Argued
November 16, 2017
Procedural
History
Action
to recover damages for personal injuries sustained as a
result of the defendant's alleged negligence, and other
relief, brought to the Superior Court in the judicial
district of Stamford-Norwalk, where the court,
Povodator, J., granted the defendant's
motion to strike; thereafter, the court granted the
defendant's motion for judgment and rendered judgment
thereon, from which the plaintiff appealed.
Reversed; further proceedings.
Thomas
B. Noonan, for the appellant (plaintiff).
James
S. Newfield, with whom, on the brief, was Diana M. Carlino,
for the appellee (defendant).
Gregory J. Pepe filed a brief for the American Medical
Association et al. as amici curiae.
Jennifer L. Cox and Jennifer A. Osowiecki filed a brief for
the Connecticut Hospital Association as amicus curiae.
Emily
B. Rock, Cynthia C. Bott and Julie V. Pinette filed
a brief for the Connecticut Trial Lawyers Association as
amicus curiae.
Palmer, McDonald, Robinson, D'Auria, Mullins, Kahn and
Vertefeuille, Js. [*]
OPINION
PALMER, J.
The
principal issue in this appeal is whether a physician who
mistakenly informs a patient that he does not have a sexually
transmitted disease (STD) may be held liable in ordinary
negligence to the patient's exclusive sexual partner for
her resulting injuries when the physician knows that the
patient sought testing and treatment for the express benefit
of that partner. Under the circumstances alleged, we conclude
that the defendant, Charles Cochran, a physician, owed a duty
of care to the plaintiff, identified by the pseudonym Jane
Doe, even though she was not his patient. Accordingly, we
conclude that the trial court improperly granted the
defendant's motion to strike the plaintiff's one
count complaint and reverse the judgment of the trial court.
The
following facts, as set forth in the plaintiff's
complaint and construed in the manner most favorable to
sustaining its legal sufficiency; see, e.g., Lestorti v.
DeLeo, 298 Conn. 466, 472, 4 A.3d 269 (2010); and
procedural history are relevant to our disposition of this
appeal. In early 2013, the plaintiff began dating her
boyfriend, identified in this action by the pseudonym John
Smith. At all relevant times, the plaintiff and Smith were
involved in an exclusive romantic relationship. At some
point, the couple agreed that, before their relationship
became sexual, they would individually seek testing for STDs.
As of July, 2013, the plaintiff had tested negative for and
did not have any STDs.
At that
time, pursuant to his agreement with the plaintiff, Smith
visited his physician, the defendant, who is a licensed
medical doctor practicing in Norwalk. During Smith's
visit, the defendant asked Smith why he wanted to be tested
again for STDs, as the defendant had tested him just five
months earlier. Smith explained that he wanted to be tested
again for the protection and benefit of his new, exclusive
girlfriend, the plaintiff. The defendant then took a sample
of Smith's blood, arranged for it to be tested for STDs,
and subsequently reviewed the laboratory (lab) test results.
The lab
report that the defendant reviewed included a guide for
reading the test's results. The guide indicated that an
HSV 2 IgG (herpes simplex virus type 2 specific antibody)
result of less than 0.9 is negative for the herpes simplex
virus type 2 (herpes), a result between 0.9 and 1.1 is
equivocal, and a result greater than 1.1 means that the
sample tested positive for herpes. Smith's HSV 2 IgG test
result was 4.43, significantly above the threshold for a
positive herpes diagnosis.
The
defendant delegated to a member of his staff the task of
informing Smith of the results of his test. Even though the
lab report clearly demonstrated a positive herpes diagnosis,
the staff member incorrectly told Smith over the phone that
his STD test results had come back negative.
The
plaintiff's relationship with Smith subsequently became
sexual. Thereafter, the plaintiff began to experience herpes
outbreaks and was diagnosed with herpes. Upon learning of
this, Smith contacted the defendant to inquire further about
his test results. The defendant then informed Smith that he
actually had tested positive for herpes and apologized for
the error.
The
plaintiff brought a one count action against the defendant,
alleging that the defendant had been negligent in various
respects. The defendant moved to strike the complaint on the
basis that the plaintiff's claim sounded in medical
malpractice and, therefore, must fail for lack of any
physician-patient relationship between the plaintiff and the
defendant. The defendant argued in the alternative that, even
if the court construed the plaintiff's claim as sounding
in ordinary negligence, the plaintiff and the defendant were
not involved in any special relationship that would justify
extending a duty of care to her.
The
trial court granted the defendant's motion to strike. The
court did not expressly resolve the issue of whether the
plaintiff's claim sounds in ordinary negligence or
medical malpractice, at once describing the plaintiff as
‘‘seeking to extend medical malpractice liability
of a physician to the sexual partner of a patient''
and referring to the defendant's ‘‘claimed
negligence . . . in reporting the test results.'' The
analysis undertaken by the trial court, however, implies that
it viewed the claim as sounding in ordinary negligence.
Specifically, the court concluded that the claim was governed
by our decision in Jarmie v. Troncale, 306 Conn.
578, 50 A.3d 802 (2012), and applied the framework that we
set out in that case for determining whether a nonpatient may
assert an ordinary negligence claim against a health care
provider. See id., 591-99. Ultimately, the trial
court concluded the defendant did not owe a duty of care to
the plaintiff and, for that reason, granted the
defendant's motion to strike. This appeal
followed.[1]
I
As an
initial matter, we must resolve a dispute between the parties
as to the gravamen of the plaintiff's complaint. As an
alternative ground for affirmance, the defendant contends on
appeal, as he did before the trial court, that the
plaintiff's one count complaint sounds in medical
malpractice. In support of this conclusion, the defendant
points to, among other things, the facts that (1) the
plaintiff alleged that ‘‘[the defendant] had an
obligation to perform the STD tests and [to] report the
results accurately to . . . Smith according to accepted
medical practice and standards, '' (2) the plaintiff
further alleged that the defendant's ‘‘breach
of accepted medical practice and standards'' by
failing to properly treat, test, monitor, and advise Smith,
was the cause of her injuries, and (3) the plaintiff's
counsel attached to the complaint a certificate, pursuant to
General Statutes § 52-190a (a), averring that there were
grounds for a good faith belief that the defendant had
committed ‘‘medical negligence'' in the
‘‘care or treatment'' of Smith. Because a
medical malpractice claim that fails to allege a
physician-patient relationship between a plaintiff and a
defendant is legally insufficient; Jarmie v.
Troncale, supra, 306 Conn. 588-89; and because it is
undisputed that the plaintiff never was a patient of the
defendant, the defendant contends that the trial court
properly struck the complaint.
The
plaintiff responds that, although she attached a certificate
of good faith pursuant to § 52-190a (a) out of an
abundance of caution, her complaint alleges ordinary,
common-law negligence rather than medical malpractice. She
notes that the single count complaint is titled simply
‘‘negligence, '' and it alleges that the
plaintiff's ‘‘injuries were the result of the
negligence and carelessness of the [defendant] . . . in [that
he failed] to properly advise . . . Smith of his STD test
results . . . .'' At no point, moreover, does the
complaint use the term ‘‘medical
malpractice.''
A
We
begin our analysis by reiterating that, although the better
practice may be to include a separate count of the complaint
for each distinct theory of liability, there is no such
requirement. Practice Book § 10-26 provides that,
‘‘[w]here separate and distinct causes of action,
as distinguished from separate and distinct claims for relief
founded on the same cause of action or transaction, are
joined, the statement of the second shall be prefaced by the
words Second Count, and so on for the others . . .
.'' (Emphasis omitted.) In construing an earlier
version of this rule of practice, this court explained that
it has ‘‘uniformly approved the use of a single
count to set forth the basis of a plaintiff's claims for
relief [when] they grow out of a single occurrence or
transaction or closely related occurrences or transactions,
and it does not matter that the claims for relief do not have
the same legal basis. It is only when the causes of action,
that is, the groups of facts [on] which the plaintiff bases
his claims for relief, are separate and distinct that
separate counts are necessary or indeed ordinarily
desirable.'' (Footnote omitted.) Veits v.
Hartford, 134 Conn. 428, 438-39, 58 A.2d 389 (1948).
That remains the rule in this state, and it has been applied
with respect to a single count complaint alleging different
theories of negligence. See Wheeler v. Beachcroft,
LLC, 320 Conn. 146, 160, 129 A.3d 677 (2016)
(‘‘[e]ven though a single group of facts may give
rise to rights for several different kinds of relief, it is
still a single cause of action'' [internal quotation
marks omitted]); Beaudoin v. Town Oil Co., 207 Conn.
575, 588, 542 A.2d 1124 (1988) (restating rule as articulated
in Veits); Baldwin v. Jablecki, 52
Conn.App. 379, 382, 726 A.2d 1164 (1999) (statutory and
common-law negligence may be pleaded in single count).
Indeed, in Jar-mie, on which both parties rely, we
treated the single count complaint as alleging both medical
malpractice and common-law negligence when the pleadings were
substantially similar to those at issue here. See Jarmie
v. Troncale, supra, 306 Conn. 583-86; cf. Byrne v.
Avery Center for Obstetrics & Gynecology, P.C., 314
Conn. 433, 463, 102 A.3d 32 (2014) (reference to violation of
statutory duty did not transform count of complaint alleging
common-law negligence into statutory claim).[2]
Accordingly,
we may assume, for the sake of argument, that the defendant
is correct that the complaint reasonably can be read to
allege that he committed professional malpractice by failing
to follow accepted medical standards in his advising,
treatment, and ongoing testing and monitoring of Smith. The
question that we must resolve is simply whether the complaint
also alleges that the defendant committed ordinary common-law
negligence by permitting or instructing his office staff to
give Smith the wrong test results.[3]
B
The
following well established principles guide our analysis.
First, ‘‘[b]ecause a motion to strike challenges
the legal sufficiency of a pleading and, consequently,
requires no factual findings by the trial court, our review
of the court's ruling . . . is plenary. . . . We take the
facts to be those alleged in the complaint that has been
stricken and we construe the complaint in the manner most
favorable to sustaining its legal sufficiency. . . . Thus,
[i]f facts provable in the complaint would support a cause of
action, the motion to strike must be denied. . . . Moreover,
we note that [w]hat is necessarily implied [in an allegation]
need not be expressly alleged. . . . It is fundamental that
in determining the sufficiency of a complaint challenged by a
defendant's motion to strike, all well-pleaded facts and
those facts necessarily implied from the allegations are
taken as admitted.'' (Internal quotation marks
omitted.) Geysen v. Securitas Security Services USA,
Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
‘‘In
Connecticut, we long have eschewed the notion that pleadings
should be read in a hypertechnical manner. Rather, [t]he
modern trend, which is followed in Connecticut, is to
construe pleadings broadly and realistically, rather than
narrowly and technically. . . . [T]he complaint must be read
in its entirety in such a way as to give effect to the
pleading with reference to the general theory [on] which it
proceeded, and do substantial justice between the parties. .
. . Our reading of pleadings in a manner that advances
substantial justice means that a pleading must be construed
reasonably, to contain all that it fairly means, but carries
with it the related proposition that it must not be contorted
in such a way so as to strain the bounds of rational
comprehension.'' (Citation omitted; internal
quotation marks omitted.) ATC Partnership v.
Windham, 268 Conn. 463, 466 n.4, 845 A.2d 389 (2004).
Second,
our courts have long recognized that a health care provider
may commit ordinary negligence, as opposed to medical
malpractice, in the course of treating a patient or providing
medical services. See, e.g., Multari v. Yale-New Haven
Hospital, Inc., 145 Conn.App. 253, 260, 75 A.3d 733
(2013) (‘‘The plaintiff has not alleged medical
malpractice . . . but simply ordinary negligence against an
entity that happens to be a medical provider. The fact that
the defendant is a medical provider, does not, by itself,
preclude a finding that the plaintiff's action sounds in
ordinary negligence.''); Badrigian v. Elmcrest
Psychiatric Institute, Inc., 6 Conn.App. 383, 385-86,
505 A.2d 741 (1986) (claim that defendant failed to supervise
psychiatric patients in crossing highway sounded in ordinary
negligence); see also Jarmie v. Troncale, supra, 306
Conn. 593 and n.5 (leaving open possibility of third-party
negligence claims against health care providers).
To
determine whether a claim against a health care provider
sounds in ordinary negligence rather than (or in addition to)
medical malpractice, we must ‘‘review closely the
circumstances under which the alleged negligence occurred.
[P]rofessional negligence or malpractice . . . [is] defined
as the failure of one rendering professional services to
exercise that degree of skill and learning commonly applied
under all the circumstances in the community by the average
prudent reputable member of the profession with the result of
injury, loss, or damage to the recipient of those services. .
. . [M]alpractice presupposes some improper conduct in the
treatment or operative skill [or] . . . the failure to
exercise requisite medical skill . . . .'' (Citations
omitted; emphasis omitted; internal quotation marks omitted.)
Gold v. Greenwich Hospital Assn., 262 Conn. 248,
254, 811 A.2d 1266 (2002). ‘‘[T]o prevail in a
medical malpractice action, the plaintiff must prove (1) the
requisite standard of care for treatment, (2) a deviation
from that standard of care, and (3) a causal connection
between the deviation and the claimed injury. . . .
Generally, expert testimony is required to establish both the
standard of care to which the defendant is held and the
breach of that standard.'' (Internal quotation marks
omitted.) Id., 254-55. Accordingly, a claim sounds
in medical malpractice when ‘‘(1) the defendants
are sued in their capacities as medical professionals, (2)
the alleged negligence is of a specialized medical nature
that arises out of the medical professional-patient
relationship, and (3) the alleged negligence is substantially
related to medical diagnosis or treatment and involved the
exercise of medical judgment.'' (Internal quotation
marks omitted.) Id., 254. In connection with an
ordinary negligence claim, by contrast, the defendant's
conduct is judged against the standard of ‘‘what
a reasonable person would have done under the circumstances .
. . .'' Considine v. Waterbury, 279 Conn.
830, 859, 905 A.2d 70 (2006).
C
With
these principles in mind, we consider the plaintiff's
complaint. The relevant allegations of the complaint indicate
that the defendant reviewed Smith's test results,
notified a staff member of those results, and delegated to
the staff member the task of informing Smith of the results.
The complaint further alleges that the lab report contained a
guide that made clear that Smith had tested positive for
herpes. In addition, the complaint alleges that, although the
test results were positive, the staff member informed Smith
that his results were negative. Finally, the plaintiff
alleges that the defendant's negligence in failing to
accurately advise Smith of his positive test results caused
Smith to infect the plaintiff with herpes.
These
allegations are consistent with two distinct theories of
negligence. First, the defendant could have misread
Smith's lab report and incorrectly concluded that the
results were negative. Second, it is possible that the
defendant interpreted the report correctly but that either
the defendant misinformed his staff member that the results
were negative or the staff member misinformed Smith. In other
words, the alleged error could have occurred either in the
initial interpretation of the report or in the inaccurate
communication of the results, via the staff member, to Smith.
See 2 Restatement (Second), Torts § 311 (2), p. 106
(1965) (negligence may consist of failure to exercise
reasonable care in ascertaining accuracy of information or in
manner in which information is communicated).
In
either case, we agree with the plaintiff that her allegations
reasonably can be understood to sound in ordinary negligence.
It is true that the alleged error transpired in a medical
setting and that it arose as a result of a medical diagnosis
in the context of an ongoing physician-patient relationship.
There are at least two reasons, however, why we nevertheless
conclude that this aspect of the complaint need not be read
to sound in medical malpractice.
First,
the alleged error is not one involving professional medical
judgment or skill. If the defendant misread Smith's lab
result, then he failed to perform what was, in essence, a
simple, ministerial task. The index to the report states that
a result greater than 1.1 indicates a positive test, and the
report states that Smith's result was 4.43. No advanced
medical training was necessary to determine that Smith had
tested positive for herpes; elementary reading and arithmetic
skills should have been sufficient. Indeed, laypeople
routinely perform comparable tasks, such as reading and
interpreting meat thermometers, oil dipsticks, pool and spa
test strips, and insulin tests.
Of
course, the same conclusion holds to an even greater extent
if the genesis of the error was that the defendant simply
told his staff member the wrong test result or the staff
member relayed the wrong result to Smith. That sort of
careless miscommunication could occur in any setting and has
nothing to do with the exercise of professional medical
judgment or skill. Indeed, the very fact that the defendant
delegated the task to a staff member, who presumably was not
a medical doctor, points to the nontechnical nature of the
communication.
Second,
regardless of whether the alleged error arose from a
misreading or a miscommunication, proving that it constituted
negligence would not require expert medical testimony or the
establishment of a professional standard of care. A jury will
not need expert testimony to determine whether the
defendant's staff was negligent in leading Smith to
believe that he was free of STDs when the defendant knew, or
should have known, that Smith had tested positive for herpes,
a contagious STD, and intended to engage in sexual activity.
Such a determination is well within the ken of a lay
person.[4]
Accordingly,
we conclude that, as in Jarmie, the plaintiff in
this case pleaded a cause of action sounding in ordinary
negligence. We therefore turn our attention to the
plaintiff's claim that the defendant, in informing Smith
of his test results, owed a common-law duty of care not only
to Smith but also to the plaintiff, a non-patient.
II
Having
concluded that the plaintiff's claim sounds in ordinary
negligence, we now must determine whether, under the
circumstances presented in this case, a physician owes a duty
of care to an identifiable third party[5]who is not a patient.
We conclude that a physician does owe such a duty.
A
We
begin by setting forth the elements of a cause of action in
ordinary negligence. ‘‘The essential elements of
a cause of action in negligence are well established: duty;
breach of that duty; causation; and actual injury. . . .
Contained within the first element, duty, there are two
distinct considerations. . . . First, it is necessary to
determine the existence of a duty, and then, if one is found,
it is necessary to evaluate the scope of that duty. . . . The
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 [alleged tortfeasor] violated that duty in the
particular situation at hand.'' (Internal quotation
marks omitted.) Jarmie v. Troncale, supra, 306 Conn.
589.
‘‘Although
it has been said that no universal test for [duty] ever has
been formulated . . . our threshold inquiry has always been
whether the specific harm alleged by the plaintiff was
foreseeable to the defendant. The ultimate test of the
existence of the duty to use care is found in the
foreseeability that harm may result if it is not exercised. .
. . By that is not meant that one charged with negligence
must be found actually to have foreseen the probability of
harm or that the particular injury [that] resulted was
foreseeable, but the test is, would the ordinary [person] in
the [alleged tortfeasor's] position, knowing what he knew
or should have known, anticipate that harm of the general
nature of that suffered was likely to result . . . .
‘‘A
simple conclusion that the harm to the plaintiff was
foreseeable, however, 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.) Id., 590.
The
default assumption of the common law, then, is that one owes
a duty to exercise due care in one's affirmative conduct
with respect to all people, insofar as one's negligent
actions may foreseeably harm them. 3 F. Harper et al.,
Harper, James and Gray on Torts (3d Ed. 2007) § 18.6, p.
862. Under specific circumstances, however, the law, for
reasons of public policy, places additional restrictions on
the class of people to whom a duty of care is owed. See,
e.g., id., § 18.3, p. 781. In most instances,
for example, a physician's liability for the negligent
care and treatment of a patient does not extend to nonpatient
third parties who have been foreseeably injured by that
negligence. Id., § 18.5A, p. 852; see also
Jarmie v. Troncale, supra, 306 Conn. 592-93. But see
Squeo v. Norwalk Hospital Assn., 316 Conn. 558, 568,
113 A.3d 932 (2015) (recognizing limited cause of action for
bystander emotional distress resulting from medical
malpractice); Jarmie v. Troncale, supra, 593 n.5
(declining to endorse per se rule barring third-party claims
against health care providers). The present case requires us
to further clarify the scope of this exception to the general
duty rule.
B
With
these principles in mind, we now turn our attention to the
central question posed by the present appeal, namely, whether
a health care provider who negligently misinforms a patient
that he does not have an STD owes a duty of care to an
identifiable third party who foreseeably[6] contracts the STD as
a result of the provider's negligence. The defendant
contends that various public policy considerations counsel
against recognition of such a duty. Most notably, because a
patient such as Smith could have been or become intimate with
an unlimited number of romantic partners, there is no
meaningful way to identify or restrict the number of
individuals whom he might infect and, therefore, to limit the
class of persons who could have standing to bring an action
of this sort.
The
defendant further contends that a number of public policy
considerations and common-law traditions that are unique to
the health care environment or, specifically, to the
physician-patient relationship, counsel against recognizing a
physician's duty to a non-patient third party under the
circumstances alleged in the present case. He argues that (1)
the law generally does not impose on physicians a duty of
care to nonpatient third parties, (2) the considerations
underlying the adoption of Connecticut's medical
malpractice statutes, General Statutes §§ 52-190a
through 52-190c, disfavor the imposition of additional
liability on physicians, (3) imposing on physicians duties to
third parties risks interfering with and undermining the
physician-patient relationship, and (4) considerations of
confidentiality create both legal and logistical hurdles to
the recognition of such duties. Finally, the defendant
contends that the plaintiff could have taken various measures
both to protect herself from contracting herpes-presumably
sexual abstention or the use of prophylactics-and to
establish proper standing to bring an action of this
sort-such as accompanying Smith when he sought treatment from
the defendant.
The
trial court, in granting the defendant's motion to
strike, was swayed by a number of these arguments. The court
also discussed several additional concerns: whether
physicians might become obligated to contact and warn or to
educate patients' sexual partners; the fact that
physicians have no control over whether and how patients
share their STD test results with potential sexual partners;
and whether the recognition of a duty to nonpatients should
be predicated on the existence of a formal, mutual STD
testing agreement between the patient and his or her
prospective sexual partner. Although the defendant, certain
of the amici, [7] and the trial court raise many valid
concerns, for the reasons that follow, we are persuaded that
they do not counsel against the recognition of a duty under
the specific circumstances presented in this case.
1
Setting
aside for the moment the question of what third-party duties
apply within the distinct confines of the physician-patient
relationship, we observe at the outset that many of the
concerns that the defendant raises and that the trial court
found persuasive have been addressed and resolved in other
professional contexts. Although the plaintiff has not labeled
it as such, her claim is, in essence, one for negligent
misrepresentation. That tort specifically encompasses
situations such as this, in which a tortfeasor negligently
supplies misinformation knowing that the recipient of that
information intends to supply it in turn for the benefit and
guidance of a third party.
‘‘This
court has long recognized liability for negligent
misrepresentation. We have held that even an innocent
misrepresentation of fact may be actionable if the declarant
has the means of knowing, ought to know, or has the duty of
knowing the truth. . . . [When the information supplied is to
be used in the furtherance of a business transaction and the
alleged harm is solely pecuniary, the] governing principles
are set forth in . . . § 552 of [Volume 3 of] the
Restatement Second of Torts [1977]: One who, in the course of
his business, profession or employment . . . supplies false
information for the guidance of others in their business
transactions, is subject to liability for pecuniary loss
caused to them by their justifiable reliance [on] the
information, if he fails to exercise reasonable care or
competence in obtaining or communicating the
information.'' (Citations omitted; internal quotation
marks omitted.) D'Ulisse-Cupo v. Board of Directors
of Notre Dame High School, 202 Conn. 206, 217-18, 520
A.2d 217 (1987). Recognizing the potentially limitless scope
of the financial harms that may flow from the dissemination
of false information, the Restatement (Second) restricts
liability for negligent misrepresentation of this sort to the
loss suffered ‘‘(a) by the person or one of a
limited group of persons for whose benefit and guidance [the
defendant] intends to supply the information or knows that
the recipient intends to supply it, '' and
‘‘(b) through reliance upon it in a transaction
that he intends the information to influence or knows that
the recipient so intends or in a substantially similar
transaction.'' 3 Restatement (Second), Torts §
552 (2) (a) and (b), p. 127 (1977); see also id.,
comment (a), pp. 127-28. In other words, the Restatement
(Second) addresses the problem of potentially limitless
third-party liability, first, by conferring standing on only
those third parties to whom the defendant knew that the
recipient intended to supply the information at issue and,
second, by restricting liability to losses arising from
transactions for the purpose of which the information was
supplied.
Defined
and cabined in this manner, liability for negligent
misinformation has been upheld in various contexts in which a
professional is hired to supply information to a client,
knowing that the client is obtaining the information at least
in part for the benefit and guidance of some third party or
parties. Although we have not definitively resolved whether
an accountant or an auditor may be liable for negligent
misrepresentation to a nonclient third party; see Stuart
v. Freiberg, 316 Conn. 809, 816-17, 831-32 n.17, 116
A.3d 1195 (2015) (deeming it unnecessary to determine whether
liability could be imposed and leaving question open); a
number of other courts have held that such professionals can
be held liable under the approach set forth in § 552 of
the Restatement (Second) of Torts. See, e.g., Ellis v.
Grant Thornton LLP, 530 F.3d 280, 288-89 (4th Cir.)
(applying West Virginia law), cert. denied, 555 U.S. 1049,
129 S.Ct. 652, 172 L.Ed.2d 614 (2008); North American
Specialty Ins. Co. v. Lapalme, 258 F.3d 35,
38-40 (1st Cir. 2001) (applying Massachusetts law); see also
Tricontinental Industries, Ltd. v.
PricewaterhouseCoopers, LLP, 475 F.3d 824, 836 (7th Cir.
2007) (applying similar Illinois rule).
A
growing number of courts also have dispensed with the
traditional privity requirement and have imposed liability on
attorneys with respect to transactions in which the
attorney's opinion is solicited for the benefit of an
identifiable third party. See generally B. Walker, Note,
‘‘Attorney's Liability to Third Parties for
Malpractice: The Growing Acceptance of Liability in the
Absence of Privity, '' 21 Washburn L.J. 48 (1981)
(noting modern trend toward imposing liability and discussing
cases). Although courts following the modern approach to
professional negligent misinformation claims have not been
oblivious to the concerns raised by the defendant and certain
of the amici-the potential for limitless third-party
liability, interference with the professional-client
relationship, and the undue burdening of the professional
practice-they have concluded that limiting liability to
circumstances in which professional services are sought for
the specific benefit of identifiable third parties
adequately addresses any concerns centering around both
foreseeability and professionalism. See id., 65-66;
see also North American Specialty Ins. Co. v.
Lapalme, supra, 258 F.3d 40; Pelham v.
Griesheimer, 92 Ill.2d 13, 20-21, 440 N.E.2d 96
(1982).[8]
Moreover,
as we discuss more fully in part II B 4 of this opinion, the
Restatement (Second) of Torts recognized that there is even
less need to cabin potential third-party liability for
negligent misrepresentation in cases such as this, in which
the misinformation was not supplied for the recipient's
financial benefit and the third-party plaintiff suffered
physical as well as pecuniary injuries. Under those
circumstances, the Restatement (Second) advises that
‘‘[o]ne who negligently gives false information
to another is subject to liability for physical harm caused
by action taken by the other in reasonable reliance upon such
information, where such harm results . . . (b) to such third
persons as the actor should expect to be put in peril by the
action taken.'' 2 Restatement (Second), supra, §
311 (1) (b), p. 106. Similar principles underlie § 324A,
which provides that ‘‘[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 ...