

KEENAN, Justice.

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 plaintiffs 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 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. Holies, 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 to provide adequate security at the Center. In Count, II, Holies 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 fourday 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 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 that evidence prejudiced Holles. Thus, we are unable to consider Holies' first assignment of error.

Holles next argues that the trial court erred in granting Sunrises' 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 breath of this alleged duty is actionable under common law negligence principle's. We disagree with Holles' argument.

To establish a cause of action for negligence, the duty alleged to have been tortiously breathed 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...