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Demond v. Project Service, LLC

Supreme Court of Connecticut

June 11, 2019

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J., granted in part the motions for summary judgment filed by the named defendant et al.; subsequently, the action was withdrawn as to O, R & L Facility Services, LLC; thereafter, the case was tried to the jury before Zemetis, J.; verdict for the plaintiffs; subsequently, the trial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 ...


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