GREGORY DEMOND, COADMINISTRATOR(ESTATE OF BENJAMIN DEMOND), ET AL.
v.
PROJECTSERVICE, LLC, ET AL.
Argued
April 30 and May 1, 2018
Procedural
History
Action
to recover damages for, inter alia, the wrongful death of the
named plaintiff's decedent, and for other relief, brought
to the Superior Court in the judicial district of Waterbury,
where the case was transferred to the Complex Litigation
Docket; thereafter, the trial court, Zemetis, J., granted in
part the motions for summary judgment filed by the named
defendant et al.; subsequently, the action was withdrawn as
to O, R & L Facility Services, LLC; thereafter, the case
was tried to the jury before Zemetis, J.; verdict for the
plaintiffs; subsequently, the trial court, Zemetis, J.,
granted the plaintiffs' motion for additur and rendered
judgment for the plaintiffs, from which the plaintiffs and
the named defendant et al. filed separate appeals. Reversed
in part; judgment directed.
Daniel
J. Krisch, with whom were Rachel J. Fain and, on the brief,
Michelle I. Schaffer, James M. Campbell, pro hac vice, and
Jacob J. Lantry, for the appellant in Docket No. SC 20025 and
the appellee in Docket No. SC 20028 (defendant Alliance
Energy, LLC).
Randy
Faust, pro hac vice, with whom were Stephen G. Murphy, Jr.,
and, on the brief, Christopher F. Wanat, for the appellant in
Docket No. SC 20026 and the appellee in Docket No. SC 20028
(named defendant).
A.
Jeffrey Somers, for the appellant in Docket No. SC 20027 and
the appellee in Docket No. SC 20028 (defendant 4MM, LLC).
Karen
L. Dowd and Brendon P. Levesque, with whom, on the brief, was
Wesley W. Horton, for the appellants in Docket No. SC 20028
and the appellees in Docket Nos. SC 20025, SC 20026 and S.C.
20027 (plaintiffs).
Palmer, McDonald, Robinson, D'Auria, Mullins, Kahn and
Ecker, Js. [*]
OPINION
ECKER,
J.
Section
324A of the Restatement (Second) of Torts imposes negligence
liability, when certain conditions are met, on a party whose
negligent performance of a contractual undertaking causes
foreseeable physical harm to a nonparty to the contract. The
present appeals require us to determine the scope of this
duty under unusual circumstances. For approximately one week
preceding March 9, 2012, a temporarily homeless man named
Willis Goodale lived out of his Jeep at the Montville Service
Plaza (service plaza) located on Interstate 395 (I-395) in
Montville. On the evening of March 9, after consuming a large
amount of alcohol while parked at the service plaza, Goodale
drove his Jeep onto I-395, where he caused a multivehicle
crash. Benjamin Demond was killed. Demond's young sons,
Alexander Demond (Alexander) and Nicholas Demond (Nicholas),
were severely injured, as was Andrew Crouch, the driver of
another vehicle on the roadway at the time. The present
lawsuit was brought on behalf of these victims against the
parties responsible for operating and maintaining the service
plaza. The theory of negligence underlying the
plaintiffs' lawsuit derives from a contract (concession
agreement) between the named defendant, Project Service, LLC
(Project Service), and the Connecticut Department of
Transportation (DOT), which owned the service plaza. The
concession agreement imposed the responsibility on Project
Service to operate and maintain the service plaza in all
respects. Project Service subcontracted the day-to-day
operation of the service plaza, or certain portions of it, to
the defendant Alliance Energy, LLC (Alliance), which, in
turn, subcontracted the operation of the convenience mart,
parking area and plaza to the defendant 4MM, LLC (4MM), while
retaining control over the fuel service area. As part of the
concession agreement, Project Service and its subcontractors
agreed not to allow the consumption of alcohol or loitering
at the service plaza.
The
plaintiffs alleged that the defendants created a public
nuisance by permitting Goodale to loiter and to consume
alcohol on the service plaza premises, and also breached a
duty owed to passing motorists, arising under § 324A of
the Restatement (Second), to protect them from the increased
risk of harm created by the defendants' failure to
perform their contractual obligations.[1] The trial court
rendered summary judgment on the plaintiffs' public
nuisance claims but submitted their negligence claims to the
jury. The jury returned a verdict in the plaintiffs'
favor based on its express findings that the defendants were
liable in negligence under the principles set forth in §
324A. The trial court rendered judgment against the
defendants in the amount of $5, 347, 000.[2]
On
appeal, [3] the defendants contend that their
contractual undertaking to prohibit loitering and alcohol
consumption at the service plaza did not create a duty to
third-party motorists injured off the service plaza premises
by a drunk driver who became intoxicated at the service
plaza; the plaintiffs, in their cross appeal, contend that
the trial court improperly rendered summary judgment on their
public nuisance claims. We conclude that the defendants'
contractual undertaking did not create a duty to the
plaintiffs, and the plaintiffs' public nuisance claims
fail as a matter of law. We therefore reverse in part the
judgment of the trial court.
I
The
jury reasonably could have found the following facts. For
approximately one week leading up to March 9, 2012, Goodale,
who was temporarily homeless, lived in his Jeep in the
parking lot of the service plaza on I-395. The service plaza
was owned by the DOT. It was operated and maintained at all
relevant times by Project Service pursuant to the concession
agreement between Project Service and the DOT. Project
Service subcontracted the day-to-day operation of the service
plaza, or certain portions of it, to Alliance, which operated
the fuel service area but subcontracted the operation of the
convenience mart, parking area and plaza to 4MM. The
concession agreement provided that Project Service and its
subcontractors would not allow the consumption of alcohol or
loitering at the service plaza (no alcohol/no loitering
provisions).[4]
Goodale
was an alcoholic. During the time he lived in his Jeep at the
service plaza, he frequented the service plaza's
convenience store to buy food and nonalcoholic beverages, to
use the bathroom, and to charge his cell phone. During that
time, Goodale told a store employee that he would be staying
at the service plaza until he could be admitted to the
Stonington Institute, a treatment facility for alcohol and
substance abuse. Goodale drank one-half gallon of vodka every
two days while living at the service plaza, and some of the
employees working at the service plaza were aware of his
consumption of alcohol.
On
March 9, 2012, Goodale spent a portion of the day drinking
vodka in his Jeep while parked at the service plaza. At some
point during the evening, he drove the Jeep from the parking
lot onto the on-ramp to I-395 southbound. Goodale felt dizzy
and immediately pulled to the shoulder, where he slept for
approximately one to one and one-half hours. Upon awakening,
Goo-dale decided to return to the service plaza by driving
south a short distance on I-395 to an emergency turnaround in
the median of the highway, intending to use the turnaround to
access the northbound lanes of I-395 and then drive to the
next emergency turnaround to return to the service plaza.
When Goodale attempted to cut across the southbound lanes of
I-395 to the turnaround, he struck a Nissan sedan being
driven by Demond. Demond's sons, Alexander, aged six, and
Nicholas, aged four, were in car seats in the backseat of the
sedan. The collision caused Demond to lose control of the
Nissan, and he veered through the turn-around into the
oncoming northbound traffic. Demond's Nissan hit a Ford
Explorer driven by Crouch head on, tumbled end over end, hit
another vehicle and then came to rest. The results were
catastrophic. Demond was killed in the crash, and Alexander,
Nicholas and Crouch were severely injured. Testing of a blood
sample taken from Goodale one hour after the crash showed
that his blood alcohol level was .25 milligrams per
deciliter, well over the legal limit.
The
plaintiffs brought this action against Project Service,
Alliance and 4MM, among others.[5] The second amended complaint
alleged that the March 9, 2012 crash was the result of the
defendants' negligent conduct, including, among other
things, their failure to notify state or local police that
Goodale was living at the service plaza and consuming alcohol
there, or to take other steps to prevent him from engaging in
those activities, as required by the no alcohol/no loitering
provisions of the concession agreement and the various
subcontracts. The plaintiffs also alleged that the defendants
had maintained a public nuisance by allowing Goodale to live
and to consume alcohol at the service plaza.
The
defendants all filed motions for summary judgment. Those
motions used variations on the same theme to attack the
negligence claims, with the common point being that the
defendants owed no duty to the plaintiffs under the
circumstances. Project Service relied on a number of cases
holding that a party in its position has a legal duty to take
steps to prevent another person from harming a third party
only if the third party is an ‘‘identifiable
victim, '' and contended that motorists traveling on
I-395 were not identifiable victims under the circumstances.
Alliance, for its part, contended that it had no duty to the
plaintiffs because it was responsible only for the fuel
service area, and Goodale had not consumed alcohol or
loitered in that location. Alliance also contended that a
person in control of premises has no duty to protect
motorists from persons who consume alcohol on the premises
but cause harm off the premises. 4MM contended that it had no
duty to the plaintiffs because Goodale's criminal
conduct, driving under the influence of alcohol, was a
superseding cause of the crash.
As to
the public nuisance claims, Project Service contended that
those claims failed because they were derivative of the
negligence claims. Alliance contended that the claims failed
because it had no duty to the plaintiffs and because its
‘‘use of the land did not have a natural tendency
to create a danger from motor vehicle accidents on the
interstate highway, '' and 4MM contended that a
garden variety premises liability claim did not give rise to
a public nuisance claim.
The
plaintiffs opposed summary judgment primarily on the ground
that the noalcohol/no loitering provisions of the concession
agreement were ‘‘intended to protect the public,
not only at the plaza, but those passing motorists on the
highway in proximity to the plaza.'' Their central
argument was that the defendants were liable under §
324A of the Restatement (Second), because, among other
reasons, the no alcohol/no loitering provisions gave rise to
an ‘‘undertaking'' by the defendants to
use due care to prevent harm of this nature from befalling
the plaintiffs and other travelers. With respect to the
public nuisance claims, the plaintiffs contended that the
defendants had interfered with the right of the public to
travel on the highway by permitting Goodale to live and to
consume alcohol at the service plaza.
At oral
argument on the motions for summary judgment, the trial court
expressed its views that the issues arising from the
negligence claims were ‘‘novel, '' that
none of the cases cited by the parties was directly on point,
and that ‘‘we're stretching every aspect of
tort liability to see whether there is responsibility
here.'' The trial court's written memorandum of
decision reflects the court's serious engagement with the
legal issues presented, as well as the difficulty posed by
some of those issues. The trial court initially set forth the
general rule that ‘‘[w]hether a duty exists is a
question of law for the court . . . .'' (Internal
quotation marks omitted.) To answer that question, the court
discussed this court's only decision addressing the
applicability of § 324A of the Restatement (Second)
under Connecticut law, Gazo v. Stamford,
255 Conn. 245, 765 A.2d 505 (2001), which held that a
contractor who undertakes the snow removal duties of a
landowner is liable to a plaintiff who slips as a result of
the contractor's negligent performance. Id.,
253; see id. (‘‘[u]nder § 324A [b]
of the Restatement [Second] [the defendant contractor] is
subject to liability to the plaintiff for his physical
injuries if the plaintiff can show that [the contractor]
failed to exercise reasonable care when performing the duty
owed by [the landowner who hired the contractor] to the
plaintiff''); see also id., 250 n.4
(‘‘[i]t should be emphasized that [the
contractor] may be held liable to the plaintiff [under §
324A (b)] only to the extent that [1] his contractual
undertaking permits, and [2] his breach of duty to the
plaintiff is part and parcel of [the landowner's] duty to
the plaintiff'').
Contrary
to its initial inclination to decide the question of duty as
a matter of law, the trial court ultimately concluded that
‘‘[t]he question of whether any or all of the
defendants owe a legal duty of care to the plaintiffs is a
question of fact for the trier of fact.'' The court
did not directly address whether (or why) the no alcohol/ no
loitering provisions created a duty to motorists on
I-395, but it appears to have assumed that the duty
would apply to passing motorists under § 324A of the
Restatement (Second) if harm to those motorists was a
foreseeable result of the defendants' alleged failure to
exercise reasonable care in enforcing the no alcohol/ no
loitering provisions. The court denied the defendants'
motions for summary judgment as to the negligence claims on
the ground that ‘‘[t]he finder of fact may
conclude that [§ 324A] (a) and/or (b) [of the
Restatement (Second)][6] impose a legal duty on any or all of the
defendants for failure to adequately train, supervise,
[and/or] implement the [relevant portions of the concession
agreement] or otherwise comply with contractual obligations
with respect to . . . Goodale's loitering and
intoxication at the [s]ervice [p]laza.'' (Footnote
added.) The trial court granted, however, the defendants'
motions for summary judgment with respect to the public
nuisance claims, on the ground that ‘‘there is no
claim that unreasonable or unlawful use of the
defendant(s)' land interfered with
public rights.'' (Emphasis in original.)
The
plaintiffs thereafter filed a third amended complaint, which
is the operative pleading for purposes of these appeals, in
which they reasserted the negligence claims against the
defendants. At the conclusion of the plaintiffs'
case-in-chief at trial, Alliance filed a motion for a
directed verdict in which it renewed its claim that it had no
duty to protect the plaintiffs from Goodale's tortious
conduct because a person in control of premises has no duty
to protect motorists from persons who consume alcohol on the
premises and then drive off the premises. The trial court
denied the motion.
Two
particular circumstances regarding the submission of the case
to the jury are relevant on appeal. First, although the trial
court previously had determined, in its summary judgment
ruling, that the existence of a duty owed by the defendants
to the plaintiffs presented a factual issue for the jury, the
court instructed the jury at trial that the defendants owed a
duty of care to the plaintiffs for purposes of determining
liability under § 324A of the Restatement (Second)
as a matter of law.[7]Second, the core jury findings
with respect to liability under § 324A were made in
response to written interrogatories. These interrogatories
required the jury to determine whether each of the defendants
had negligently performed their contractual undertaking
pursuant to the concession agreement and safety plan and the
various subcontracts, and, if so, whether that
defendant's negligence had increased the risk of harm to
the plaintiffs beyond that which existed without the
contractual undertaking (the determinative consideration
under §324A [a]), or induced reliance by the DOT or the
plaintiffs (the determinative consideration under § 324A
[c]).[8]
The
jury found that the defendants each were negligent, that
their negligence increased the risk of harm to the
plaintiffs, and that the plaintiffs or another had relied on
each defendant to exercise reasonable care. Accordingly, the
jury rendered a verdict in favor of the plaintiffs. The
defendants filed timely motions to set aside the verdict and
to direct judgment in their favor as a matter of law. In a
supporting memorandum, adopted in full by Project Service,
Alliance argued that it had no duty to the plaintiffs as a
matter of law under § 324A (a) of the Restatement
(Second) because the contractual undertaking to prevent the
consumption of alcohol and loitering at the service area did
not increase the risk of harm to motorists on I-395 beyond
what the risk would have been if there had been no such
contractual undertaking. Alliance further contended that it
had no duty to the plaintiffs under § 324A (c) because
‘‘they were not within the scope of persons for
whom Alliance had a contractual responsibility, i.e.,
‘patrons and [e]mployees of the [p]remises,'
'' and, therefore, the plaintiffs could not have
relied on Alliance to protect them from harm. Finally,
Alliance contended that no reasonable juror could have
concluded that its negligence was a proximate cause of the
plaintiffs' injuries.
The
trial court denied the defendants' postverdict motions.
With respect to the duty issue, the trial court stated that
it had already found, in its ruling on the defendants'
motions for summary judgment, that ‘‘a legal duty
of care existed between the defendants and the plaintiffs as
the context of their relationship created the duty. . . . The
contracts created, and the defendants willingly assumed, the
duty owed to [the] plaintiffs.'' The court also
determined that the jury reasonably could have found that the
defendants' representatives had agreed that the no
alcohol/no loitering provisions were intended to protect
motorists on the adjacent highway because
‘‘[e]ach [of the relevant witnesses] acknowledged
that if people consumed alcohol while [at] highway service
plazas, they would increase the risk of harm to passing
motorists. Each acknowledged that motorists leaving the
highway service plaza must travel on or along an interstate
highway. Allowing intoxicated motorists to live [i]n highway
service plazas, and operate motor vehicles from service
plazas onto adjacent interstate highways, intensifies and
concentrates the risk of collisions caused by drunk drivers
in the area of service plazas.''[9]
These
appeals followed. The defendants contend in their appeals
that the trial court improperly denied their motions to set
aside the verdict and to direct judgment in their favor on
the negligence claims because they owed no duty to the
plaintiffs and have no liability to them under § 324A
(a) or (c) of the Restatement (Second). The plaintiffs
contend in their cross appeal that the trial court improperly
granted summary judgment in the defendants' favor on the
public nuisance claims.[10] We agree with the defendants and
disagree with the plaintiffs.
II
We
first address whether the defendants owed the plaintiffs a
duty of care. The defendants argue that the trial court
improperly denied their motions to set aside the verdict and
to direct judgment in their favor on the negligence claims as
a result of the court's improper determination that the
defendants owed a duty of care to the plaintiffs under §
324A of the Restatement (Second). Their argument can be
summarized succinctly: ‘‘Project Service [and the
other defendants] did not contractually undertake a duty to
prevent drunk driving on public
highways.''[11] In response, the plaintiffs renew their
argument, which succeeded in the trial court, that Project
Service ‘‘undert[ook] . . . for consideration, to
render services to another which [it] should recognize as
necessary for the protection of a third person or his things,
when [it] contractually obligated [itself] to operate the . .
. service plaza in a safe and secure manner for the benefit
of its patrons and the traveling public.'' (Internal
quotation marks omitted.) The plaintiffs further contend that
the jury reasonably could have found that (1) liability
attaches under § 324A (a) because Project Service's
failure to exercise due care in the performance of its
contractual duties increased the risk of harm to passing
motorists, and/or (2) liability attaches under § 324A
(c), because (i) the plaintiffs relied on Project Service to
prevent people from drinking at the service plaza and then
using I-395 and would have avoided the highway if they had
known that Project Service was not exercising due care,
and/or (ii) the DOT relied on Project Service to prevent
people from drinking at the service plaza and then using
I-395, and would have taken precautions itself if not for
Project Service's promise.
Our
standard of review is well settled. ‘‘Directed
verdicts are not favored. . . . A trial court should direct a
verdict only when a jury could not reasonably and legally
have reached any other conclusion. . . . In reviewing the
trial court's decision [to deny the defendant's
motion for a directed verdict] we must consider the evidence
in the light most favorable to the plaintiff. . . . Although
it is the jury's right to draw logical deductions and
make reasonable inferences from the facts proven . . . it may
not resort to mere conjecture and speculation. . . . A
directed verdict is justified if . . . the evidence is so
weak that it would be proper for the court to set aside a
verdict rendered for the other party. . . . The foregoing
standard of review also governs the trial court's denial
of the defendant's motion for judgment notwithstanding
the verdict because that motion is not a new motion, but [is]
the renewal of [the previous] motion for a directed
verdict.'' (Citation omitted; internal quotation
marks omitted.) Bagley v. Adel Wiggins
Group, 327 Conn. 89, 102, 171 A.3d 432 (2017).
Under
Connecticut law, ‘‘[t]he existence of a duty is a
question of law and only if such a duty is found to exist
does the trier of fact then determine whether the defendant
[breached] that duty in the particular situation at hand. . .
. If a court determines, as a matter of law, that a defendant
owes no duty to a plaintiff, the plaintiff cannot recover in
negligence from the defendant.'' (Internal quotation
marks omitted.) Grenier v. Commissioner of
Transportation, 306 Conn. 523, 538- 39, 51 A.3d 367
(2012). ‘‘Duty is a legal conclusion about
relationships between individuals, made after the fact, and
imperative to a negligence cause of action. The nature of the
duty, and the specific persons to whom it is owed, are
determined by the circumstances surrounding the conduct of
the individual.'' (Internal quotation marks omitted.)
Munn v. Hotchkiss School, 326 Conn. 540,
548, 165 A.3d 1167 (2017). Foreseeability is a critical
factor in the analysis, because no duty exists unless
‘‘an ordinary person in the defendant's
position, knowing what the defendant knew or should have
known, would anticipate that harm of the general nature of
that suffered was likely to result . . . .''
(Internal quotation marks omitted.) Id.; see also
Ruiz v. Victory Properties, LLC, 315 Conn.
320, 328, 107 A.3d 381 (2015). Our law makes clear that
foreseeability alone, however, does not automatically give
rise to a duty of care: ‘‘[A] simple conclusion
that the harm to the plaintiff was foreseeable . . . cannot
by itself mandate a determination that a legal duty exists.
Many harms are quite literally foreseeable, yet for pragmatic
reasons, no recovery is allowed. . . . A further inquiry must
be made, for we recognize that duty is not sacrosanct in
itself . . . but is only an expression of the sum total of
those considerations of policy [that] lead the law to say
that the plaintiff is entitled to protection. . . . The final
step in the duty inquiry, then, is to make a determination of
the fundamental policy of the law, as to whether the
defendant's responsibility should extend to such
results.'' (Internal quotation marks omitted.)
Munn v. Hotchkiss School, supra, 549-50;
see also Lawrence v. O & G Industries, Inc., 319
Conn. 641, 650, 126 A.3d 569 (2015).
The
duty analysis in the present case is complicated by the
particular context in which the allegations of negligence
arose against these defendants. The parties have framed the
ultimate question as whether, under § 324A of the
Restatement (Second), Project Service's contractual
undertaking to operate the service plaza triggered a duty on
its part to protect motorists on the highway from the risk of
harm created by persons who consume alcohol on the premises
of the service plaza.[12]In answering this question, we must
keep in mind two established principles of Connecticut
negligence law. First, a person typically has no duty of care
to protect third persons from harm caused by a primary
tortfeasor, or to control the conduct of that tortfeasor,
unless there is a special relationship between the defendant
and either the third person or the tortfeasor, or other
exceptional circumstances exist. See Cannizzaro v.
Marinyak, 312 Conn. 361, 366-67, 93 A.3d 584 (2014)
(‘‘[T]here generally is no duty that obligates
one party to aid or to protect another party. . . . One
exception to this general rule arises when a definite
relationship between the parties is of such a character that
public policy justifies the imposition of a duty to aid or to
protect another.'' [Citation omitted; internal
quotation marks omitted.]); see also Doe v. Boy
Scouts of America Corp., 323 Conn. 303, 323-25, 147 A.3d
104 (2016) (discussing affirmative duty of care to protect
minor participants from sexual abuse by patrol leader);
Murdock v. Croughwell, 268 Conn. 559, 566,
848 A.2d 363 (2004) (special relationship of custody or
control may give rise to duty to protect third person from
conduct of another); Fraser v. United
States, 236 Conn. 625, 632, 674 A.2d 811 (1996) (same).
Section 314 of the Restatement (Second) expresses the general
rule in these terms: ‘‘The fact that the actor
realizes or should realize that action on his part is
necessary for another's aid or protection does not of
itself impose upon him a duty to take such action.''
2 Restatement (Second), Torts § 314, p. 116 (1965); see
also 2 Restatement (Third), Torts, Liability for Physical and
Emotional Harm § 37, p. 2 (2012) (updated version of
§ 314 of Restatement [Second]). Due to the increasingly
interdependent nature of our social lives today, in which
many institutional and other caretaking or custodial roles
exist as a matter of course, relationships giving rise to
such a duty of care are not uncommon, but it still is
important to keep in mind that a duty of care does not exist
in the air, and caution must be exercised to ensure that a
special relationship or other factors give rise to such a
duty before negligence liability can be imposed for harm
caused to a third person.[13]
Second,
it is significant to our analysis that an owner or possessor
of property in this state generally cannot be held liable in
negligence for harms caused by adults who consume alcohol on
that property but cause injury only after leaving to drive on
the public roads.[14] This limitation holds true even when the
owner or possessor plays an active role in creating
the risk by actually serving the defendant the
alcohol.[15] See Bohan v. Last, 236
Conn. 670, 676, 674 A.2d 839 (1996) (‘‘[a]lthough
we have never held that purveyors of alcohol have no
[common-law] duty to exercise due care to protect the
foreseeable victims of those who drink and drive, we have,
nonetheless, declined to recognize a claim in
negligence''); Quinnett v. Newman,
213 Conn. 343, 345, 568 A.2d 786 (1990) (‘‘[a]t
common law there is no cause of action based upon negligence
in selling alcohol to adults who are known to be
intoxicated''), overruled on other grounds by
Craig v. Driscoll, 262 Conn. 312, 813 A.2d
1003 (2003); Nolan v. Morelli, 154 Conn.
432, 443, 226 A.2d 383 (1967) (‘‘the plaintiff
has pointed to no common-law duty resting on these
defendants, as sellers, proprietors or otherwise, to [prevent
the tortfeasor, who had purchased and consumed alcohol on
their property, from driving] or otherwise to guard against
injuries sustained at unknown distances from the
defendants' premises and at places and under
circumstances wholly outside the defendants' knowledge or
control'').[16]
With
these background principles in mind, it becomes apparent that
Project Service had no common-law duty, arising from its
status as possessor of the premises, to prevent the risk of
harm to the plaintiffs; the alleged duty derives, if at all,
from Project Service's contractual undertaking to prevent
alcohol consumption and loitering at the service plaza. In
other words, the question in this case is whether Project
Service, by undertaking a contractual obligation to prevent
alcohol consumption and loitering on the premises, assumed a
duty of care to off premises highway travelers that the DOT
did not have in the first instance. The plaintiffs contend
that Project Service's contractual undertaking gave rise
to a duty to protect passing motorists from the risk of harm
caused by persons who consume alcohol at the service plaza
because the no alcohol/no loitering provisions were
‘‘necessary for the protection of''
passing motorists. 2 Restatement (Second), supra, §
324A, p. 142 (‘‘[o]ne who undertakes . . . to
render services to another which he should recognize as
necessary for the protection of a third person . . . is
subject to liability to the third person for physical harm
resulting from his failure to exercise reasonable
care''). They argue that regardless of any limitation
on the usual common-law duties of a property owner, Project
Service assumed a duty to protect passing motorists because
it knew or should have known that its contractual undertaking
to prevent alcohol consumption at the service plaza would
function to protect such motorists from the foreseeable risk
of harm created by persons who consumed alcohol at the plaza
and then drove onto the highway.[17]
In
support of this claim, the plaintiffs cite numerous cases
involving a party's contractual undertaking to keep
premises safe in which the courts held that the undertaking
party had a duty to a third person injured as the result of
the negligent performance of the undertaking. See, e.g.,
Gazo v. Stamford, supra, 255 Conn. 252
(when owner of property abutting public sidewalk had duty to
clear sidewalk of ice and snow, and owner contracted with
defendant to perform that duty, defendant had duty to
plaintiff who slipped on icy sidewalk and was injured
under§ 324A of Restatement [Second]); Clay Electric
Cooperative, Inc. v. Johnson, 873 So.2d 1182,
1187 (Fla. 2003) (electric company that contracted to
maintain street lights on public street had duty to
pedestrian who was killed as result of company's failure
to maintain lights under § 324A);[18] Ironwood
Springs Christian Ranch, Inc. v. Walk to
Emmaus, 801 N.W.2d 193, 200 (Minn.App. 2011) (concluding
that there was genuine issue of material fact as to whether
entity that rented premises from owner had assumed duty to
keep premises safe for benefit of invitee for purposes of
§ 324A); Palka v. Servicemaster Management
Services Corp., 83 N.Y.2d 579, 585-86, 634 N.E.2d 189,
611 N.Y.S.2d 817 (1994) (company that contracted with
hospital to supervise preventative maintenance program was
liable for injuries sustained by nurse when wall-mounted fan
fell on her); Tushaj v. Elm Management
Associates, Inc., 293 A.D.2d 44, 48, 740 N.Y.S.2d 40
(2002) (managing agent of apartment building was liable to
superintendent employed by building owner for injuries
sustained as result of agent's failure to undertake
repairs within its contractual obligation); see also
Marland v. Asplundh Tree Expert Co., Docket
No. 1:14-CV-40 (TS), 2017 WL 639241, *1-2 (D. Utah February
16, 2017) (under Utah law, when power company had duty to
prevent people from coming in contact with power line, and
defendant contracted to undertake that duty on behalf of
power company, defendant had duty to plaintiff who was
injured as result of defendant's negligent performance of
contractual undertaking under § 324A).
We
consider these cases inapposite in the present circumstances,
however, because each involves an undertaking party who takes
on a preexisting duty already owed by the
contracting party (the party hiring the undertaking party) to
the plaintiff. In cases involving a preexisting (sometimes
called a ‘‘pass-through'') duty, the
undertaking party is found to have the same duty to
the injured person as the duty already owed by the
contracting party itself. If Goodale had injured a patron or
employee on the service plaza premises, for example, cases
like Gazo would strongly support the conclusion that
the defendants could be held liable for their negligent
performance of the no alcohol/no loitering provisions because
they undertook the DOT's preexisting duty
‘‘to keep its premises in a reasonably safe
condition'' for the benefit of invitees; (internal
quotation marks omitted) DiPietro v. Farmington
Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951
(2012); which includes the duty to protect invitees from the
dangers created by allowing alcohol consumption on the
premises. See Merhi v. Becker, 164 Conn.
516, 518-23, 325 A.2d 270 (1973) (when defendant union rented
premises where it held picnic for union members and their
guests, who were required to pay admission fee, and defendant
failed to provide adequate security, defendant was liable
when picnic attendee who had been consuming his own alcohol
intentionally drove car toward third person and struck
plaintiff, who was on premises); see also footnote 13 of this
opinion. But this pass-through liability, which is imposed by
§ 324A (b) of the Restatement (Second), is the one
theory of liability under §324A that was unavailable to
the plaintiffs in the present case, because the DOT itself
had no preexisting duty to protect highway travelers from the
risk of harm posed by intoxicated drivers off the premises of
the service plaza. See, e.g., Nolan v.
Morelli, supra, 154 Conn. 443 (when tortfeasor
consumed alcohol on landowner's property, landowner had
no duty to guard against injuries caused by tortfeasor at off
premises location wholly outside of landowner's control).
With
the pass-through cases distinguished, we have arrived at the
true center of the parties' dispute regarding the
existence of a duty owed by the defendants to the plaintiffs.
The plaintiffs argue that a duty of care arose under the
facts of this case because the defendants' contractual
undertaking to prevent consumption of alcohol and loitering
at the service plaza constituted ‘‘services to
another which he should recognize as necessary for protection
of a third person'' under § 324A of the
Restatement (Second) and, therefore, created a duty of
reasonable care owed to the plaintiffs. The plaintiffs
contend that foreseeability is the touchstone of
duty under § 324A-once the defendants agreed to the
undertaking, they assumed a duty of care to all persons who
sustained physical harm as a foreseeable result of the
defendants' negligent performance of that undertaking.
The
defendants propose a very different duty analysis under
§ 324A of the Restatement (Second). They argue that
their contractual obligation was limited to safeguarding
patrons and employees of the service plaza at the service
plaza, period. The defendants contend that, even if harm to
passing motorists on the highway was foreseeable, nothing in
the concession agreement reflects an intention to
safeguard those travelers; no duty to those travelers arose
because the purpose of the contractual undertaking
was not to make the highway safe or to protect travelers on
the highway.
After
careful consideration, we cannot subscribe entirely to the
duty analysis proposed by either side, although, due in part
to the idiosyncratic features of the present case, we end up
adopting an approach closer to the one proposed by the
defendants. Our reservation concerning the defendants'
argument is the undue weight it gives to the contractual
origin of the duty owed to third parties under § 324A of
the Restatement (Second). The third-party duty imposed under
§ 324A is implied in law. It is triggered in the first
instance by a voluntary contractual (or gratuitous)
undertaking, but the duty owed by the undertaking party under
§ 324A, once in existence, is not limited solely by
reference to the underlying contract or defined solely by the
intentions of the contracting parties. The duty of reasonable
care imposed under § 324A exists regardless of whether
there is a contract (the undertaking may be gratuitous) or
whether the plaintiff is a third-party beneficiary of the
contract. The terms of a contract may be relevant to the
existence and scope of an undertaking, but they do not
determine whether a duty exists.[19] Courts construing §
324A consistently have observed that ‘‘liability
. . . does not arise from, nor is it circumscribed by, the
contract [but] arises, if at all, from [the defendant's]
undertaking'' to render services to protect another.
Thompson v. Bohlken, 312 N.W.2d 501, 507
(Iowa 1981); see also Davis v. Protection One
Alarm Monitoring, Inc., 456 F.Supp.2d 243, 251 (D. Mass.
2006) (‘‘the scope of [the] defendant's duty
to exercise due care cannot be limited merely to the precise
boundaries of its contract, but instead are defined by the
scope of the undertaking it is performing''); 2
Restatement (Third), supra, § 43, reporters' note to
comment (h), p. 121 (although ‘‘[t]he existence
of a contract may be relevant to the question of whether an
undertaking exists . . . an undertaking does not require a
valid contract, or indeed any contract, as gratuitous
undertakings are sufficient'' [citation omitted]).
Although the contract may help to define the scope of the
undertaking, ‘‘the congruence between the two
need not be perfect, '' and the ‘‘ability
of an injured party to recover [does not] rise or fall based
on the exact language of the contract (or indeed [on] whether
the parties had formed an enforceable contract at all) . . .
.'' Davis v. Protection One Alarm
Monitoring, Inc., supra, 251.
This
concern, though substantial, does not lead us to conclude
that the duty arising under § 324A of the Restatement
(Second) extends to the outer limits of foreseeability, as
the plaintiffs would have it. The plaintiffs' pure
foreseeability model has superficial appeal because it is
simple, it employs a familiar concept of foreseeability used
in most negligence cases and, not insignificantly, it is
tolerably compatible with the language of §
324A-''should recognize as necessary for protection
of a third person . . . .''[20] Closer examination,
however, gives rise to fundamental concerns that prevent us
from adopting foreseeability as the sole determinant of duty
under § 324A.
As we
have observed, the precise terms of a contractual undertaking
will not strictly delimit the extent of the legal duty to
protect third parties under § 324A of the Restatement
(Second), but it would be anomalous if the nature and scope
of the contractual undertaking were wholly irrelevant to the
nature and scope of the duties arising from it. The
foreseeability reference in § 324A is not free-floating
but instead is anchored to the reasonable expectations of the
undertaking party arising from the services to be
performed. See 2 Restatement (Second), supra, §
324A, p. 142 (referring to ‘‘services . . . which
[the undertaking party] should recognize as necessary for the
protection of a third person''). It makes good sense
that the scope of the duties will not be entirely independent
of the scope of the undertaking when the undertaking is the
original source of the duty. To summarize, under § 324A,
the undertaking party not only will assume duties to third
parties expressly set forth in the contract itself, as well
as pass-through duties owed by the hiring party that are
assigned or transferred to the undertaking party, but also
will assume a duty of care to protect third parties from
foreseeable, physical harm within the scope of the
services to be performed.
Our
conclusion in this regard is fully consistent with the
historical origins of § 324A of the Restatement (Second)
itself. Section 324A derives from the
‘‘modern'' common-law rule, first adopted
a century ago, that a defendant who undertakes to perform
contractual services to another cannot raise a
nonprivity defense against a third person who is
injured by the defendant's negligent performance. See
Glanzer v.Shepard, 233 N.Y. 236, 239, 135
N.E. 275 (1922) (Cardozo, J.) (‘‘We do not need
to state the duty in terms of contract or of privity. Growing
out of a contract, it has none the less an origin not
exclusively contractual. Given the contract and the relation,
the duty is imposed by law . . . .''); see also
Artiglio v.Corning Inc., 18 Cal.4th 604,
613, 957 P.2d 1313, 76 Cal.Rptr.2d 479 (1998) (§ 324A
embodies principle set forth in Glanzer); Kaplan
v.U.S. Bank, N.A., 166 S.W.3d 60, 70 (Mo. App.
2003) (§ 324A embodies ‘‘one of the [well
recognized] exceptions to the privity rule''). The
animating principle behind § 324A recognizes that many
modern and contemporary social activities, including
commercial activities flowing from contractual undertakings,
may have foreseeable effects on strangers to the transaction,
and the law sensibly imposes a duty of due care on the
undertaking party to protect such persons who are put at
increased risk by the negligent performance of the
undertaking. The elimination of a privity defense, however,
does not eliminate all other defenses that an
undertaking party may have regarding the nature and scope of
the duty imposed; nor does the elimination of privity expand
...