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HALFMANN, et al.

September 15, 2000

Record No. 992331






Jean Harrison Clements, Judge

Present: All the Justices


In this wrongful death case, the dispositive
issue is one of proximate cause. We review a judgment entered
against a homeowners’ association in favor of the personal
representatives of the estate of a child who was struck and
killed by a motorist as the child was riding his bicycle from a
pathway located in the common areas owned by the homeowners’
association onto a public street. Because we conclude that there
was insufficient evidence as a matter of law to establish that
any alleged defects in the pathway and its intersection with the
street proximately caused the accident, we will reverse the
judgment of the circuit court and enter final judgment for the
homeowners’ association.


Walter R. Halfmann (Halfmann) was killed in
January 1995 as he rode his bicycle from a multi-purpose, private
[1] onto Sugarland Run Drive, a
public street in Loudoun County, and was struck by a motor
vehicle driven by Trina Kabiri. The bike path was located in a
residential subdivision and was part of the common areas owned by
Sugarland Run Homeowners Association, Inc. (Association).

Halfmann’s parents, Walter D. Halfmann and
Barbara B. Halfmann, as personal representatives of their
eight-year-old son’s estate, filed this action
against Kabiri, the Association, and several other defendants.
[2] The personal representatives alleged that the
Association had notice or knowledge of "the unreasonably
dangerous condition" existing at the intersection between
the pathway and the street where the accident occurred, and that
the Association failed to take "reasonable and
necessary" steps to ensure that people utilizing the common
areas could do so safely.

After the personal representatives presented
evidence at trial, the Association moved to strike that evidence
because, inter alia, the alleged defects in the
pathway were not a proximate cause of the accident. The circuit
court denied the motion initially and again when the Association
renewed its motion to strike at the conclusion of all the

A jury then returned a verdict against the
Association in favor of the personal representatives and awarded
damages to Halfmann’s estate and his statutory beneficiaries
pursuant to Code ?? 8.01-52 and –53. The jury,
however, found in favor of Kabiri.
[3] After denying the Association’s motion to set aside
the jury verdict, the circuit court entered judgment for the
personal representatives.
[4] This appeal followed.

The bike path at issue in this case was
designed and constructed no later than the summer of 1974, but
not by the Association. The path intersects Sugarland Run Drive
and continues on the opposite side of the street. No signs or
markings were placed along the pathway or on Sugarland Run Drive
to warn a bicyclist or a motorist about the intersection. Nor
were any barriers or devices installed at the end of the path to
prevent or impede a bicyclist’s travelling from the path
onto Sugarland Run Drive. The only change to the pathway since
its construction was the installation of curb cuts, or wheelchair
ramps, on both sides of Sugarland Run Drive. The Virginia
Department of Transportation constructed the curb cuts in
approximately 1994.

On the afternoon of the accident, as Halfmann
was riding his bicycle down the descending pathway and
approaching the intersection with Sugarland Run Drive, the
intersection and street were clearly visible to him. However,
several objects were on his left side between the path and that
portion of the street where Kabiri was operating her vehicle. Two
large, electrical switch/transformer boxes were located within a
few feet of the edge of the pathway and approximately 10 to 15
feet from the edge of Sugarland Run Drive.
[5] Two vehicles were
parked on the side of the street nearest Halfmann about 30 to 40
feet down Sugarland Run Drive. A house was likewise located about
70 feet down the street from the point of impact between
Halfmann’s bicycle and Kabiri’s car. Bushes had been
planted along one side of the driveway of that house. All these
objects, as well as the pathway upon which Halfmann was riding
his bicycle, were to Kabiri’s right as she drove her vehicle
along Sugarland Run Drive.

While no testimony established Halfmann’s
speed as he rode his bicycle on the path toward Sugarland Run
Drive, Rachel Susan Toepfer, who was driving along Sugarland Run
Drive in the direction opposite to that in which Kabiri was
travelling at the time of the accident, testified that
Halfmann’s speed did not change as he approached the
intersection, nor did he stop or look to his left in the
direction of Kabiri’s vehicle. According to Toepfer,
Halfmann entered the street and almost travelled past
Kabiri’s vehicle before the left front of her vehicle (the
driver’s side) struck the rear wheel of his bicycle. Another
witness to the accident likewise testified that Halfmann did not
stop at the intersection and did not appear to look to his left,
the direction from which Kabiri’s vehicle was approaching.

When the accident occurred, Kabiri was on her
way to pick up her child from school. Kabiri testified that
Halfmann passed in front of her car and that she could not do
anything to avoid hitting his bicycle. She further stated that,
if she had seen him, she would have stopped but she was not aware
of anything in the street until the impact occurred.
[6] However, she knew that children
who attended the nearby school often walked or rode bicycles to
that school.

Jennifer L. Toole, an expert in the field of
bicycle and pedestrian planning, testified that there were two
major "flaws" in the design of the pathway and the
intersection where the accident at issue occurred. First, she
stated that there should have been a sign inscribed with the
warning "Bike Crossing" or "Pedestrian
Crossing" on Sugarland Run Drive at its intersection with
the pathway. She also recommended that a crosswalk be painted on
the street.

The second defect, according to Toole, was the
inadequacy of "sight lines" between an approaching
motorist and a bicyclist on the pathway.
[7]Toole identified the
switch/transformer boxes as the factor that significantly blocked
the sight lines for Halfmann and Kabiri on the day of the
accident. However, Toole admitted that, in order to analyze
whether sight lines are adequate, the respective likely speeds of
a motorist and bicyclist must be determined. Toole further
testified that only by removing the switch/transformer boxes
could proper sight lines have been established. If the pathway
itself were moved further from the boxes, Toole could say only
that the sight lines would have been "better" since she
had not analyzed that possibility.

Toole also stated that the pathway’s
downward slope to the intersection caused both motorists and
bicyclists to have only a "narrow window" of visibility
in which to see each other as they approached the intersection.
Toole indicated that the pathway should have had only a grade of
five to eight degrees, but instead, it sloped between 10 and 15
degrees. Nevertheless, she testified that if Halfmann had stopped
at the intersection, he would have had a clear line of sight down
Sugarland Run Drive in the direction from which Kabiri was
travelling for "quite a distance." Finally, Toole
stated that the location of the curb cut was not appropriate
because it did not exit into a crosswalk.


Several principles guide our analysis of this
case. On appeal, we review the facts in the light most favorable
to the prevailing party at trial, in this case the personal
representatives of Halfmann’s estate. Nationwide Mut.
Ins. Co. v. St. John
, 259 Va. 71, 76, 524 S.E.2d 649, 651
(2000). "[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.
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)). A trial court’s judgment is presumed
to be correct, and on appeal, we will not set it aside unless the
judgment is plainly wrong or not supported by the evidence. Ravenwood,
244 Va. at 57, 419 S.E.2d at 630. However, when these principles
are applied, if it appears that the judgment is plainly wrong or
without evidence to support it, we must set it aside. Evaluation
Research Corp. v. Alequin
, 247 Va. 143, 147-48, 439 S.E.2d
387, 390 (1994) (citing Thompson v. Bacon, 245 Va. 107,
111, 425 S.E.2d 512, 514 (1993); Whichard v. Nee, 194 Va.
83, 89, 72 S.E.2d 365, 369 (1952)).

The dispositive issue in this appeal is whether
the alleged defects in the design of the pathway and its
intersection with Sugarland Run Drive were a proximate cause of
the accident. In order to hold the Association liable for that
alleged "unreasonably dangerous condition," the
evidence must establish that such condition was a proximate cause
of the accident. See Cannon v. Clarke, 209 Va. 708,
711, 167 S.E.2d 352, 354 (1969) (to hold owner liable for
injuries sustained because of alleged unsafe condition of
premises, it must be shown that such condition was a proximate
cause of injuries). The personal representatives had the burden
of proving not only that the Association was negligent but also
that its negligence was a proximate cause of the accident. Commercial
Distributors, Inc. v. Blankenship
, 240 Va. 382, 395, 397
S.E.2d 840, 847 (1990) (citing State-Planters Bank & Trust
Co. v. Gans
, 172 Va. 76, 81, 200 S.E. 591, 593 (1939)); Boyd
v. Brown
, 192 Va. 702, 711, 66 S.E.2d 559, 564 (1951).

A 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); accord
Jenkins v. Payne, 251 Va. 122, 128, 465 S.E.2d 795, 799
(1996); Banks v. City of Richmond, 232 Va. 130, 135, 348
S.E.2d 280, 282 (1986). Generally, the issue of proximate
causation is a question of fact to be resolved by a jury. Jenkins,
251 Va. at 128, 465 S.E.2d at 799 (citing Brown v. Koulizakis,
229 Va. 524, 531, 331 S.E.2d 440, 445 (1985)). However, when
reasonable people cannot differ, the issue becomes a question of
law for the court to decide. Jenkins, 251 Va. at 128, 465
S.E.2d at 799 (citing Hadeed v. Medic-24, Ltd., 237 Va.
277, 285, 377 S.E.2d 589, 593 (1989)); Alexander v. Moore,
205 Va. 870, 875, 140 S.E.2d 645, 648-49 (1965).

With regard to the issue of proximate cause,
the Association argues that, while the personal
representatives’ expert, Toole, identified several alleged
"flaws" in the design of the pathway and its
intersection with Sugarland Run Drive, she never explained the
causal connection between those particular defects and the
accident at issue. To the contrary, the Association points out
several facts that show that those defects were not a proximate
cause of the accident. First, Toepfer, who witnessed the
accident, stated that Halfmann never altered the speed of his
bicycle as he approached the intersection, and neither stopped at
the intersection nor looked to his left for oncoming traffic.
Second, the intersection and the street were visible to anyone
travelling on the pathway toward Sugarland Run Drive. Finally,
Toole admitted that if Halfmann had stopped at the intersection,
he could have seen Kabiri’s oncoming vehicle.

The personal representatives respond that there
was "far more than a sufficient basis to show a causal
connection" between the defects in the pathway and the
accident. They point to the inadequate sight lines between
motorists on Sugarland Run Drive and bicyclists on the pathway,
the excessive slope of the path, the lack of warning signs or a
crosswalk, the absence of any barrier on the pathway to stop or
slow a bicyclist, and the improperly located curb cut. The
personal representatives also contend that the question of
proximate cause is actually an issue of contributory negligence,
and argue that the jury found that Halfmann was not
contributorily negligent when it returned a verdict against the
[9] We agree with the Association.

Assuming, without deciding, that there was an
unreasonably dangerous condition at the intersection between the
pathway and Sugarland Run Drive, and that the Association knew or
should have known of that condition, the burden of proving
proximate causation remained with the personal representatives.
In this case, the evidence did not establish that the
"flaws" identified by Toole were an "omission
which, in natural and continuous sequence, . . .
produce[d] the [accident], and without which [the accident] would
not have occurred." Beale, 210 Va. at 522, 171 S.E.2d
at 853. We reach this conclusion because of the particular facts
of the accident at issue. See Banks, 232 Va. at
135, 348 S.E.2d at 283 (in applying rules of proximate cause,
each case must be decided upon its own set of facts).

First, there is no evidence that Halfmann
attempted to stop at the intersection and could not do so because
of the grade of the path, the absence of a barrier or device to
slow his speed, or the location of the curb cut. In fact,
according to Toepfer, Halfmann did not alter his speed, never
stopped, and did not even look to his left for oncoming vehicles
as he approached the intersection. Next, the evidence was
uncontradicted that Sugarland Run Drive and the intersection were
clearly visible to Halfmann as he proceeded along the pathway
toward the street. Finally, Toole admitted that a determination
regarding adequate sight lines depends on the respective speeds
of a motorist and bicyclist, but the evidence did not demonstrate
either Halfmann’s speed or that of Kabiri.

However, the evidence did establish that if
Halfmann had stopped at the intersection of Sugarland Run Drive
and the pathway, he could have seen Kabiri’s car approaching
that intersection. This case is not one where Halfmann had to
ride his bicycle into the edge of Sugarland Run Drive and look
around the switch/transformer boxes in order to determine whether
any vehicle was approaching from his left. Those boxes were 10 to
15 feet back from the edge of the street.

Although all accidents, however "tragic
and deplorable," Clark v. Hodges, 185 Va. 431, 438,
39 S.E.2d 252, 256 (1946), must have some factual cause,
"often described as the ‘but for’ . . .
rule[,] [g]enerally a person is not liable to another unless but
for [that person’s] negligent act the harm would not have
occurred." Wells v. Whitaker, 207 Va. 616, 622, 151
S.E.2d 422, 428 (1966). In this case, the personal
representatives failed to carry their burden to establish that
"but for" the Association’s alleged negligence,
the accident would not have occurred. Id. at 622, 151
S.E.2d at 428.

For these reasons, we conclude that the
evidence was insufficient as a matter of law to establish that
the alleged defects in the design of the pathway and its
intersection with Sugarland Run Drive were a proximate cause of
the accident.
[11] Accordingly, we will reverse the judgment of the
circuit court, set aside the jury verdict in favor of the
personal representatives, and enter final judgment here in favor
of the Association.

Reversed and final judgment.


[1] Bicyclists, pedestrians, in-line skaters and
skateboarders used the paved path.

[2] At the time of trial, only Kabiri
and the Association remained as party defendants.

[3] The personal representatives did
not appeal the judgment in favor of Kabiri, and she is not a
party to this appeal.

[4] The circuit court’s judgment
was in accordance with the jury verdict except that the court
remitted a portion of the jury’s award for funeral expenses
and for the care, treatment, and hospitalization of Halfmann. The
personal representatives did not object to the remittitur.

[5] The switch/transformer boxes were
in place before the pathway was constructed.

[6] The investigating police officer
testified that he found no skid marks on Sugarland Run Drive that
would indicate Kabiri applied her brakes before the impact.
Likewise, the officer did not find any indication on the bike
path that Halfmann braked or slowed before entering the street.

[7] Toole testified that
"appropriate sight lines" provide an "adequate
visual distance" for a motorist to see a pedestrian and stop
in time to avoid hitting the pedestrian, based on the speed limit
or the prevailing speed of motorists on the road. The term also
applies when a bicyclist is approaching an intersection with a

[8] The curb cut was not directly in front of Halfmann as
he rode down the path. Instead, the curb cut was located to the
side of the path, thus requiring Halfmann to make a turn to his
left followed by another similar turn to his right in order to
access the curb cut and Sugarland Run Drive from the path.

[9] Since Halfmann was eight years
old at the time of the accident, the circuit court instructed the
jury that Halfmann was presumed to be incapable of contributory
negligence but that the presumption could be rebutted. The court
further instructed the jury to find its verdict for either
defendant if it concluded, as to that defendant, the personal
representatives failed to prove either negligence or proximate
cause, or if it found that Halfmann was contributorily negligent
and that such contributory negligence was a proximate cause of
Halfmann’s death.

Although the personal representatives contend
that the jury verdict in favor of the Association established
that Halfmann was not contributorily negligent, under the
instructions given, the jury could have found either that
Halfmann was not capable of being contributorily negligent or
that he was not contributorily negligent in this instance. The
verdict form was a general form that simply stated that the jury
found in favor of the personal representatives and against the
Association. Thus, we reject the contention that the jury
necessarily decided that Halfmann was not contributorily
negligent. Furthermore, an analysis of the question whether a
tortfeasor’s primary negligence proximately caused an
accident and, if so, the consequent question whether a victim was
contributorily negligent often involves review of the same or
overlapping evidence. That the evidence is the same or
overlapping does not obviate the necessity of an independent
examination of each question.

[10] The speed limit on Sugarland Run Drive was 30 miles per
hour, and the record contained no evidence that Kabiri was

[11] In light of our decision, we need not address the
Association’s other assignments of error.