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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." this service. On November 12, 1997, King left for a trip to California. On November 16, 1997, King received a voice King chose to take advantage of

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
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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. 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

According to a private investigator hired to investigate the burglary at King's condominium, Atrium's general manager admitted that both employees and nonemployees had access to the box where the convenience keys were stored and that "there was lots of activity around the box." 5

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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 The

motion, the circuit court denied Atrium's motion.

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.' "
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Ravenwood Towers, Inc. v.

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

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