Present: All the Justices 

CAROL M. HOLLES, ADMINISTRATRIX 

OF THE ESTATE OF ROSEMARY LOUISE BRABAND 

v. Record No. 980482 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 January 8, 1999 

SUNRISE TERRACE, INC. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Leslie M. Alden, Judge 

 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 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 

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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. 

Holles, 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 

 1

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 charge. 

2

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. 

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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 Braband. 

 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 

$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 

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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 

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that evidence prejudiced Holles. Thus, we are unable to 

consider Holles' first assignment of error. 

 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' argument. 

 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 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 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, 

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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.

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 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.3

 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 

 3

Based on this holding, we do not address Holles' assignment 

of error that she was entitled to a new trial on the issue of 

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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. 1161 (1995). 

 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 

 

damages only on the negligence count. 

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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 court's 

judgment. 

Affirmed.

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