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PRESENT:    All the Justices
RENEE MCGUIRE, ADMINISTRATRIX
OF THE ESTATE OF CODY RAY MCGUIRE
                                                                OPINION BY
v. Record Number  060755                                        JUSTICE G. STEVEN AGEE
                                                                January  12,  2007
SARAH ELLEN HODGES
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
Malfourd W. Trumbo, Judge
Renee McGuire, the mother of Cody Ray McGuire and the
Administratrix of the Estate of Cody Ray McGuire
(individually and collectively,  “McGuire”), appeals from
the judgment of the Circuit Court of Botetourt County in
favor of Sarah Ellen Hodges  (“Mrs. Hodges”).    On appeal,
McGuire asserts the trial court erred when it set aside a
jury verdict in her favor and entered judgment for Mrs.
Hodges.    For the reasons set forth below, we will reverse
the judgment of the trial court.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Mrs. Hodges owned a home in Botetourt County with a
swimming pool located in the backyard.    A chain-link fence,
four feet high, enclosed the pool with only one gate for
entry and exit.    For many years, Mrs. Hodges used a chain
with a separate lock to secure the gate, but in September
2000, the lock disappeared.    Instead of replacing the lock,




Mrs. Hodges wrapped the chain around the gate and the
gatepost to secure the gate.1
On Sunday, September  17,  2000, Thomas Hodges
(“Thomas”), Mrs. Hodges’ son, invited McGuire’s husband,
Stuart McGuire  (“Stuart”), to assist him with car repairs
at Mrs. Hodges’ home.    McGuire and the couple’s two
children, thirty-month old Cody and four-month old Aaron,
accompanied Stuart to Mrs. Hodges’ home that afternoon.
During the visit, McGuire permitted Cody to play in
the front yard while Stuart worked on the vehicle, which
was also located in front of the house.    At one point,
McGuire followed Cody to the backyard, where she saw him
pulling the chain on the pool gate, evidently interested in
chasing a toy that was inside the pool area.    She called
her son away but could not determine from her vantage point
whether the gate had a lock or that the chain secured the
gate.
The two men were unable to finish the car repairs
without additional parts, so they requested that McGuire go
to a store to obtain the parts.    She left Cody under the
supervision of her husband while she went to the store.    A
1 The gate had a movable latch with two separate
prongs, one of which fit around either side of the
gatepost.    The prongs of the latch could be lifted and thus
could not secure the gate without the use of some sort of
locking device.
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short time later, Stuart realized that his son was no
longer playing in the front yard, and after a frantic
search, he discovered Cody floating in the backyard pool.
Stuart leapt over the pool fence, pulled Cody from the pool
and attempted cardiopulmonary resuscitation while an
ambulance was called.
Cody was taken to a local hospital but died two days
later.    McGuire qualified as administratrix of his estate
and filed a wrongful death action in the trial court,
alleging Mrs. Hodges  “negligently failed to properly
provide, install, use and/or maintain the fence and gate
surrounding  [her] swimming pool.”    McGuire alleged that
such negligence was a proximate cause of Cody’s death.2
Evidence at trial established that at the time of
Cody’s drowning, the pool gate was unsecured except by a
chain wrapped around the gate and gatepost in some fashion.
McGuire produced evidence that the fence and gate failed to
meet the requirements of the National Building Code3 and the
2 Stuart renounced any claim arising out of his son’s
death pursuant to Code  §  8.01-53(C).
3 The trial court took judicial notice of Section  616.9
of the ninth edition of the National Building Code,
promulgated in  1984 by the Building Officials and Code
Administrators International, Inc.  (“BOCA”), which states
in relevant part:
Every person owning land on which there is
situated a swimming pool, which contains  24
inches  (610 mm) or more of water in depth at any
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Botetourt County Code4  (together, the  “Building Code”)
because the gate was not self-latching, its latch was not
at least forty-eight inches from the ground, and the
fence’s top rail was not at least forty-eight inches high.5
point, shall erect and maintain thereon an
adequate enclosure either surrounding the
property or pool area, sufficient to make such
body of water inaccessible to small children.
Such enclosure, including gates therein, shall be
not less than  4 feet  (1219 mm) above the
underlying ground.    All gates shall be self-
latching with latches placed  4 feet  (1219 mm)
above the underlying ground and otherwise made
inaccessible from the outside to small children.
See Code  §  36-98  (authorizing the Board of Housing and
Community Development to adopt and promulgate the
Virginia Uniform Statewide Building Code) and  13 VAC
§  5-63-10(B)  (incorporating the International Building
Code, successor to the National Building Code
provision relied upon by the trial court).
4 Section  22-4 of the Botetourt County Code states in
relevant part:
It shall be unlawful for any person to construct,
maintain, use, possess or control any swimming
pool on any property in the county without having
a fence completely around such swimming pool.
Every gate in such fence shall be capable of
being securely fastened at a height of not less
than four  (4) feet above ground level.    Such gate
shall not be allowed to remain unfastened while
the pool is not in use.
The trial court took judicial notice of this Section.
5 McGuire’s expert witness testified that the gate was
not self-latching, but Mrs. Hodges’ expert witness
testified that the gate was self-latching.    McGuire’s
expert witness testified that the latch was only thirty-two
inches above the ground, sixteen inches less than required
by Code, and Mrs. Hodges’ expert witness conceded this
fact.    McGuire’s expert witness testified that the gate’s
top rail was only forty-six inches from the ground, but
Mrs. Hodges’ expert witness testified that the top rail was
forty-eight inches from the ground.
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Conflicting evidence was presented about when and how
Mrs. Hodges left the chain on the gate on the day of the
accident.    Mrs. Hodges testified that she winterized the
pool on Saturday, September  16th, the day before the
McGuires visited.    When this task was completed, she
testified that she closed the gate, made certain the latch
was down and secured the chain around the gate and gatepost
by wrapping the chain in a  “figure eight configuration.”
She confirmed that she knew that the lock was missing when
she wrapped the chain around the gatepost on September
16th.    Mrs. Hodges also testified that on Sunday, September
17th, prior to the arrival of the McGuires, she saw the
pool and the gate and confirmed that the chain was on the
gate as she had  “left it that Saturday night.”
Mrs. Hodges’ niece, Dawn Fields, testified that she
also visited with Mrs. Hodges on the day of the accident.
Fields testified that Mrs. Hodges told her that she  “had
been in the pool earlier that day the day Cody drowned,”
which was Sunday, September  17th.    Fields also testified
that Mrs. Hodges told her that she had  “put the chain
around the fence” but  “didn’t tell  [Fields] how she put it
around the fence.”    Fields next saw the gate after Thomas
came to the house to call  911, and the gate  “was standing
wide open.”
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Thomas testified that the chain was wrapped around the
gate and the gatepost when he and Stuart found Cody, and he
“pull[ed] it  .  .  . pretty hard” and  “had to yank the chain
off” to open the gate.    Thomas also testified that  “it took
a good  10 seconds” for him to release the chain from the
gate when trying to reach Cody.    However, in announcing his
decision from the bench, the trial judge observed that
Thomas’ testimony  “had problems.”
Stuart testified that during the search for Cody, he
was within ten feet of the fence when he spotted his son in
the pool.    He immediately ran to the fence, used his hands
for balance and jumped over the fence and into the pool
area.    Stuart could not remember whether the gate was open
or closed when he jumped into the pool area, and he could
not remember whether Thomas had to open the gate.
McGuire testified that earlier in the day, when she
called her son away from the fence, the gate was closed and
she  “could see the chain in Cody’s hands” but she  “did not
know if there was a lock there or not.”
The jury returned a verdict in favor of McGuire in the
amount of  $217,348.95, plus pre-judgment interest.    Mrs.
Hodges then moved to set aside the verdict.    The trial
court considered post-trial submissions, reviewed the
record, and sustained Mrs. Hodges’ motion to set aside the
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jury verdict.    The trial court concluded that the evidence
at trial failed to establish that the Building Code
violations relied upon by McGuire were a proximate cause of
Cody’s death.    We awarded McGuire this appeal.
II. ANALYSIS
The trial court's authority to set aside a jury
verdict is limited and should be exercised  “only if a jury
verdict is plainly wrong or without credible evidence to
support it.”    Jenkins v. Pyles,  269 Va.  383,  388,  611
S.E.2d  404,  407  (2005); see also Cohn v. Knowledge
Connections, Inc.,  266 Va.  362,  366,  585 S.E.2d  578,  581
(2003); Shalimar Dev., Inc. v. FDIC,  257 Va.  565,  569-70,
515 S.E.2d  120,  123  (1999); Henderson v. Gay,  245 Va.  478,
480,  429 S.E.2d  14,  16  (1993); Code  §  8.01-430.    If the
evidence adduced at trial is conflicting on a material
point, or if reasonable persons may draw different
conclusions from the evidence, or if a conclusion is
dependent on the weight the fact finder gives to the
testimony, a judge may not substitute his or her conclusion
for that of the jury merely because he or she would have
reached a different result.    Jenkins,  269 Va. at  388,  611
S.E.2d at  407; see also Cohn,  266 Va. at  366,  585 S.E.2d at
581; Shalimar Dev.,  257 Va. at  570,  515 S.E.2d at  123;
Henderson,  245 Va. at  480-81,  429 S.E.2d at  16.
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Because the jury's function is to determine the
credibility of the witnesses, weigh the evidence, and
resolve all conflicts in the evidence,  “[i]f there is
credible evidence in the record which supports the jury’s
verdict, we must reinstate that verdict and enter judgment
thereon.”    Rogers v. Marrow,  243 Va.  162,  166,  413 S.E.2d
344,  346  (1992); see also Hoar v. Great E. Resort Mgmt.,
Inc.,  256 Va.  374,  378,  506 S.E.2d  777,  780  (1998); Carter
v. Lambert,  246 Va.  309,  314,  435 S.E.2d  403,  405-06
(1993).    In making this determination, we give the
recipient of the jury verdict the benefit of all
substantial conflicts in the evidence, as well as the
reasonable inferences that may be drawn from the evidence.
Cohn,  266 Va. at  366,  585 S.E.2d at  581; Shalimar Dev.,  257
Va. at  570,  515 S.E.  2d at  123; Henderson,  245 Va. at  481,
429 S.E.  2d at  16.
To establish negligence sufficient to sustain a
judgment against Mrs. Hodges, McGuire was required  “to show
the existence of a legal duty, a breach of the duty, and
proximate causation resulting in damage.”    Atrium Unit
Owners Ass’n v. King,  266 Va.  288,  293,  585 S.E.2d  545,  548
(2003); see also 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).    By alleging the
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violation of the Building Code, McGuire presented a claim
of negligence per se.    MacCoy v. Colony House Builders,
Inc.,  239 Va.  64,  69,  387 S.E.2d  760,  763  (1990); see also
Schlimmer v. Poverty Hunt Club,  268 Va.  74,  79,  597 S.E.2d
43,  46  (2004).
The doctrine of negligence per se represents the
adoption of "the requirements of a legislative enactment as
the standard of conduct of a reasonable  [person]."    Butler
v. Frieden,  208 Va.  352,  353,  158 S.E.2d  121,  122  (1967).
A party relying on negligence per se does not need to
establish common law negligence provided the proponent
produces evidence supporting a determination that the
opposing party violated a statute enacted for public
safety, that the proponent belongs to the class of persons
for whose benefit the statute was enacted and the harm
suffered was of the type against which the statute was
designed to protect, and that the statutory violation was a
proximate cause of the injury.    Halterman v. Radisson Hotel
Corp.,  259 Va.  171,  176-77,  523 S.E.2d  823,  825  (2000);
Virginia Elec. & Power Co. v. Savoy Constr. Co.,  224 Va.
36,  45,  294 S.E.2d  811,  817  (1982).
While violation of such a statute provides the
elements of a duty and breach, a plaintiff has not proved
actionable negligence unless the plaintiff also proves that
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the failure to adhere to the statutory requirement was a
proximate cause of the injury.                                       “[A] mere breach of a
particular duty imposed by statute does not make the
violator guilty of actionable negligence, which will
support a recovery for damages unless such violation was
the proximate cause of the injury.”    Hamilton v. Glemming,
187 Va.  309,  317,  46 S.E.2d  438,  442  (1948).
Whether the statutory violation was a proximate cause
of the injury is generally a factual issue to be decided by
the trier of fact.    Schlimmer,  268 Va. at  79,  597 S.E.2d at
46.    Thomas v. Settle,  247 Va.  15,  20,  439 S.E.2d  360,  363
(1994).    Similarly, if the violation of the statute is in
dispute, that issue is also for the trier of fact.
Schlimmer,  268 Va. at  79,  597 S.E.2d at  46.    Kimberlin v.
PM Transp., Inc.,  264 Va.  261,  268,  563 S.E.2d  665,  668
(2002).
In the case at bar, the evidence was clearly
sufficient, and the trial court ruled as a matter of law,6
that Mrs. Hodges violated the Building Code because the
pool gate latch was not self-latching and the latch itself
was substantially lower  (32 inches from the ground instead
of  48 inches) than required.    Cody was clearly within the
6 Jury Instruction Number  8 at trial stated:  “As a
matter of law the defendant was negligent.”
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class of individuals meant to be protected because Section
616.9 of the National Building Code specifically required
the fence to make the pool entirely  “inaccessible to small
children.”    The harm suffered here, Cody’s drowning, was
the type against which the statute was designed to protect.
The case then turns on whether McGuire, as plaintiff,
produced credible evidence to show that the foregoing
statutory violations by Mrs. Hodges were a proximate cause
of Cody’s death.
McGuire contends that she presented sufficient
credible circumstantial evidence that allowed the jury to
draw the permissible inference that Cody accessed the pool
through the gate by pulling on the chain, lifting the latch
that was only thirty-two inches from the ground, and then
slipped through the gate into the pool area.    McGuire
argues that her burden on appeal is to show that Cody’s
entry through the defective gate was probable, rather than
merely possible, and she is not required to exclude all
other hypotheses.    Further, McGuire avers that the jury was
able to consider the credibility of Mrs. Hodges, her niece
and son, among others, and that the weight of the evidence
demonstrated actionable negligence caused by Mrs. Hodges.
Mrs. Hodges responds that it was McGuire’s burden to
show Cody accessed the pool as a result of the Building
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Code violations and that the evidence failed to show that
any defect in the pool gate was a proximate cause of Cody’s
death.    Mrs. Hodges contends that McGuire simply failed to
meet her burden of proof because she failed to show how
Cody accessed the pool, and thus the jury impermissibly
presumed negligence just because an accident occurred.
Mrs. Hodges also responds that the jury’s decision was
“nothing but their own conjecture and speculation as to how
Cody entered the pool.”    Mrs. Hodges concludes that the
trial court properly set aside the jury verdict because
McGuire  “was unable to satisfy her burden of proof.”
We agree with McGuire that the trial court erred in
setting aside the jury verdict.    The circumstantial
evidence in this case was sufficient to support the
decision reached by the jury that Mrs. Hodges’ negligence
was a proximate cause of Cody’s death.
Mrs. Hodges’ post-verdict motion to set aside the jury
verdict, and the trial court’s decision to do so, focused
primarily on our holding in Atrium Unit Owners Association.
In that case, a condominium unit owner was the victim of a
burglary with no sign of forced entry.                         266 Va. at  290-91,
585 S.E.2d at  545-46.    The condominium association’s copy
of the owner’s key was missing, and the owner alleged this
negligence concerning the key was a proximate cause of her
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damages.    Id.    Evidence at trial in Atrium demonstrated the
owner’s sliding glass door was unlocked, providing a means
of access other than by the missing key.    Id. at  291,  585
S.E.2d at  546-47.    We reversed the trial court’s judgment
confirming the jury’s verdict because  “there was nothing in
the record from which the jury could reasonably infer a
causal connection between  [the defendant’s] alleged
negligence and the damages  [the plaintiff] sustained.”    Id.
at  296,  585 S.E.2d at  549.
Like Atrium, the case at bar is one where the proof is
entirely by circumstantial evidence.                              “Circumstantial
evidence is proof of a series of other facts than the fact
in issue, which by experience have been found so associated
with that fact, that, in the relation of cause and effect,
they lead to a satisfactory and certain conclusion.”    Ryan
v. Maryland Cas. Co.,  173 Va.  57,  62,  3 S.E.2d  416,  418
(1939).    Circumstantial evidence in a case 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).    When predicate facts are proven and the
jury can draw a reasonable inference without resorting to
speculation or conjecture, the decision whether to draw the
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inference is the jury’s.    O'Brien v. Everfast, Inc.,  254
Va.  326,  330,  491 S.E.2d  712,  714  (1997).
The standard of review directs that we consider
whether the circumstantial evidence was sufficient for the
jury to conclude that Cody’s death was probably, rather
than merely possibly, the result of Mrs. Hodges’ negligence
regarding the pool gate.    As noted above, evidence heard by
the jury permitted it to conclude that Mrs. Hodges had
installed a defective gate which offered a young child
access to the swimming pool because the latch was not above
his reach.    Testimony at trial described an unlocked gate,
secured only by a chain, which the young boy was attempting
to open shortly before he was discovered floating in the
pool.    The evidence was in question between Mrs. Hodges’
testimony that she left the pool gate firmly secured the
day before the accident and the niece’s testimony that Mrs.
Hodges reentered the pool area on September  17th without
describing the status of the chain on the gate.    While
McGuire admitted to seeing the chain on the gate, she did
not know whether the gate was secured.
The only evidence directly supporting as fact that the
gate was well secured at the time of the drowning was the
testimony of Thomas, who claimed the chain was wound such
that he  “had to pull it loose” and it took him ten seconds
14




to release it.    However, as the trial court implied, the
jury was free to discredit Thomas’ testimony, and it was
unnecessary that McGuire prove the chain was fully removed
from the gate or that Cody fully opened the gate.    It was
sufficient to prove Mrs. Hodges’ causal negligence if the
jury could reasonably infer the non-self-latching gate
could be opened enough for Cody, a  30-month old child, to
slip between the gate and the gatepost even with the chain
still wrapped in some fashion around the gate so as to
prevent entry by an adult.
Mrs. Hodges did not present evidence, nor does she
argue on appeal, that Cody gained access to the pool by
scaling the fence or in some other manner than by the gate.
Instead, she relies on the argument that McGuire did not
carry her burden of proof that Cody used the gate in order
to support the trial court’s decision to set aside the
jury’s finding of negligence.
However, this case is unlike Atrium in several
respects.    First, the evidence of Cody pulling on the chain
shortly before he was found in the pool would be equivalent
to a condominium association employee in Atrium being seen
with the missing key outside the condominium owner’s
residence before the break-in: a circumstance that did not
occur.                                                          266 Va. at  293-96,  585 S.E.2d at  548-49.    In
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addition, there was no evidence presented of an alternative
means of access to the pool other than the defective gate,
whereas the unlocked sliding glass door provided such an
alternative in Atrium.    Id.    Accordingly, Atrium does not
represent applicable precedent for the trial court’s
decision to set aside the jury’s verdict.
The jury was able to consider the conflicting
testimony and draw the permissible inference that a
proximate cause of Cody’s death was probably Mrs. Hodges’
failure to fully secure the defective gate, allowing Cody
to slip into the pool area by that means.    The facts,
although conflicting, were sufficiently established for the
jury to draw an inference that Mrs. Hodges’ negligence
caused Cody’s death by  “a probability rather than a mere
possibility.”    Southern States,  223 Va. at  657,  292 S.E.2d
at  335.    McGuire thus presented credible, circumstantial
evidence at trial that supported the jury’s verdict.    See
Rogers,  243 Va. at  166,  413 S.E.2d at  346.
It was the province of the jury, not the court, to
weigh the evidence and consider the credibility of the
witnesses.    See Hoar,  256 Va. at  378,  506 S.E.2d at  780;
Carter,  246 Va. at  314,  435 S.E.2d at  405-06; and Rogers,
243 Va. at  166,  413 S.E.2d at  346.    Given the conflicting
circumstantial evidence, the jury properly reviewed the
16




credibility of the witnesses and weighed the evidence in
reaching the verdict.    We must therefore reinstate the jury
verdict because credible evidence supports it.    See Hoar,
256 Va. at  378,  506 S.E.2d at  780; Carter,  246 Va. at  314,
435 S.E.2d at  405-06; Rogers,  243 Va. at  166,  413 S.E.2d at
346.
III. CONCLUSION
For the foregoing reasons, we will therefore reverse
the judgment of the trial court, reinstate the jury's
verdict, and enter final judgment for McGuire.
Reversed and final judgment.
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