SUNRISE TERRACE, INC.
January 8, 1999
Record No. 980482
CAROL M. HOLLES, ADMINISTRATRIX OF THE ESTATE
OF ROSEMARY LOUISE BRABAND
SUNRISE TERRACE, INC.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
Present: All the Justices
OPINION BY JUSTICE BARBARA MILANO KEENAN
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
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
Sect. 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
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.
 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, 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, 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
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
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 Holles’ first assignment of
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’
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
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, 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.
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.
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 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.
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 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
 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
 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.
 Based on this holding, we do not
address Holles’ assignment of error that she was entitled to a
new trial on the issue of damages only on the negligence count.