Ruiz v. Victory Properties, LLC ( 2015 )

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ADRIANA RUIZ ET AL. v. VICTORY PROPERTIES, LLC
(SC 18997)
Rogers, C. J., and Palmer, Zarella, McDonald and Espinosa, Js.
Argued December 4, 2013—officially released January 20, 2015
Louis B. Blumenfeld, with whom was Lorinda S.
Coon, for the appellant (defendant Victory Proper-
ties, LLC).
Michael T. Petela, with whom, on the brief, was
Angelo Cicchiello, for the appellees (plaintiffs).
Opinion
PALMER, J. The plaintiff Olga Rivera (Olga) com-
menced this negligence action, both in her individual
capacity and as next friend and parent of the named
plaintiff, Adriana Ruiz (Adriana),1 against their landlord,
the defendant, Victory Properties, LLC,2 alleging that
the defendant was liable for injuries that then seven
year old Adriana sustained when her ten year old neigh-
bor, with whom Adriana had been playing in their
shared backyard, removed a piece of concrete from
that backyard, carried it up to his family’s third floor
apartment and dropped it onto Adriana’s head from a
window or the balcony of that apartment. The trial court
granted the defendant’s motion for summary judgment,
concluding that the defendant did not owe Adriana a
duty of care because no reasonable juror could find
that her injuries were a foreseeable consequence of the
defendant’s alleged negligence and because imposing
liability on the defendant would be contrary to overrid-
ing public policy considerations. The plaintiffs appealed
to the Appellate Court from the trial court’s judgment
in favor of the defendant. In a divided opinion, the
Appellate Court reversed the trial court’s judgment and
remanded the case with direction to deny the defen-
dant’s summary judgment motion. Ruiz v. Victory Prop-
erties, LLC, 135 Conn. App. 119, 133, 43 A.3d 186 (2012).
We then granted the defendant’s petition for certifica-
tion to appeal, limited to the issue of whether the Appel-
late Court properly reversed the trial court’s decision
to grant the defendant’s motion for summary judgment.
Ruiz v. Victory Properties, LLC, 305 Conn. 922, 47 A.3d
882 (2012). Because we agree with the Appellate Court
that the trial court improperly granted the defendant’s
motion for summary judgment, we affirm the Appellate
Court’s judgment.
The record reveals the following facts, most of which
are undisputed.3 At all times relevant to this appeal, the
defendant owned and managed a six-family apartment
building located at 138 North Street in the city of New
Britain. Each of the apartments has an open deck over-
looking the backyard, which includes a fenced in area
that is accessible by a gate. Children who lived in the
apartment, along with other visiting children, regularly
used that area as a playground, even though it was in
very poor condition. In particular, it contained dis-
carded home furnishings and appliances, and an aban-
doned motor vehicle in a state of complete disrepair.
In addition, as a result of the deteriorating concrete
sidewalks and retaining walls, chunks of concrete were
lying about, along with piles of construction material,
trash and rocks. Parents of the children playing in this
area were concerned because the children would play
with the debris, including the broken concrete. The
defendant’s owner, who also served as the apartment
manager, was aware of the condition of this area
because a tenant had complained to him about it, and
he personally observed the area when he visited the
property each month to collect rent money. Neverthe-
less, the defendant made no effort to remove or cordon
off the debris so that children playing in the area would
not have access to it.
On May 14, 2008, Saribel Cruz resided in a third floor
apartment in the building with her ten year old son,
Luis Cruz (Luis). Olga and Adriana, who is Saribel Cruz’
niece, resided in another apartment in the building. On
that day, Luis and Adriana, along with as many as a
dozen other children, all of whom were being watched
by several adults, were playing in the backyard. Luis
decided that he wanted to see if he could break a piece
of concrete. To that end, at about 4 p.m., Luis picked
up a piece of concrete from the backyard that weighed
approximately eighteen pounds, carried it up to his
family’s third floor apartment, and dropped it from the
window or balcony of that apartment to the ground
below. Luis saw his cousin Adriana below and yelled,
urging her to get out of the way, but the rock struck
her on the head, causing very serious injuries, including
a crushed skull, traumatic brain injury and paralysis on
her right side. As a result of these injuries, Adriana
had two surgeries and had been hospitalized for nearly
two months.
The plaintiffs subsequently commenced this action
against the defendant, alleging that the defendant was
negligent in failing to remove the loose concrete and
other debris from the backyard of the apartment build-
ing, and that this negligence was a cause of Adriana’s
injuries because it was a substantial factor in producing
those injuries.4 The defendant filed a motion for sum-
mary judgment, claiming that, under the circumstances,
it did not owe Adriana a duty of care and cannot as a
matter of law be held responsible for her injuries. The
trial court granted the defendant’s motion, concluding
that the defendant did not owe Adriana a duty of care
because a reasonable landlord in the defendant’s posi-
tion, knowing that there were pieces of broken concrete
and other debris in the backyard of the apartment build-
ing, would not have foreseen that a child would injure
another child by ‘‘lugging a [piece of concrete] up to
the balcony of the building and pitching [it] off, onto
the head of [the other] child . . . .’’ The trial court
further concluded that permitting a jury to find liability
under the facts of this case ‘‘would likely discourage
landlords from renting apartments to families with
young children. It would surely drive up the economic
costs associated with maintaining and insuring rental
properties, without a concomitant benefit of safe-
guarding against conditions and hazards that are much
more prevalent than the one here. . . . [Although]
imposing liability on the defendant would surely be a
benefit to [Adriana] and her family, the overall eco-
nomic and societal costs militate against such an impo-
sition in like situations.’’
The plaintiffs appealed to the Appellate Court from
the judgment of the trial court. The Appellate Court
reversed the trial court’s judgment, concluding that the
trial court, in evaluating whether Adriana’s injuries
were foreseeable, failed to consider whether the harm
that she suffered was within the general scope of the
risk created by the defendant’s failure to remove poten-
tially dangerous debris from the backyard and, instead,
improperly focused on the specific manner in which
the injuries occurred. See Ruiz v. Victory Properties,
LLC, supra, 135 Conn. App. 126–27. In other words, the
Appellate Court determined that the trial court had
framed the nature of the risk in too narrow of terms.
See id. In its view, the risk of harm created by the
defendant’s conduct was not, as the trial court had
concluded, a child carrying a piece of concrete to a
third floor apartment and dropping it to the backyard
below but, rather, that of a child ‘‘getting hurt by a large
[piece of concrete] thrown by another child,’’ conduct
that, according to the Appellate Court, a fact finder
reasonably could find to be foreseeable. Id., 127. The
Appellate Court further concluded that imposing a duty
of care on the defendant was in accord with this state’s
long-standing public policy requiring a landlord to main-
tain the common areas of a rental property in a reason-
ably safe condition, particularly when, as in the present
case, the landlord is aware that children regularly play
in those areas. See id., 129–30.
Judge Alvord dissented from the majority opinion of
the Appellate Court. She agreed with the trial court that
the foreseeability inquiry should be characterized more
narrowly, that is, ‘‘as whether the defendant would rea-
sonably foresee that a ten year old child would pick up
an eighteen pound cinder block, carry it up several
flights of stairs to the third floor of the apartment build-
ing and drop it on the head of [a] seven year old . . . .’’
(Emphasis omitted.) Id., 137–38 (Alvord, J., dissenting).
Believing that such a series of events was not reason-
ably foreseeable, and that imposing a duty of care on
the defendant would lead to increased litigation and
drive up the costs of property ownership, Judge Alvord
concluded that the defendant owed Adriana no duty of
care. Id., 138 and n.7 (Alvord, J., dissenting).
On appeal to this court following our granting of
certification, the defendant contends that the Appellate
Court incorrectly concluded that the defendant owed
Adriana a duty of care and improperly rejected its claim
that, even if the defendant did owe her such a duty,
the defendant’s conduct was not a proximate cause of
her injuries. We disagree with both contentions and,
accordingly, affirm the judgment of the Appellate Court.
Our analysis of the defendant’s claim is governed by
the following principles. A cause of action in negligence
is comprised of four elements: duty; breach of that
duty; causation; and actual injury. E.g., Mirjavadi v.
Vakilzadeh, 310 Conn. 176, 191, 74 A.3d 1278 (2013).
Whether a duty exists is a question of law for the court,
and only if the court finds that such a duty exists does
the trier of fact consider whether that duty was
breached. See, e.g., id.
‘‘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 deter-
mined by the circumstances surrounding the conduct
of the individual. . . . 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 foresee-
able . . . . [T]he test for the existence of a legal duty
entails (1) a determination of whether an ordinary per-
son in the defendant’s position, knowing what the
defendant knew or should have known, would antici-
pate that harm of the general nature of that suffered
was likely to result, and (2) a determination, on the basis
of a public policy analysis, of whether the defendant’s
responsibility for its negligent conduct should extend
to the particular consequences or particular plaintiff in
the case.’’ (Internal quotation marks omitted.) Id.,
191–92.
Foreseeability is determined in the context of causa-
tion, which has two components. With respect to the
first component, causation in fact, we ask whether the
injury would have occurred but for the actor’s conduct.
E.g., Winn v. Posades, 281 Conn. 50, 56, 913 A.2d 407
(2007). The second component of causation is proxi-
mate cause. Id. ‘‘Because actual causation, in theory,
is virtually limitless, the legal construct of proximate
cause serves to establish how far down the causal con-
tinuum tortfeasors will be held liable for the conse-
quences of their actions.’’ First Federal Savings & Loan
Assn. of Rochester v. Charter Appraisal Co., 247 Conn.
597, 604, 724 A.2d 497 (1999). ‘‘The test for proximate
cause is whether the defendant’s conduct was a sub-
stantial factor in producing the plaintiff’s injury. . . .
This substantial factor test reflects the inquiry funda-
mental to all proximate cause questions, namely,
whether the harm [that] occurred was of the same gen-
eral nature as the foreseeable risk created by the defen-
dant’s negligence.’’ (Citation omitted; internal quotation
marks omitted.) Label Systems Corp. v. Aghamoham-
madi, 270 Conn. 291, 321, 852 A.2d 703 (2004).
Additionally, it is well established that a landlord
owes a duty to maintain the common areas of an apart-
ment building in a reasonably safe condition for the
benefit of the tenants who reside in the building. See,
e.g., Giacalone v. Housing Authority, 306 Conn. 399,
407–408, 51 A.3d 352 (2012); see also LaFlamme v.
Dallesio, 261 Conn. 247, 256, 802 A.2d 63 (2002) (‘‘[t]he
general rule regarding premises liability in the landlord-
tenant context is that landlords owe a duty of reason-
able care as to those parts of the property over which
they have retained control’’ [internal quotation marks
omitted]). ‘‘What defines the landlord’s duty is the obli-
gation to take reasonable measures to ensure that the
space over which it exercises dominion is safe from
dangers, and a landlord may incur liability by failing
to do so.’’ (Emphasis omitted.) Giacalone v. Housing
Authority, supra, 408. ‘‘The ultimate test of the duty is
to be found in the reasonable foreseeability of harm
resulting from a failure to exercise reasonable care to
keep the premises reasonably safe.’’ Noebel v. Housing
Authority, 146 Conn. 197, 200, 148 A.2d 766 (1959). This
duty is also codified at General Statutes § 47a-7 (a),
which provides in relevant part: ‘‘A landlord shall . . .
(3) keep all common areas of the premises in a clean
and safe condition . . . .’’
Finally, whether the injury is reasonably foreseeable
ordinarily gives rise to a question of fact for the finder
of fact, and this issue may be decided by the court only
if no reasonable fact finder could conclude that the
injury was within the foreseeable scope of the risk such
that the defendant should have recognized the risk and
taken precautions to prevent it. See, e.g., Vendrella v.
Astriab Family Ltd. Partnership, 311 Conn. 301,
331–32 and n.25, 87 A.3d 546 (2014). In other words,
foreseeability ‘‘becomes a conclusion of law only when
the mind of a fair and reasonable [person] could reach
only one conclusion; if there is room for reasonable
disagreement the question is one to be determined by
the trier as a matter of fact.’’ (Internal quotation marks
omitted.) Gutierrez v. Thorne, 13 Conn. App. 493, 501,
537 A.2d 527 (1988). Guided by these principles, we
now turn to the merits of the defendant’s claims.
The defendant first contends that a landlord’s duty
to exercise reasonable care in maintaining the common
areas of leased premises is inapplicable to the present
case because the harm that Adriana suffered was not
foreseeable. In support of this contention, the defendant
argues that ‘‘Connecticut law does not require one to
anticipate that a child will misuse an inherently harm-
less object in a dangerous way,’’ and that the ‘‘buckets,
trash, rocks and broken concrete pieces’’ at issue in
this case are ‘‘no more dangerous than many common
objects occurring in nature or appearing routinely in
homes [or] yards where children live and play.’’ (Inter-
nal quotation marks omitted.) The defendant further
contends that, even if such objects could be considered
dangerous, Adriana’s injuries are not of the kind that
one reasonably would expect to result from the misuse
of those objects, and, in any event, public policy mili-
tates against imposing a duty under the facts and cir-
cumstances presented.
We disagree with the defendant’s first argument
because we reject its underlying premise, namely, that
broken concrete pieces, discarded buckets, rocks and
other similar debris are inherently harmless when left
in the backyard of an apartment building where children
are known to play. Indeed, even the trial court, which
ultimately agreed with the defendant that Adriana’s
injuries were not foreseeable, recognized that, ‘‘[i]n a
backyard where children routinely play outside, a land-
lord may have a duty to attempt to prevent foreseeable
hazards,’’ which would include a duty ‘‘to clean up and
remove loose or sharp concrete [on] which a child might
twist an ankle or fall and cut herself.’’ In her dissenting
opinion in the Appellate Court, Judge Alvord also
acknowledged that ‘‘[i]t certainly was foreseeable that
a child might trip and fall over the debris or even throw
a piece of concrete at another child.’’ (Emphasis added.)
Ruiz v. Victory Properties, LLC, supra, 135 Conn. App.
138 (Alvord, J., dissenting). For our part, we are hard
pressed to conceive of any set of circumstances in
which it would be reasonable for a landlord, on the
basis of his or her belief that pieces of broken concrete
pose no inherent danger to children, to allow such
debris to accumulate in an area frequented by children
at play. Even if we agreed, however, that pieces of
broken concrete are inherently harmless, we are aware
of no authority that stands for the proposition that a
person cannot be held liable for injuries resulting from
such objects.5 For example, magazines and books are
the most innocuous of items, but few would argue that
they cannot become a fire hazard if allowed to accumu-
late, over time, in a hallway or attic. Although light
bulbs and paper weights are also inherently innocuous,
it hardly would be prudent to discard a wheelbarrow
full of them in the middle of a playground. On the
contrary, as the trial court observed, it is common
knowledge that children do not always appreciate the
dangers inherent in their surroundings and often will
play with objects found lying around. See, e.g., Wax v.
Honolulu, 34 Haw. 256, 259 (1937) (‘‘Not the least of
childish instincts is the proclivity [of children] to inter-
meddle with objects or devices [that] excite their curios-
ity or suggest means of amusement. And if it may be
reasonably anticipated that children might resort for
amusement to, or intermeddle with, an object or device,
left unguarded in a public park, to the injury of them-
selves or others and ordinary prudence would counsel
precautionary measures to prevent such injury, nonac-
tion in that respect would constitute negligence
. . . .’’); Geary v. H. P. Hood & Sons, Inc., 336 Mass. 369,
370, 145 N.E.2d 716 (1957) (‘‘children at play sometimes
throw available objects for various reasons’’).
Consequently, ‘‘[o]ur cases have attempted to safe-
guard children of tender years from their propensity to
disregard dangerous conditions. It definitely has been
established by frequent repetition of the statement that
the degree of care required of children is such care as
may reasonably be expected of children of similar age,
judgment and experience. . . . As to the care required
of others in relation to children, the same propensity of
children has been taken into consideration in evaluating
the negligence of these others.’’6 (Citations omitted;
internal quotation marks omitted.) Neal v. Shiels, Inc.,
166 Conn. 3, 11, 347 A.2d 102 (1974). This is not to say
that an object’s intrinsic qualities and character play
no role in a duty analysis. Indeed, such considerations
may bear significantly on that analysis, but only insofar
as they inform the question of whether the harm that
occurred was sufficiently foreseeable that the defen-
dant reasonably should have taken steps to prevent it.7
As we previously indicated, both the trial court and
Judge Alvord, in her dissenting opinion in the Appellate
Court, concluded that the harm that befell Adriana in
this case was not foreseeable. See Ruiz v. Victory Prop-
erties, LLC, supra, 135 Conn. App. 134, 138 (Alvord, J.,
dissenting). Judge Alvord, in particular, reasoned that,
although it was foreseeable that a child might throw a
piece of concrete at another child, the catastrophic
injuries that Adriana sustained were not within the
scope of that risk and, therefore, could not reasonably
have been anticipated. See id., 138 (Alvord, J., dis-
senting). On appeal, the defendant urges us to adopt
Judge Alvord’s reasoning and reject the reasoning of the
Appellate Court majority, which, as we have explained,
concluded that the trial court and Judge Alvord improp-
erly had framed the foreseeability question too narrowly
to encompass only the specific facts of this case,
namely, whether it was foreseeable that a ten year old
child would carry a heavy piece of concrete from the
backyard to a third floor balcony and drop it on Adri-
ana’s head. We disagree that the Appellate Court majori-
ty’s analysis of foreseeability was improper. To the
contrary, as this court previously has explained, ‘‘[as]
long as harm of the general nature as that which
occurred is foreseeable there is a basis for liability even
though the manner in which the accident happens is
unusual, bizarre or unforeseeable.’’ Pisel v. Stamford
Hospital, 180 Conn. 314, 333, 430 A.2d 1 (1980); see
also Lodge v. Arett Sales Corp., 246 Conn. 563, 587,
717 A.2d 215 (1998) (Berdon, J., dissenting) (focus of
foreseeability inquiry should be ‘‘on the general nature
of the harm and not the specific manner in which the
injury occurred or the conduct of a third party’’); Figlar
v. Gordon, 133 Conn. 577, 581–82, 53 A.2d 645 (1947)
(foreseeability ‘‘does not mean that one charged with
negligence must be found actually to have foreseen the
probability of harm or that the particular injury which
resulted was foreseeable, but the test is, would the
ordinary man in the defendant’s position, knowing what
he knew or should have known, anticipate that harm
of the general nature of that suffered was likely to
result’’ [internal quotation marks omitted]). Thus, as
the Appellate Court further explained, ‘‘[a]lthough a
jury might find it not foreseeable that a ten year old
child would carry a large [piece of concrete] up to a
third floor balcony, throw it off, and hit someone below,
defining the harm of the general nature in that way as
a matter of law would be too specific; it would transform
the general nature of the harm into the specific way in
which the harm occurred.’’ (Emphasis omitted.) Ruiz
v. Victory Properties, LLC, supra, 127.
Comment (i) to § 29 of the Restatement (Third) of
Torts underscores this point: ‘‘Courts often respond
to efforts by advocates to employ excessive detail in
characterizing the type of harm in order to make it
appear more unforeseeable with the dictum that the
manner of harm is irrelevant. Factfinders, no doubt,
respond to these efforts with their own judgment and
common sense to decide the appropriate specificity
with which to assess the scope of liability.’’ 1 Restate-
ment (Third), Torts, Liability for Physical and Emo-
tional Harm § 29, comment (i), p. 504 (2010). Although,
in some cases, the injury is so remotely or tenuously
connected to the conduct of the defendant that it must
be deemed unforeseeable as a matter of law, this is not
such a case. Because reasonable people can disagree
as to whether the defendant should have anticipated
that a child playing in the common backyard reasonably
might by injured by another child’s mishandling of the
broken concrete or other debris that had accumulated
there, the plaintiff is entitled to have a jury decide
that question.
In the present case, the defendant does not dispute
that the risk of harm created by its failure to remove
the buckets, trash, broken concrete pieces and other
debris from the backyard was that children playing in
the area might trip on them or throw them at other
children. The types of injuries one would expect to
result from this type of behavior run the gamut from
cuts and bruises to broken bones, concussions and even
fractured skulls. Adriana’s injuries, although severe, fall
squarely along this continuum of harm. That they
occurred in an unusual manner, namely, by a child
dropping a piece of concrete into the backyard play-
ground from a third floor balcony instead of throwing
it while in the backyard, does not alter this fundamental
fact. We therefore agree with the Appellate Court that
Adriana’s injuries were sufficiently foreseeable that it
was inappropriate for the trial court to foreclose the
foreseeability question as a matter of law.
Of course, ‘‘[a] simple conclusion that the harm to
the plaintiff was foreseeable . . . cannot by itself man-
date 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 sacro-
sanct 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 omit-
ted.) Pelletier v. Sordoni/Skanska Construction Co.,
286 Conn. 563, 594, 945 A.2d 388 (2008). ‘‘[I]n consider-
ing whether public policy suggests the imposition of a
duty, we . . . consider the following four factors: (1)
the normal expectations of the participants in the activ-
ity under review; (2) the public policy of encouraging
participation in the activity, while weighing the safety
of the participants; (3) the avoidance of increased litiga-
tion; and (4) the decisions of other jurisdictions.’’ (Inter-
nal quotation marks omitted.) Monk v. Temple George
Associates, LLC, 273 Conn. 108, 118, 869 A.2d 179
(2005). ‘‘[This] totality of the circumstances rule . . .
is most consistent with the public policy goals of our
legal system, as well as the general tenor of our [tort]
jurisprudence.’’ Id., 121.
Relying primarily on the trial court’s analysis of the
policy issue, the defendant contends that, even if a jury
reasonably could conclude that Adriana’s injuries were
foreseeable, public policy militates against imposing a
duty under the circumstances of this case. We disagree
with this assertion for several reasons. First, the defen-
dant’s analysis fails to give due consideration to the
preexisting common-law and statutory duty requiring
landlords in this state to maintain the common areas
of leased premises in a reasonably safe condition. In
light of that duty, the only real issue in this case is
whether a compelling reason exists to conclude that
this duty is not controlling of the policy question raised
by the defendant. Clearly, the first two considerations
that bear on that question—the expectations of the
participants and the public policy of encouraging partic-
ipation in the activity under review—do not support
the defendant’s position. The Appellate Court explained
that the activity at issue is a tenant’s use of the common
area of an apartment building—in this case a back-
yard—as a place for children to play. See Ruiz v. Victory
Properties, LLC, supra, 135 Conn. App. 129. The law
imposes a duty on landlords to maintain the common
areas of rental property in a reasonably safe condition
precisely because it is expected that tenants will use
those areas for a variety of purposes, including as a
place for their children to recreate. Cf., e.g., Indianapo-
lis Housing Authority v. Pippin, 726 N.E.2d 341, 346
(Ind. App. 2000) (public policy supports imposing duty
on owner of multifamily housing complex to consider
safety of common areas where children are known to
play). With respect to the public policy of encouraging
participation in the activity under review, we agree with
the Appellate Court that it is hardly controversial that
public policy supports ‘‘the maintenance of common
areas in properties such as the apartment building in
this case, so that children can socialize and play in safe
environments. A finding against the imposition of a duty
would discourage parents from allowing their children
to play and utilize [these] areas . . . . It would also
require tenants in such dwellings to exercise a much
higher degree of vigilance in monitoring their children’s
activities in order to prevent exposure to potentially
dangerous materials [in areas over which they have no
control]. There is certainly a strong public policy in
favor of facilitating and encouraging children to play
and socialize without forcing an overly heightened
degree of vigilance [on] parents.’’8 Ruiz v. Victory Prop-
erties, LLC, supra, 130.
With respect to the third policy consideration, avoid-
ance of increased litigation, the defendant argues that,
if this court permits a jury to decide whether the defen-
dant breached a duty to the plaintiff by failing to remove
the broken pieces of concrete from the backyard, then
almost any item found in the common area of an apart-
ment building could be deemed dangerous, including
sticks and stones, flower pots, umbrellas or even lawn
chairs. The defendant asserts that this will result in
landlords being held strictly liable for injuries caused
by a wide array of harmless objects, expose all property
owners, not just landlords, to increased litigation and
property costs, and ‘‘encourage an unhealthy ‘sanitizing’
of areas where children play’’ in order to avoid such
litigation and costs. First, we reject the defendant’s
contention that imposing a duty under the circum-
stances of this case is tantamount to imposing strict
liability. To the contrary, concluding that a duty exists
simply affords the plaintiffs in the present case the
opportunity to prove to a jury that Adriana’s injuries
were foreseeable, that the defendant failed to take rea-
sonable steps to avoid them, and that this failure was
a substantial factor in bringing about those injuries. It
is by no means clear, however, that the plaintiffs will
prevail on any of these components of their claim. As
in every negligence action, the jurors will be free to
reject the claim if they find, in light of their common
knowledge and experience, that Adriana’s injuries were
not reasonably foreseeable, or that the defendant exer-
cised reasonable care under the circumstances, or that
the defendant’s conduct was not a substantial factor in
causing Adriana’s injuries.
Nor do we agree that our resolution of this appeal
will lead to a significant increase in litigation or drive
up the costs of property ownership, which might occur
if we were recognizing a new cause of action or other-
wise breaking new ground in the area of premises liabil-
ity. In the present case, we merely conclude that there
is a triable issue of fact as to whether the defendant
breached its duty to maintain the common areas of
the plaintiffs’ apartment building in a reasonably safe
condition, such that the question of liability should be
decided by a jury and not by the court as a matter of
law. Indeed, we agree with the Appellate Court that,
rather than unnecessarily and unwisely increasing liti-
gation, imposing a duty in this case will likely prompt
landlords to act more responsibly toward their tenants
in the interest of preventing foreseeable harm caused
by unsafe conditions in areas where tenants are known
to recreate or otherwise congregate. Moreover, the cost
of maintaining the common areas of an apartment build-
ing in a reasonably safe condition is likely one of the
least costly aspects of rental property ownership, and
one that the defendant in the present case assumed
by virtue of such ownership. We cannot imagine that
picking up pieces of loose concrete and other debris
that had accumulated in the common backyard, and
periodically inspecting the yard for new hazards, would
require more than a few hours of manual labor and
perhaps the occasional use of a pickup truck.
Finally, we are not persuaded that our conclusion is
likely to cause landlords to ‘‘sanitize’’ the common areas
where children play, thereby depriving those children
of the opportunity to recreate in a fun and enjoyable
environment. Our holding requires only that landlords
take reasonable steps to protect against foreseeable
injuries to children playing in those common areas, and
when a landlord is sued for allegedly breaching that
duty, summary judgment remains available unless a jury
reasonably could determine that the landlord failed to
act reasonably under the circumstances.
With respect to the fourth consideration, namely, the
decisions of other jurisdictions, the defendant relies
primarily on a line of Illinois cases,9 which, according
to the defendant, explains why property owners are
not liable for injuries caused by inherently harmless
objects. Only one such case, however, involves a claim
that a landlord breached its duty to maintain a common
area in a reasonably safe condition. See Cole v. Housing
Authority, 68 Ill. App. 3d 66, 67, 385 N.E.2d 382 (1979).
All of the cases, moreover, are distinguishable on their
facts.10 Furthermore, as the plaintiffs note, the issue of
whether a landowner may be held liable for injuries
resulting from inherently harmless objects is far from
settled, even in Illinois, for there are a number of appel-
late cases from that state indicating that the duty
inquiry, particularly when the injured plaintiff is a child,
must ultimately turn on the foreseeability of the harm
rather than the inherently harmless nature of the instru-
mentality that caused the harm. See, e.g., Qureshi v.
Ahmed, 394 Ill. App. 3d 883, 887, 916 N.E.2d 1153 (2009)
(‘‘[i]t is the reasonable foreseeability of harm that deter-
mines liability in negligence actions involving chil-
dren’’); Grant v. South Roxana Dad’s Club, 381 Ill. App.
3d 665, 672, 886 N.E.2d 543 (2008) (concluding that
issue of duty was not appropriately decided as matter
of law because jury reasonably could conclude that
harm to trespassing child, who was injured on four foot
high pile of dirt, was reasonably foreseeable); Nelson
ex rel. Tatum v. Commonwealth Edison Co., 124 Ill.
App. 3d 655, 663, 465 N.E.2d 513 (1984) (‘‘While foresee-
ability is . . . a proper matter for a court to consider
in making its duty determination . . . foreseeability is
a determinative consideration only [when] a particular
occurrence is so extreme that, as a policy decision, it
would be unwise to require [the] defendant to guard
against it. In the majority of cases, [in which] varying
inferences are possible from the facts, a court should
permit the jury to decide the foreseeability issue, includ-
ing the foreseeability of the particular cause and effect
of [the] plaintiff’s injury, as a factual matter in its proxi-
mate cause determination.’’ [Citations omitted.]). In any
event, we agree with the Appellate Court that, as this
court previously has explained, ‘‘the decisions of other
jurisdictions . . . [are] not particularly helpful
because there are multiple ways in which our sister
states handle the question of duty with respect to prem-
ises liability.’’ Ruiz v. Victory Properties, LLC, supra,
135 Conn. App. 130; accord Monk v. Temple George
Associates, LLC, supra, 273 Conn. 120. Accordingly, the
decisions of other jurisdictions, like the other relevant
considerations, do not support the defendant’s con-
tention that it did not owe Adriana a duty of reason-
able care.11
We turn, therefore, to the defendant’s final claim that,
even if it owed Adriana such a duty, its conduct was
not a proximate cause of her injuries as a matter of
law. In support of this contention, the defendant argues
that ‘‘[i]t is clear that the conduct of the defendant in
permitting debris to accumulate in the backyard was
not a direct cause of [Adriana’s] injury. The direct and
proximate cause was the conduct of Luis . . . .’’ As the
Appellate Court explained, however, ‘‘[b]ecause actual
causation, in theory, is virtually limitless, the legal con-
struct of proximate cause serves to establish how far
down the causal continuum tortfeasors will be held
liable for the consequences of their actions. . . . The
fundamental inquiry of proximate cause is whether the
harm that occurred was within the scope of foreseeable
risk created by the defendant’s negligent conduct. . . .
In negligence cases . . . in which a tortfeasor’s con-
duct is not the direct cause of the harm, the question
of legal causation is practically indistinguishable from
an analysis of the extent of the tortfeasor’s duty to the
plaintiff. . . . Therefore, since [the court has] already
determined the question of whether a duty was owed
by the defendant, it would be repetitive . . . to engage
in an analysis concerning proximate cause.’’ (Citation
omitted; internal quotation marks omitted.) Ruiz v. Vic-
tory Properties, LLC, supra, 135 Conn. App. 133; see
also Lodge v. Arett Sales Corp., supra, 246 Conn. 574
(‘‘[i]t is impractical, if not impossible, to separate the
question of duty from an analysis of the cause of the
harm when the duty is asserted against one who is not
the direct cause of the harm’’). Furthermore, as we
previously have stated, ‘‘[t]he issue of proximate causa-
tion is ordinarily a question of fact for the trier. . . .
Conclusions of proximate cause are to be drawn by the
jury and not by the court. . . . It becomes a conclusion
of law only when the mind of a fair and reasonable
[person] could reach only one conclusion; if there is
room for a reasonable disagreement, the question is
one to be determined by the trier as a matter of fact.’’
(Internal quotation marks omitted.) Grenier v. Com-
missioner of Transportation, 306 Conn. 523, 558, 51
A.3d 367 (2012).
Although we acknowledge that Luis’ actions were a
direct and substantial cause of Adriana’s injuries, and
that a jury reasonably could conclude that he bore the
brunt of the responsibility for her injuries,12 it is well
established that ‘‘[t]he injury resulting from the breach
of duty need not be the direct or immediate result of
the wrongful act; if it is probable and a natural result,
that is according to the operations of natural laws, it
is enough. . . . The mere fact that the act of another
person concurs, co-operates or contributes, in any
degree whatever in producing the injury, is of no conse-
quence . . . . [I]n no case is the connection between
an original act of negligence and an injury actually bro-
ken if a [person] of ordinary sagacity and experience,
acquainted with all the circumstances, could have rea-
sonably anticipated that the [direct cause of the harm]
might, not improbably but in the natural and ordinary
course of things, follow his act of negligence.’’ Lom-
bardi v. Wallad, 98 Conn. 510, 517–18, 120 A. 291 (1923);
see id., 513–14, 517 (defendant who left trash can fire
burning in common area of apartment building could
be deemed liable for child’s injuries when child playing
with fire accidentally set another child on fire). Our
determination that a jury reasonably could find that the
defendant’s alleged negligence also was a substantial
factor in causing Adriana’s injuries finds support in
sister state case law rejecting claims, like that of the
defendant in the present case, that the actions of a third
party were not a proximate cause of a child’s injuries
merely because another child directly caused those
injuries. See, e.g., Smith v. Eagle Cornice & Skylight
Works, 341 Mass. 139, 141, 167 N.E.2d 637 (1960) (jury
reasonably could conclude that leaving axe and other
construction materials in courtyard of apartment com-
plex was proximate cause of injuries sustained when
child accidentally dropped axe on another child’s hand);
Speaks v. Housing Authority, 193 N.J. Super. 405, 408–
10, 474 A.2d 1081 (App. Div.) (jury reasonably could find
that landlord’s failure to repair eighth floor stairwell
window was proximate cause of child’s injuries after
child was struck by bicycle frame thrown by another
child from window), cert. denied, 97 N.J. 655, 483 A.2d
177 (1984); Mayer v. Housing Authority, 84 N.J. Super.
411, 424–25, 202 A.2d 439 (App. Div. 1964) (jury reason-
ably could have found that evidence of prior stone
throwing in area of housing project designated for recre-
ation of children would render future injury to children
foreseeable), aff’d, 44 N.J. 567, 210 A.2d 617 (1965).
We conclude, therefore, that the plaintiffs are entitled
to a jury determination of their claim that the defendant
bears at least some responsibility for Adriana’s injuries.
Consequently, we agree with the Appellate Court that
the trial court improperly granted the defendant’s
motion for summary judgment.
The judgment of the Appellate court is affirmed.
In this opinion ROGERS, C. J., and ESPINOSA, J., con-
curred.
1
We hereinafter refer to Olga and Adriana collectively as the plaintiffs.
2
After the plaintiffs commenced the present action, they successfully
joined two other defendants, namely, John R. Kovalcik and Interpros, Inc.
The trial court rendered judgment in favor of those other defendants, how-
ever, after granting their independent motion for summary judgment, and
the plaintiffs have not challenged that aspect of the trial court’s judgment
on appeal. Accordingly, we refer to Victory Properties, LLC, as the defendant
throughout this opinion.
3
To the extent that any facts are disputed, we view those facts, as well
as any other relevant facts, in the light most favorable to the plaintiffs. See,
e.g., DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49
A.3d 951 (2012) (for purposes of deciding motion for summary judgment,
court views facts in light most favorable to nonmoving party).
4
Specifically, the plaintiffs alleged in their amended complaint that the
defendant was negligent in that, inter alia, it (1) ‘‘caused, allowed, and/or
permitted the debris and loose concrete and cinderblocks to be and remain
in a dangerous and unsafe condition,’’ (2) ‘‘caused, allowed, and/or permitted
the debris and loose concrete and cinderblocks to become and remain loose
and defective, causing a hazardous condition,’’ (3) ‘‘failed to remedy [this]
condition when [such a remedy] was reasonable and necessary under the
circumstances,’’ (4) ‘‘failed to maintain [the] backyard and property in a
reasonabl[y] safe condition for [the] plaintiff[s] and other tenants to walk,
play and socialize,’’ and (5) ‘‘knew or should have known that the presence
of . . . loose debris and concrete caused an unsafe and hazardous condition
and that it was foreseeable that the harm caused to [Adriana] was a likely
result [of] the defendant’s failure to take corrective measures and [to] remedy
the hazardous condition . . . .’’
5
In support of its contention to the contrary, the defendant relies on
Goldberger v. David Roberts Corp., 139 Conn. 629, 96 A.2d 309 (1953), in
which the twelve year old plaintiff sought damages from the defendants,
which operated a summer camp for children, for injuries that the plaintiff
sustained when a fellow camper accidentally struck him while swinging a
paddle that broke into two pieces while the two boys were supposed to be
resting in a tent. Id., 629–30. We concluded that the failure of camp counsel-
ors to monitor the child who swung the paddle, after he was instructed to
get rid of the paddle, was not a breach of any duty that the defendants
owed the plaintiff. See id., 632–33. Contrary to the assertion of the defendant
in the present case, however, we did not state or imply in Goldberger that
it always is unforeseeable that a child will use an inherently harmless object
in a dangerous way. We simply concluded, rather, that, under the facts of
Goldberger, the defendants owed the plaintiff no duty to prevent the harm
that he suffered. See id.
6
This court also has ‘‘adopted the view of § 339 of the Restatement (Sec-
ond) of Torts that [a] possessor of land is subject to liability for physical
harm to children trespassing thereon caused by an artificial condition [on]
the land if (a) the place where the condition exists is one [on] which the
possessor knows or has reason to know that children are likely to trespass,
and (b) the condition is one of which the possessor knows or has reason
to know and which he realizes or should realize will involve an unreasonable
risk of death or serious bodily harm to such children, and (c) the children
because of their youth do not discover the condition or realize the risk
involved in intermeddling with it or in coming within the area made danger-
ous by it, and (d) the utility to the possessor of maintaining the condition
and the burden of eliminating the danger are slight as compared with the
risk to children involved, and (e) the possessor fails to exercise reasonable
care to eliminate the danger or otherwise to protect the children.’’ (Internal
quotation marks omitted.) Dzenutis v. Dzenutis, 200 Conn. 290, 304, 512
A.2d 130 (1986); accord Duggan v. Esposito, 178 Conn. 156, 158–59, 422
A.2d 287 (1979), quoting 2 Restatement (Second), Torts § 339, p. 197 (1965).
‘‘It is a question for the jury to decide if a defendant is maintaining a latently
dangerous instrumentality on his premises [that] is so exposed that he may
reasonably anticipate that a child is likely to be hurt by it. It is also for the
jury to decide if a defendant knows or has reason to know that children
are likely to trespass on that portion of his land where the instrumentality
is located. . . . Even if there is no evidence that any child had previously
trespassed on the site, it remains a jury question whether, based on all of
the evidence, the defendants knew or had reason to know that children
were likely to trespass on the place where the condition existed.’’ (Citation
omitted.) Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 201, 470
A.2d 705 (1984). Of course, a property owner’s responsibility to a tenant
exceeds the owner’s duty to a mere trespasser.
7
We agree with the plaintiffs, however, that the trial court, in its memoran-
dum of decision, tended to minimize the defendant’s culpability by repeatedly
referring to the concrete that struck Adriana as a ‘‘rock,’’ which, as the
plaintiffs argue, suggests a natural rather than artificial condition, and by
analogizing the risk of harm in this case to that of a child removing a flower
pot from the back porch and dropping it. The plaintiffs argue that this
analogy is inapt because ‘‘[t]he inappropriateness of stealing and destroying
a . . . potted plant would be obvious, even to a ten year old child,’’ whereas
the conditions at issue in this case, which included an abandoned motor
vehicle, scattered cinder blocks and construction debris, were discarded
items that clearly belonged to no one, a difference that also would not have
been lost on children playing in the backyard. The plaintiffs contend, and
we agree, that the appropriate analogy would be to a child removing the
battery from the abandoned vehicle and dropping it on a playmate.
8
We reject the defendant’s suggestion that a ‘‘reasonably safe’’ environ-
ment in an urban setting has a different meaning than in other settings,
such that the expectation of urban tenants is that landlords will keep the
common areas ‘‘devoid of . . . objects like needles, broken glass, and explo-
sives’’ but not harmless objects that can cause injury only if mishandled.
First, as we previously discussed, we do not agree with the defendant’s
characterization of the debris at issue in this case as inherently harmless
when left in an area where children routinely play. Even if we did, however,
the defendant has cited no authority for the proposition that urban landlords
are held to a lesser standard of care than their suburban or rural counterparts,
one requiring them to maintain the common areas under their control free
of only the most noxious and inherently dangerous of items, such as explo-
sives or used needles. Suffice it to say that we do not believe an object that
poses a danger to children in a suburban backyard becomes less dangerous
to them merely because it is discarded in an urban backyard.
9
See Winnett v. Winnett, 57 Ill. 2d 7, 8, 13, 310 N.E.2d 1 (1974) (trial
court properly dismissed complaint alleging, inter alia, that manufacturer
of conveyor belt located on farm was strictly liable for injuries suffered by
farm owner’s four year old granddaughter when she placed her hand in or
on conveyor belt because manufacturer reasonably could not have foreseen
that child would have access to belt); Cole v. Housing Authority, 68 Ill.
App. 3d 66, 67, 69, 71–72, 385 N.E.2d 382 (1979) (defendant housing authority
was not liable for injuries sustained by child who resided in housing project
owned and operated by defendant when child was playing in construction
area within housing project that children were prohibited from accessing
and was struck by metal stake, used in connection with ongoing construc-
tion, that another child had found at site and swung or threw, and defendant
had no duty to ensure that children did not gain access to such stakes
when company performing construction work placed barricades with yellow
flashers around construction site and picked up stakes at end of each work
day); Reeves v. Springfield, 5 Ill. App. 3d 880, 880–83, 284 N.E.2d 373 (1972)
(defendant city was not liable for five year old child’s injuries that he
sustained when another young child picked up discarded license plate from
public alley and threw it at five year old, striking him in eye, because city
had no duty to ‘‘constantly inspect and clean up its 108 miles of alleys, and
to remove all items with which a child could be injured’’); Kos v. Catholic
Bishop, 317 Ill. App. 248, 249, 252–53, 45 N.E.2d 1006 (1942) (parochial
school not liable for injuries sustained by student when she was struck by
brush used to clean floors that another student had thrown, as record
contained nothing to indicate that brush was dangerous or stored in inappro-
priate place).
10
The defendant also cites to Geary v. H. P. Hood & Sons, Inc., supra,
336 Mass. 369–71 (defendant milk company, whose employee delivered milk
to grade school and left several pounds of ice on top of milk containers
delivered to school, was not liable when nine year old student took piece
of ice and threw it to ground, causing ice fragment to break off and cause
injury to another student, because injury was not foreseeable), Foss v.
Kincade, 766 N.W.2d 317, 319, 322–23 (Minn. 2009) (defendant homeowners
were not liable for injuries sustained when freestanding bookshelf fell on
and injured three year old child who was visiting defendants’ home because
defendants did not know of child’s proclivity to climb on bookshelves, and,
therefore, child’s injuries were not reasonably foreseeable), and Chavez v.
Desert Eagle Distributing Co. of New Mexico, LLC, 141 N.M. 116, 119,
123–26, 151 P.3d 77 (App. 2006) (distributors who sold alcohol to casino
knowing that casino intended to serve alcohol continuously for twenty-four
hour period were not liable to passengers of vehicle struck by intoxicated
driver who had been served alcohol at casino during that twenty-four hour
period and while he was intoxicated because passengers’ injuries were not
foreseeable consequence of distributors’ sale of alcohol to casino), cert.
denied, 141 N.M. 164, 152 P.3d 151 (2007). These cases, two of which do
not involve premises liability, are also readily distinguishable and provide
even less support for the defendant’s policy arguments than the Illinois
cases on which the defendant primarily relies. See footnote 9 of this opinion.
Indeed, more than anything else, these cases illustrate that foreseeability
is a highly fact-sensitive issue that most often is not susceptible to resolution
through summary judgment.
11
Because the sister state cases on which the dissent relies are readily
distinguishable on their facts, they, too, provide no support for rejecting
the plaintiff’s claim on public policy grounds. Nor do they ‘‘[weigh] heavily
. . . against imposing a duty on the defendant,’’ as the dissent asserts. For
example, in Indian Acres of Thornburg, Inc. v. Denion, 215 Va. 847, 213
S.E.2d 797 (1975) (Indian Acres), the Supreme Court of Virginia concluded
that the owner and developer of certain property on which a silo was being
converted into an observation tower could not be held liable for injuries
sustained by the victim when she was struck by a piece of concrete rock
that a young boy, who had climbed to the top of the tower while it was
still under construction, dropped to the ground below. Id., 848–51. In
reversing the judgment that the trial court had rendered in accordance with
the jury verdict in favor of the victim, the Supreme Court of Virginia explained
that, even though the property owner and developer had permitted rocks
and other debris, including the rock that struck the victim, to accumulate
at the base of the structure, the owner and developer ‘‘was not required to
eliminate all excess construction materials from the site, while construction
was still in progress.’’ (Emphasis added.) Id., 850. Because the injury in
the present case was sustained on a backyard playground, and not on an
active construction site, as in Indian Acres, the two cases are materially dif-
ferent.
The other case on which the dissent primarily relies, namely, Englund v.
Vital, 838 N.W.2d 621 (S.D. 2013), is similarly inapposite. In Englund, the
injured victim, a young girl, was struck by a rock thrown by her neighbor,
a young boy, who resided with his parents in a rental property owned by
the defendant Robert Smith. Id., 624–26. The victim’s parents filed an action
against Smith, among others, on the victim’s behalf, alleging that the rock
that the neighbor threw at the victim constituted debris from landscaping
work that Smith was performing on the rental property, that Smith knew
that the neighbor had a propensity to throw rocks, and that Smith had
indicated that he would remove the rocks from the rental property but did
not do so. Id., 625–26. The victim’s parents alleged that Smith’s failure to
remove the rocks was a breach of the duty he owed the victim to protect
her from the neighbor’s propensity to throw rocks. Id., 628–29. The South
Dakota Supreme Court affirmed the trial court’s judgment rendered in favor
of Smith, concluding that Smith could not be held liable for the victim’s
injuries, first, because he had ceded control of the rental property to the
neighbor’s parents; id.; and, second, because, even though he knew that the
neighbor sometimes threw rocks, he could not have foreseen the neighbor’s
intentional or criminal misconduct in throwing a rock at a person. Id.,
629–30. It is clear that there is nothing in the court’s decision in Englund
that bears even remotely on the proper resolution of the present case.
12
We note that ‘‘General Statutes § 52-572h supplanted [the] rule of joint
and several liability with a system of apportioned liability in which each
defendant is liable for only his proportionate share of damages according
to his percentage of negligence that proximately caused the plaintiff’s injury.
. . . The stated purpose behind the apportionment statute is to prevent any
one defendant from having to pay more than his proportional share of the
damages.’’ (Citation omitted.) Alfano v. Randy’s Wooster Street Pizza Shop
II, Inc., 90 Conn. App. 766, 777, 881 A.2d 379 (2005). Even when the defendant
in a negligence action has failed to file an apportionment complaint, a jury
still may consider the negligence of unnamed parties in determining the
share of damages attributable to the defendant. See, e.g., Archambault v.
Soneco/Northeastern, Inc., 287 Conn. 20, 37, 946 A.2d 839 (2008) (‘‘A defen-
dant is entitled to try to convince the jury that not only did it not cause
[the] plaintiff’s injuries, but someone else did. A void of evidence concerning
the [nonparty’s] conduct would leave a logical hiatus in the story presented
to the jury. With no one allowed to show what part the [nonparty’s] conduct
played, the jury would be left to wonder whether anyone other than the
defendant could have caused [the] plaintiff’s injuries. . . . Thus, the defen-
dant . . . [is] entitled to show that the [nonparty’s] negligence was the
sole proximate cause of the plaintiff’s injuries.’’ [Citation omitted; emphasis
omitted; internal quotation marks omitted.]).