Demond v. Project Service, LLC , 331 Conn. 816 ( 2019 )

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GREGORY DEMOND, COADMINISTRATOR
(ESTATE OF BENJAMIN DEMOND),
ET AL. v. PROJECT
SERVICE, LLC,
ET AL.
(SC 20025)
(SC 20026)
(SC 20027)
(SC 20028)
Palmer, McDonald, Robinson, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
Pursuant to the Restatement (Second) of Torts (§ 324A), ‘‘[o]ne who under-
takes, gratuitously or for consideration, 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 to [perform] his
undertaking . . . .’’
The plaintiffs sought to recover damages from the defendants, the operators
of an interstate highway service plaza owned by the state, for, inter alia,
the wrongful death of the named plaintiff’s decedent, D, in an automobile
accident caused by a drunken driver, G, a temporarily homeless man
who for the week preceding the accident had been living out of his
vehicle at the service plaza. On the date of the accident, G consumed
a large amount of alcohol while parked at the plaza and then proceeded
to depart the plaza and drive on the adjacent highway where he caused
a multivehicle accident, killing D and injuring D’s two children and
another motorist who was driving on the highway at the time. The
defendant P Co. previously had entered into a concession agreement
with the state to operate and maintain the service plaza. P Co. subcon-
tracted the day-to-day operation of the service plaza to the defendant
A Co., and A Co. in turn subcontracted the operation of certain portions
of the service plaza to the defendant F Co. Pursuant to the agreement,
the defendants agreed not to permit the consumption of alcohol or
loitering on the premises of the service plaza, to notify the police of
any consumption of alcohol or loitering, and to train all subcontractors
and their employees to comply with those contractual obligations. The
plaintiffs alleged, inter alia, that the defendants breached a duty, arising
under § 324A of the Restatement (Second) of Torts, to protect the plain-
tiffs from the increased risk of harm created by the defendants’ failure
to perform their contractual obligations and that the accident was caused
by the defendants’ negligence. The plaintiffs also alleged that the defen-
dants created a public nuisance by permitting G to loiter and consume
alcohol at the plaza. The defendants filed motions for summary judg-
ment, contending, inter alia, that, under the circumstances, they did not
owe a duty of care to the plaintiffs. The trial court granted the defendants’
motions for summary judgment as to the public nuisance claims but
denied them as to the negligence claims. Thereafter, a jury trial was
held on the negligence claims. The trial court instructed the jury that
the defendants owed a duty of care to the plaintiffs as a matter of
law for the purpose of determining liability under § 324A, and the jury
returned a verdict in favor of the plaintiffs, finding that the defendants
were negligent, that their negligence increased the risk of harm to the
plaintiffs beyond that which existed without the defendants’ contractual
undertaking, and that the plaintiffs or others had relied on the defendants
to exercise reasonable care. Subsequently, the court denied the defen-
dants’ motions to set aside the verdict and to direct judgment in their
favor as a matter of law, concluding that the defendants owed a duty
to the plaintiffs, which was created by the concession agreement and
willingly assumed by the defendants. The court further concluded that
the jury reasonably could have found that the defendants had agreed
that the provisions in the agreement prohibiting the consumption of
alcohol and loitering at the service plaza were intended to protect motor-
ists on the adjacent highway. The trial court rendered judgment for the
plaintiffs on their negligence claims and for the defendants on the public
nuisance claims, and the plaintiffs and the defendants filed separate
appeals. Held:
1. The trial court incorrectly determined that the defendants, by undertaking
a contractual obligation to prevent the consumption of alcohol and
loitering at the service plaza, owed a duty of care to the plaintiffs under
§ 324A and, therefore, improperly denied the defendants’ motions to set
aside the verdict and to direct judgment in their favor on the negligence
claims: a landowner or possessor of property has no common-law duty
to prevent the risk of harm to third persons off the property that is
caused by a person’s consumption of alcohol on the property, and, to
impose such a duty under § 324A of the Restatement (Second) of Torts,
there must be an express contractual undertaking or evidence of an
unambiguous intention on the part of the contracting parties to protect
third persons from foreseeable, physical harm within the scope of the
services to be performed under the contract; in the present case, the
evidence was insufficient as a matter of law to support a finding that
the parties to the concession agreement, the state and P Co., had a
specific intent to protect motorists on the highway adjacent to the
service plaza from the risk of harm created by the consumption of
alcohol at the service plaza, as the agreement itself did not mention an
actual intention to provide such protection and there was no extrinsic
evidence that demonstrated any such contractual intent; moreover, evi-
dence that harm to passing motorists is a foreseeable result of the
negligent failure to prevent alcohol consumption at the service plaza
was not sufficient to establish that the no alcohol and no loitering
provisions in the concession agreement were included with the intention
of protecting highway travelers.
2. This court concluded that it was unnecessary, in light of its determination
that the defendants owed no duty of care to the plaintiffs, to address
the defendants’ claims, raised as alternative grounds for reversing the
judgment of the trial court, that, even if they owed a duty of care to
the plaintiffs, they were not liable for negligence under either § 324A
(a), because they did not increase the risk of harm to the plaintiffs by
negligently performing their contractual undertaking, or under § 324A
(c), because neither the state nor a third person relied on the defendants
to protect highway motorists; nonetheless, this court observed that there
was no evidence that the defendants’ acts or omissions served to increase
the risk of harm to the plaintiffs, and the evidence was insufficient to
establish that either highway motorists or the state had relied on the
defendants to protect motorists on the highway adjacent to the ser-
vice plaza.
3. The plaintiffs could not prevail on their claim that the trial court improperly
granted the defendants’ motions for summary judgment with respect to
their claim that the defendants created a public nuisance by allowing
G to loiter and consume alcohol at the service plaza for one week; even
if the defendants’ conduct in allowing G to loiter and consume alcohol at
the plaza contributed to such a dangerous condition, the sole proximate
cause of the automobile accident was G’s immoderate consumption of
alcohol and G’s act of driving his vehicle while intoxicated rather than
the defendants’ conduct in allowing G to loiter and consume alcohol at
the plaza.
Argued April 30 and May 1, 2018—officially released June 11, 2019
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 dis-
trict of Waterbury, where the case was transferred to
the Complex Litigation Docket; thereafter, the trial
court, Zemetis, J., granted in part the motions for sum-
mary 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. Camp-
bell, 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 appel-
lee 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 SC 20027
(plaintiffs).
Opinion
ECKER, J. Section 324A of the Restatement (Second)
of Torts imposes negligence liability, when certain con-
ditions are met, on a party whose negligent performance
of a contractual undertaking causes foreseeable physi-
cal 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 Ser-
vice), and the Connecticut Department of Transporta-
tion (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 loiter-
ing 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 obliga-
tions.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 con-
tractual 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 sum-
mary 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 there-
fore 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 subcon-
tracted 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 con-
sumption 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 treat-
ment 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 consump-
tion 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 turn-
around 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 turn-
around, 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, Nicho-
las 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 Ser-
vice, 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 activi-
ties, as required by the no alcohol/no loitering provi-
sions of the concession agreement and the various
subcontracts. The plaintiffs also alleged that the defen-
dants had maintained a public nuisance by allowing
Goodale to live and to consume alcohol at the ser-
vice plaza.
The defendants all filed motions for summary judg-
ment. 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 responsi-
ble 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 prem-
ises. 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 con-
tended that those claims failed because they were deriv-
ative 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 acci-
dents 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 no alcohol/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 loiter-
ing 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 ser-
vice plaza.
At oral argument on the motions for summary judg-
ment, 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 negli-
gent 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 ques-
tion 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 defen-
dants’ motions for summary judgment as to the negli-
gence 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 com-
plaint, 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 prem-
ises 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 submis-
sion 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 interrog-
atories. These interrogatories required the jury to deter-
mine whether each of the defendants had negligently
performed their contractual undertaking pursuant to
the concession agreement and safety plan and the vari-
ous subcontracts, and, if so, whether that defendant’s
negligence had increased the risk of harm to the plain-
tiffs beyond that which existed without the contractual
undertaking (the determinative consideration under
§324A [a]), or induced reliance by the DOT or the plain-
tiffs (the determinative consideration under § 324A
[c]).8
The jury found that the defendants each were negli-
gent, 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 Alli-
ance to protect them from harm. Finally, Alliance con-
tended that no reasonable juror could have concluded
that its negligence was a proximate cause of the plain-
tiffs’ 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 defen-
dants willingly assumed, the duty owed to [the] plain-
tiffs.’’ The court also determined that the jury
reasonably could have found that the defendants’ repre-
sentatives had agreed that the no alcohol/no loitering
provisions were intended to protect motorists on the
adjacent highway because ‘‘[e]ach [of the relevant wit-
nesses] acknowledged that if people consumed alcohol
while [at] highway service plazas, they would increase
the risk of harm to passing motorists. Each acknowl-
edged 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 concen-
trates 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 judg-
ment 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 (Sec-
ond). 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 man-
ner for the benefit of its patrons and the traveling pub-
lic.’’ (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 drink-
ing at the service plaza and then using I-395 and would
have avoided the highway if they had known that Proj-
ect 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 ver-
dicts 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 defen-
dant’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 deduc-
tions 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 judg-
ment notwithstanding the verdict because that motion
is not a new motion, but [is] the renewal of [the previ-
ous] motion for a directed verdict.’’ (Citation omitted;
internal quotation marks omitted.) Bagley v. Adel Wig-
gins 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 situa-
tion 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 defen-
dant.’’ (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 sur-
rounding the conduct of the individual.’’ (Internal quota-
tion 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 plain-
tiff 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 determi-
nation 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 Law-
rence 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 excep-
tional circumstances exist. See Cannizzaro v. Mari-
nyak, 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) (dis-
cussing affirmative duty of care to protect minor partici-
pants 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 interde-
pendent 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 neg-
ligence’’); 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 tortfea-
sor, who had purchased and consumed alcohol on their
property, from driving] or otherwise to guard against
injuries sustained at unknown distances from the defen-
dants’ 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 loiter-
ing 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 provi-
sions 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 under-
taking. 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, defen-
dant 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 hos-
pital 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 Febru-
ary 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 negli-
gent performance of the no alcohol/no loitering provi-
sions because they undertook the DOT’s preexisting
duty ‘‘to keep its premises in a reasonably safe condi-
tion’’ 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 prem-
ises. 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 lia-
ble 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 liabil-
ity, 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 pro-
tect 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 regard-
ing 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 defen-
dants’ contractual undertaking to prevent consumption
of alcohol and loitering at the service plaza constituted
‘‘services to another which he should recognize as nec-
essary 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 safe-
guarding 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 high-
way 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 inten-
tions 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 con-
struing § 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 suf-
ficient’’ [citation omitted]). Although the contract may
help to define the scope of the undertaking, ‘‘the congru-
ence 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 enforce-
able 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 plain-
tiffs’ 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 lan-
guage of § 324A—’’should recognize as necessary for
protection of a third person . . . .’’20 Closer examina-
tion, 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 contrac-
tual 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 (Sec-
ond) itself. Section 324A derives from the ‘‘modern’’
common-law rule, first adopted a century ago, that a
defendant who undertakes to perform contractual ser-
vices 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 con-
temporary social activities, including commercial activ-
ities 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, how-
ever, does not eliminate all other defenses that an under-
taking party may have regarding the nature and scope
of the duty imposed; nor does the elimination of privity
expand the scope of the duty to third parties without
limitation. Section 324A precludes a defendant from
arguing that it owes no duty to third parties to the
transaction merely because they are third parties. The
defendant still can argue, however, that a particular
third-party plaintiff belongs to a class that is outside
the scope of protection afforded by § 324A due to the
limited scope and nature of the particular undertaking
at issue.
Under the circumstances of the present case, our
task is simplified because the dispute regarding the
scope of the duty arises in a very specific context involv-
ing third-party harm caused by a drunken motorist.
Existing and well established Connecticut common-law
rules provide significant guidance under these circum-
stances. As discussed previously, these rules, which the
plaintiffs do not request us to revisit or rescind, exhibit
a strong policy against imposing negligence liability for
off premises harm caused by drunk drivers. Indeed, the
defendants would not be exposed to negligence liability
even if they had been operating a bar or liquor store
rather than a service plaza, and had poured Goodale
the alcohol that caused him to become intoxicated that
day. The question presented in these appeals is whether
by undertaking a contractual obligation to prevent alco-
hol consumption and loitering on the premises of the
service plaza, the foregoing background common-law
assumptions were altered such that the defendants will
be deemed to have undertaken an obligation to prevent
the risk of harm posed to passing motorists by intoxi-
cated drivers under § 324A of the Restatement (Second).
In our view, the same policy considerations underly-
ing the preexisting Connecticut common law require,
in the context of the present case, either an express
contractual undertaking or evidence of an unambigu-
ous intention on the part of the contracting parties
before the law will impose a duty to protect third per-
sons from off premises harm caused by an intoxicated
driver. Unless there is sufficient evidence to support a
jury finding that the contracting parties actually
intended to depart from the preexisting liability rules,
or some other basis for imposing a duty—e.g., a special
caretaking or supervisory relationship between the
defendant and either the primary tortfeasor or the vic-
tim—a landowner or possessor who undertakes to pre-
vent the consumption of alcohol as part of its on
premises responsibilities does not thereby incur a duty
to protect third parties from off premises physical harm
caused by a driver who became intoxicated before leav-
ing the premises. The undertaking party’s duty to pro-
tect third persons from off premises harm under these
circumstances, in the absence of an express under-
standing between the contracting parties or an affirma-
tive duty arising from some other source, is coextensive
with the preexisting duty of the property owner under
the common law. See DiLullo v. Joseph, 259 Conn. 847,
851, 792 A.2d 819 (2002) (determination as to appro-
priate default contract provision is based on policy con-
siderations); State v. King, 361 Or. 646, 658, 398 P.3d
336 (2017) (contractual ‘‘[d]efault rules may be based
on . . . basic principles of justice’’ [internal quotation
marks omitted]).
In this regard, it is important to understand that the
duty analysis under § 324A of the Restatement (Second)
remains subject to policy based limitations. See Ruiz
v. Victory Properties, LLC, supra, 315 Conn. 337 (‘‘[t]he
final step in the duty inquiry, then, is to make a determi-
nation of the fundamental policy of the law, as to
whether the defendant’s responsibility should extend
to such results’’ [internal quotation marks omitted]);
see also Premo v. General Motors Corp., 210 Mich.
App. 121, 123–24, 533 N.W.2d 332 (1995) (holding that
Michigan public policy militated against imposing duty
to third persons on employer who allowed intoxicated
worker to drive away from workplace in alleged contra-
vention of internal policy of preventing intoxicated
employees from driving); 1 Restatement (Third), Torts,
Liability for Physical and Emotional Harm § 7 (b), p.
77 (2010) (‘‘[i]n exceptional cases, when an articulated
countervailing principle or policy warrants denying or
limiting liability in a particular class of cases, a court
may decide that the defendant has no duty’’); 2
Restatement (Third), supra, § 43, comment (b), p. 115
(‘‘[e]ven though an affirmative duty might exist pursu-
ant to this [s]ection, a court may decide, based on spe-
cial problems of principle or policy, that no duty or a
duty other than reasonable care exists’’). The common-
law rules that govern the premises liability of a property
owner or possessor in this context embody the public
policy determinations of the courts and the legislature
regarding the appropriate allocation of rights and obli-
gations among the various parties. See Munn v. Hotch-
kiss School, supra, 326 Conn. 549 (‘‘duty . . . 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’’ [internal quotation marks omit-
ted]); see also Barry v. Quality Steel Products, Inc.,
263 Conn. 424, 440, 820 A.2d 258 (2003) (‘‘the doctrine
of superseding cause involves a question of policy and
foreseeability regarding the actions for which a court
will hold a defendant accountable’’). There may or may
not come a time in the future when those common-
law rules change in response to policy developments
relating to the serious social problem of drunken driv-
ing. This case presents no occasion to consider the
issue. In the absence of an express contractual provi-
sion or evidence of an unambiguous intention on the
part of the contracting parties, we can perceive no rea-
son why the policy considerations underlying our
existing common-law rules of premises liability should
automatically or presumptively be abrogated when a
party’s contract with a property owner includes an obli-
gation to prevent alcohol consumption on the premises,
without more. We therefore conclude that the duty pro-
posed by the plaintiffs will not arise unless the parties
to such a contract agree to expand the undertaking
party’s obligations beyond what is imposed by the
existing law.
There is no evidence in the present case that the
parties intended contractually to alter or extend the
existing common-law rules holding that a party in the
defendants’ position has no duty to protect off premises
travelers from the risks posed by intoxicated drivers
who consumed alcohol while loitering at the service
plaza. The contractual documents themselves do not
mention or suggest the existence of any such duty. The
documents establish only that Project Service under-
took a contractual obligation to prohibit alcohol con-
sumption and loitering at the service plaza, to notify
the police of any consumption of alcohol or loitering,
and to train all subcontractors and employees of sub-
contractors to comply with those contractual obliga-
tions. There is no reference to highway travelers or
their protection in connection with the no alcohol/no
loitering provision.21 Simply put, no aspect of the con-
tract expresses an actual intention to protect highway
motorists from the risk of harm created by alcohol
consumption by individuals at the service plaza.
Nor does any extrinsic evidence presented by the
plaintiffs demonstrate any such contractual intent. The
plaintiffs submitted the deposition testimony of Paul
Landino, the chief executive officer of Project Service,
to support their contention that ‘‘[i]t was understood by
Project Service . . . that the reason for [the no alcohol
provision of the concession agreement] was the obvious
danger to patrons of the service plaza and motorist on
the adjacent . . . highway.’’ Landino’s testimony
unquestionably supports the conclusion that the danger
by its very nature is foreseeable, that is, that Project
Service knew, or should have known, that a person who
drove after consuming alcohol at the service plaza—or
anywhere else—posed a foreseeable risk of harm to
motorists on the roads. It is also reasonably clear that
Project Service believed that preventing alcohol con-
sumption at the service plaza could in one sense reduce
the risk of such harm on the portion of the highway
immediately adjacent to the service plaza.22 But evi-
dence that harm to motorists was a foreseeable result
of the negligent failure to prevent alcohol consumption
at the service plaza is not sufficient to establish that
the no alcohol/no loitering provisions were included in
the contract with the intention of protecting highway
travelers. Because Connecticut common law clearly
establishes a rule of nonliability in this context, the
plaintiffs were required to demonstrate that the parties
to the undertaking had an actual intention to protect
motorists when they included the no alcohol/no loiter-
ing provisions in the concession agreement. On this
record, no reasonable fact finder could conclude that
the parties to the concession agreement had such a
specific intent.
The plaintiffs also submitted evidence at the sum-
mary judgment stage showing that loitering and alcohol
consumption were ongoing problems at service plazas
in this state while Project Service was operating the
service plaza. In one inspection report, the DOT advised
the operator of a service plaza that it had removed a
sleeping homeless person from the service plaza and
that ‘‘the hassle free experience at this plaza is your
responsibility.’’ In another inspection report, the DOT
noted that the manager of the McDonald’s restaurant
at a service plaza wanted the operator of the service
plaza ‘‘to remove [a] homeless man as [his presence]
reduces sales and makes potential customers uncom-
fortable.’’ In yet another inspection report, the DOT
advised the operator of a service plaza that a ‘‘drunk
man was harassing one of the [McDonald’s restaurant]
employees at the drive [through] window.’’ Other
inspection reports noted the presence of panhandlers
and beggars at service plazas. These inspection reports
do not provide the necessary evidence of contractual
intention to create a jury issue. To the contrary, they
tend to confirm the defendants’ position that the pur-
pose of the no alcohol/no loitering provisions was to
ensure the safety and comfort of customers and employ-
ees of the service plaza. The reports cast no light on
whether there was a specific intention to protect high-
way travelers.
We conclude that the evidence presented by the plain-
tiffs was insufficient as a matter of law to support a
finding that the contracting parties had the specific
intent to protect passing motorists from the risk of
harm created by the consumption of alcohol at the
service plaza. Because we hold that proof of such an
intention is required in the particular context of this
case, we must reverse the judgment of the trial court
with respect to the plaintiffs’ negligence claims and
remand the case with direction to render judgment in
favor of the defendants on those claims.
We recognize that the plaintiffs and their families
have suffered a horrible tragedy, through no fault of
their own. The plaintiffs’ harm was caused by a wrong-
doer, Goodale, who is morally and legally culpable for
the unspeakable loss caused by his conduct. Although
we understand the plaintiffs’ desire to hold accountable
all entities who might have contributed to their loss,
we conclude for the foregoing reasons that the imposi-
tion of liability on the defendants is inconsistent with
the present state of Connecticut law. Accordingly, we
must reverse in part the judgment of the trial court.
III
It is unnecessary to reach the other grounds for rever-
sal of the plaintiffs’ negligence claims advanced by the
defendants, but we do so briefly to demonstrate that
the flaws contained in the plaintiffs’ theory of liability
run deep, and the judgment would not be saved even
if we were to assume that Project Service undertook a
duty to protect passing motorists from the risk of harm
posed by intoxicated drivers. These additional grounds
relate to the specific predicates to liability necessary
under subsections (a) and (c) of § 324A of the Restate-
ment (Second).
Section 324A (a) of the Restatement (Second)
imposes liability only if the defendants’ negligent con-
duct increases the risk of harm to the third party, in this
case the passing motorists on I-395. See 2 Restatement
(Second), supra, § 324A (a), p. 142 (person is liable for
failure to perform undertaking with reasonable care if
‘‘his failure to exercise reasonable care increases the
risk of such harm’’). The plaintiffs claim that the defen-
dants increased the risk of harm to them by negligently
performing their undertaking of preventing the con-
sumption of alcohol at the service plaza. They contend
that if the defendants had done their job properly, the
harm would have been prevented, and so their negligent
performance increased the risk of harm. The flaw in
this logic is concisely identified in Jain v. State, 617
N.W.2d 293 (Iowa 2000), in which the Iowa Supreme
Court, analyzing a virtually identical increased risk ele-
ment found in § 323 of the Restatement (Second),
observed that ‘‘the increase in the risk of harm required
is not simply that which occurs when a person fails to
do something that he or she reasonably should have.
Obviously, the risk of harm to the beneficiary of a ser-
vice is always greater when the service is performed
without due care. Rather . . . [liability exists] only
when the defendant’s actions increased the risk of harm
to [the] plaintiff relative to the risk that would have
existed had the defendant never provided the services
initially. Put another way, the defendant’s negligent per-
formance must somehow put the plaintiff in a worse
situation than if the defendant had never begun perfor-
mance.’’ (Citation omitted; internal quotation marks
omitted.) Id., 299.
We find Jain persuasive as applied to the circum-
stances in this case and, therefore, reject the plaintiffs’
suggestion that the negligent performance of an under-
taking itself ordinarily will satisfy the increased risk
requirement of § 324A (a) of the Restatement (Second).
As the court in Jain recognized, under the plaintiffs’
interpretation, the ‘‘increased risk’’ element contained
in § 324A (a) would become an illusory requirement
because the failure to exercise reasonable care when
performing an undertaking that is necessary for the
protection of third persons will always increase the
risk to such persons over the level of risk that would
have existed if the undertaking were performed non-
negligently. We agree with the court in Jain that, in
the ordinary case under § 324A (a), a plaintiff must
establish that the contracting party increased the risk
of harm over the level of risk that would have existed
if there had been no undertaking at all.23
There is no evidence in the present case that the
defendants’ acts or omissions did anything to increase
the risk of harm within the meaning of § 324A (a) of
the Restatement (Second). We reject, in this connec-
tion, the plaintiffs’ claim that the defendants placed the
plaintiffs in a worse position than they would have
been in the absence of any undertaking because the
defendants ‘‘made the [service] plaza an attractive
option to Goodale’’ by permitting him to charge his cell
phone in the convenience store, to use the restroom
facilities and to purchase food. These allegations, even
if true, do nothing to show that the conditions at the
service plaza became more dangerous under the defen-
dants’ operation than before Project Service engaged
in the undertaking, or that the defendants made the
service plaza a more attractive option to Goodale than
it would have been if Project Service had never under-
taken to prevent loitering and alcohol consumption in
the first instance. Because there is no evidence that the
plaintiffs were placed in a worse position than they
would have been if there had been no undertaking in
the first instance to prevent the consumption of alcohol
at the service plaza, the increased risk requirement of
§ 324A (a) was not satisfied.
We likewise would conclude that liability under
§ 324A (c) of the Restatement (Second) has not been
established on this record because there is insufficient
evidence that either the DOT or passing motorists relied
on the defendants to protect travelers on I-395. See 2
Restatement (Second), supra, § 324A (c), p. 142 (person
is liable for failure to perform undertaking with reason-
able care if ‘‘the harm is suffered because of reliance
of the other or the third person upon the undertaking’’).
The plaintiffs assert that Demond and Crouch ‘‘likely
would have avoided I-395 had they known [that] Project
Service . . . [was] allowing an intoxicated alcoholic to
live out of his car at the service plaza’’ but have cited
no evidence that would support such a finding. Nothing
in the record establishes that Demond or Crouch
believed that alcohol consumption at the service plaza
was not permitted or that they would have avoided I-
395 if they had been aware that the defendants could not
always be depended on to enforce such a prohibition.
A more substantial question under § 324A (c) of the
Restatement (Second) is whether the DOT, by requiring
Project Service and its subcontractors to prohibit loiter-
ing and alcohol consumption on the premises, relied
on them to protect drivers on I-395 from the physical
harm caused by drivers who might become intoxicated
by consuming alcohol at the service plaza. It is not
inconceivable to us that the DOT might wish to pursue
the laudable goal of enhancing highway safety by includ-
ing a provision, expressly reflecting that intention, in
its service plaza concession agreements. If it did so,
and if the undertaking party agreed, then, assuming that
the DOT has authority to impose such a contractual
term,24 the DOT’s reliance on the undertaking party’s
performance presumably would trigger the undertaking
party’s liability to third parties under § 324A (c). But
there is no evidence of any such intention here, as we
previously have discussed in our duty analysis. The
no alcohol/no loitering provisions say nothing about
highway safety, there is nothing elsewhere in the con-
tract to support a conclusion that the provisions were
intended to enhance highway safety, and no witness
testified that the DOT included the provisions to further
that objective or relied on the defendants to help
achieve it. Again, in the absence of such evidence, we
will not presume reliance under the circumstances of
this case in light of the well established, preexisting
common-law rules that inform our analysis.
In summary, we conclude that the defendants’ under-
taking to prevent alcohol consumption and loitering at
the service plaza, standing alone, did not constitute an
undertaking to protect passing motorists from the risk
of harm created by persons who consumed alcohol at
the service plaza and then drove, thereby giving rise to a
duty to such motorists under § 324A of the Restatement
(Second). We also conclude that the plaintiffs have not
established that the defendants increased the risk of
harm to them within the meaning of § 324A (a), or that
the plaintiffs or the DOT relied on the undertaking for
the purposes of § 324A (c). Accordingly, we conclude
that the trial court improperly denied the defendants’
motions to set aside the verdict and to render judgment
in their favor on the plaintiffs’ negligence claims, and
we reverse the judgment as to those claims.
IV
We next address the plaintiffs’ claim that the trial
court improperly granted summary judgment in favor of
the defendants on the plaintiffs’ public nuisance claims.
The plaintiffs contend that the defendants created a
public nuisance by creating ‘‘an environment that
allowed and encouraged Goodale to loiter and [to] con-
sume alcohol at the . . . service plaza for over a
week.’’25 We affirm the judgment of the trial court on
this claim.
The standard of review is not disputed. ‘‘In deciding
a motion for summary judgment, the trial court must
view the evidence in the light most favorable to the
nonmoving party. . . . The party seeking summary
judgment has the burden of showing the absence of
any genuine issue [of] material facts which, under appli-
cable principles of substantive law, entitle him to a
judgment as a matter of law . . . and the party oppos-
ing such a motion must provide an evidentiary founda-
tion to demonstrate the existence of a genuine issue
of material fact.’’ (Internal quotation marks omitted.)
Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly,
P.C., 311 Conn. 282, 290, 87 A.3d 534 (2014).
The substantive law governing public nuisance claims
is also well established. ‘‘Section 821B of the Restate-
ment (Second) of Torts defines a public nuisance as
‘an unreasonable interference with a right common to
the general public.’ . . . Whether an interference is
unreasonable in the public nuisance context depends,
according to the Restatement (Second), on ‘(a)
[w]hether the conduct involves a significant interfer-
ence with the public health, the public safety, the public
peace, the public comfort or the public convenience, or
(b) whether the conduct is proscribed by [law] . . . .’
4 Restatement (Second), [Torts] § 821B [p. 87, (1979)].
The rights common to the general public can include,
but certainly are not limited to, such things as the right
to use a public park, highway, river or lake. Id., § 821D,
comment (c) [p. 101].’’ (Citation omitted.) Pestey v.
Cushman, 259 Conn. 345, 356 n.5, 788 A.2d 496 (2002).
‘‘To prevail [on] a claim for public nuisance . . . a
plaintiff must prove the following elements: (1) the con-
dition complained of had a natural tendency to create
danger and inflict injury upon person or property; (2)
the danger created was a continuing one; (3) the use
of the land was unreasonable or unlawful; [and] (4) the
existence of the nuisance was the proximate cause of
the plaintiffs’ injuries and damages. . . . In addition,
the plaintiff must prove that the condition or conduct
complained of interferes with a right common to the
general public. . . . Nuisances are public where they
. . . produce a common injury . . . . The test is not
the number of persons annoyed, but the possibility of
annoyance to the public by the invasion of its rights. A
public nuisance is one that injures the citizens generally
who may be so circumstanced as to come within its
influence.’’ (Citation omitted; internal quotation marks
omitted.) Shukis v. Board of Education, 122 Conn. App.
555, 586–87, 1 A.3d 137 (2010).
In Quinnett v. Newman, supra, 213 Conn. 348, this
court considered the question whether ‘‘the sale of sub-
stantial amounts of alcohol to one who thereafter oper-
ates a motor vehicle upon a public highway is analogous
to the types of acts that have been held to be public
nuisances.’’ We concluded that this type of conduct by
one in possession of land does not give rise to a public
nuisance for the same reason that it does not give rise
to a claim for negligence, namely, that the proximate
cause of the plaintiff’s decedent’s death was the intoxi-
cated motorist’s ‘‘own immoderate use of the alcohol
and not in its service to him by the defendant sellers.’’
Id., 349.
The plaintiffs attempt to distinguish Quinnett on the
ground that, in that case, ‘‘the inherently dangerous
condition claimed to constitute a nuisance [was] the
intoxicated adult operator of the motor vehicle’’; id.;
whereas, in the present case, the claimed dangerous
condition was the ‘‘creation of an environment that
allowed and encouraged Goodale to loiter and [to] con-
sume alcohol at the highway service plaza for over
a week.’’ The supposed distinction does not survive
examination on this record. As we have indicated, the
plaintiff in Quinnett contended that the defendants’
‘‘sale of substantial amounts of alcohol to one who
thereafter operates a motor vehicle upon a public high-
way’’ created a public nuisance. (Emphasis added.) Id.,
348. Our statement that the intoxicated driver was the
‘‘inherently dangerous condition claimed to constitute
a nuisance’’ merely recognized that the defendants’ sale
of liquor, in and of itself, was not dangerous. To the
extent that the defendants’ conduct contributed to the
creation of the dangerous condition (i.e., the intoxica-
tion of the motorist), their liability was cut off by the
intoxicated motorist’s own choice to consume alcohol
immoderately and then drive. See id., 349; see also
Bohan v. Last, supra, 236 Conn. 676 (‘‘Although we
have never held that [landowners who purvey alcohol
to social guests] have no [common–law] duty to exer-
cise due care to protect the foreseeable victims of those
who drink and drive, we have, nonetheless, declined
to recognize a claim in negligence. Such a claim has
uniformly failed for the reason that the subsequent
injury has been held to have been proximately caused
by the intervening act of the immoderate consumer
whose voluntary and imprudent consumption of the
beverage brings about intoxication and the subsequent
injury.’’ [Internal quotation marks omitted.]); Ely v.
Murphy, 207 Conn. 88, 93, 540 A.2d 54 (1988) (‘‘At com-
mon law it was the general rule that no tort cause of
action lay against one who furnished, whether by sale
or gift, intoxicating liquor to a person who thereby
voluntarily became intoxicated and in consequence of
his intoxication injured the person or property either
of himself or of another. The reason generally given for
the rule was that the proximate cause of the intoxication
was not the furnishing of the liquor, but the consump-
tion of it by the purchaser or donee. The rule was
based on the obvious fact that one could not become
intoxicated by reason of liquor furnished him if he did
not drink it.’’ [Internal quotation marks omitted.]). Simi-
larly, in the present case, even if we assume that the
defendants’ conduct in allowing Goodale to live and
consume alcohol at the service plaza contributed to the
‘‘dangerous condition’’ (i.e., Goodale’s presence at the
service plaza in an intoxicated state), established legal
principles in Connecticut, which the plaintiffs have not
asked us to overrule, deem the sole proximate cause
of the crash to be Goodale’s choice to consume alcohol
immoderately and then drive on I-395. We conclude,
therefore, that the trial court properly granted the
defendants’ motions for summary judgment on the
plaintiffs’ public nuisance claims.
The judgment is reversed with respect to the plain-
tiffs’ claims for negligence and the case is remanded
with direction to render judgment for the defendants
as to those claims; the judgment is affirmed in all
other respects.
In this opinion the other justices concurred.
* These appeals originally were argued before a panel of this court con-
sisting of Justices Palmer, McDonald, Robinson, D’Auria, Mullins and Kahn.
Thereafter, Justice Ecker was added to the panel and has read the briefs
and appendices, and listened to a recording of the oral argument prior to
participating in this decision. The listing of justices reflects their seniority
status on this court as of the date of oral argument.
1
Section 324A of the Restatement (Second) provides: ‘‘One who under-
takes, gratuitously or for consideration, to render services to another which
he should recognize as necessary for the protection of a third person or his
things, is subject to liability to the third person for physical harm resulting
from his failure to exercise reasonable care to [perform] his undertaking, if
‘‘(a) his failure to exercise reasonable care increases the risk of such
harm, or
‘‘(b) he has undertaken to perform a duty owed by the other to the third
person, or
‘‘(c) the harm is suffered because of reliance of the other or the third
person upon the undertaking.’’ 2 Restatement (Second), Torts § 324A, p.
142 (1965).
We note that the language in the introductory portion of this section, ‘‘to
[perform] his undertaking,’’ apparently included a typographical error and
used the word ‘‘protect’’ instead of ‘‘perform.’’ See Hill v. United States
Fidelty & Guaranty Co., 428 F.2d 112, 115 n.5 (5th Cir. 1970) (‘‘[t]he reporter
for this edition of the Restatement, by a letter to counsel furnished to this
court, has verified that the word ‘protect’ which appears at this point is a
typographical error and should read ‘perform’ ’’).
Section 324A of the Restatement (Second) and the accompanying com-
mentary were substantially revised by § 43 of the Restatement (Third) of
Torts, published in 2012. See 2 Restatement (Third), Torts, Liability for
Physical and Emotional Harm § 43, p. 114 (2012). For reasons not apparent
from the record, the parties have neither cited nor relied on § 43 at any
stage of this litigation. We decide the case as it was litigated, and, although we
refer to § 43 and related provisions of the Restatement (Third) on occasion
to help cast light on the construction and application of § 324A, we offer
no definitive ruling as to whether we would adopt § 43 if asked to do so,
or the effect that adopting § 43 might have on our analysis.
2
The jury awarded damages to the plaintiffs in the amount of $1,835,000,
and apportioned the defendants’ negligence as follows: 40 percent to Project
Service and 20 percent each to the other three defendants. The trial court
thereafter granted the plaintiffs’ motion for additur, increasing the total
damages award to $5,347,000. The plaintiffs accepted the court-ordered
additur on August 18, 2016.
3
The parties filed their appeals in the Appellate Court, and we transferred
the appeals to this court pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-1.
4
The concession agreement required Project Service to ‘‘provide all appli-
cable . . . safety . . . safeguards for operations of the [service plaza] . . .
that are required . . . to protect the health, safety and welfare of the public,
[e]mployees, [the DOT] and its employees and any [DOT] [r]epresentatives
and any of the [s]tate’s [r]epresentatives in accordance with all applicable
[l]egal [r]equirements.’’ The concession agreement also provided that Project
Service ‘‘shall not . . . allow the . . . consumption of any intoxicating or
alcoholic beverages or any fermented ale, wine, liquor or spirits in any part
of the [service plaza].’’ In addition, the safety plan that was incorporated
into the concession agreement provided that ‘‘Project Service . . . has made
a commitment to provide a drug and alcohol-free workplace. . . . The use,
possession of open containers, personal sale, transfer, or acceptance of
alcohol on Project [Service’s] property is strictly prohibited. Project Service
. . . has the right to remove from, or deny access to, our stores anyone on
our property under the influence of [a]lcohol, and/or consuming [a]lcohol
on our property. Project [Service’s] [f]acilities [m]anager may report illegal
activity to the appropriate law enforcement authorities.’’ The safety plan
also required Project Service and its subcontractors to ‘‘[l]ook for anyone
who may be watching or loitering in or around the [service plaza].’’ The
consumption of alcohol and loitering were considered to be emergencies
requiring Project Service and its subcontractors to call the state police. The
trial court found that the no alcohol/no loitering provisions were included
as part of various safety plans, operation manuals and downstream subcon-
tracts binding on Alliance and 4MM.
5
The complaint also named O, R & L Facility Services, LLC, and Global
Partners, LP, as defendants. The claims against those defendants were dis-
posed of before trial and are not at issue in these appeals.
6
At trial, the jury was instructed that Project Service could be held liable
to the plaintiffs under § 324A (a) or (c) of the Restatement (Second), but not
under subsection (b). Subsection (b) is strictly a ‘‘pass-through’’ provision,
which, as we discuss subsequently in this opinion, imposes liability on an
undertaking party based on that party’s assumption of a preexisting duty
owed by the original duty holder. See 2 Restatement (Second), Torts § 324A
(b), p. 142 (1965). Subsection (b) evidently was charged out of this case
because the plaintiffs made no claim that the original duty holder, the DOT,
had a preexisting duty to protect them from the risk of harm created by
persons who consumed alcohol at the service plaza and then drove onto
the highway. Although the jury was instructed that it could not hold Project
Service liable under subsection (b) of § 324A, no such instruction was pro-
vided as to Alliance or 4MM. To the contrary, the jury interrogatories and
verdict form permitted the jury to find Alliance and 4MM liable under § 324A
(b) for their negligent performance of a duty owed to the plaintiffs by either
Project Service or the DOT. The record does not disclose why the jury was
informed that Alliance and 4MM might have a duty arising from the DOT’s
duty to the plaintiffs when the parties believed that Project Service had no
such duty.
7
The trial court gave the following instructions to the jury on this issue:
‘‘[T]he defendants have a legal duty to the plaintiffs arising out of the
contracts with the [s]tate of Connecticut, and . . . [the DOT], and with
each other.’’
‘‘Project Service contractually undertook to render services to the [s]tate
of Connecticut. Those services were defined by the [c]oncession [a]greement
and the [s]afety [p]lan. Project Service had to perform its contractual obliga-
tions with reasonable care to avoid creating or increasing the risk of physical
harm to a third person, such as the plaintiffs. The contractual obligations
include adequate training and supervising its employees to report and
respond to the consumption of alcoholic beverages, an intoxicated person,
and/or allowing or permitting a person to live/loiter on the [service area]
. . . . Its legal duty is defined by its contractual undertakings.’’ (Empha-
sis added.)
The trial court also instructed the jury as follows with respect to § 324A
of the Restatement (Second): ‘‘An actor who undertakes to render services
to another and who knows or should know that the services will reduce
the risk of physical harm to which a third party is exposed, such as the
plaintiffs, has a duty of reasonable care to the third person, the plaintiffs,
in conducting the undertaking if:
‘‘(a) failing to exercise reasonable care increases the risk of harm beyond
that which existed without the undertaking, or
‘‘(b) the actor has undertaken to perform a duty owed by the other to a
third person, or
‘‘(c) the persons to whom the services are rendered, the third party, or
another relies on the actor’s exercising reasonable care in the undertaking.
‘‘If Project Service, through its agents, servants, or employees negligently
performed those services or contractual undertakings, as alleged by the
plaintiffs, when it knew or should have known that the contractual duties
were intended or designed to reduce the risk of physical harm to which the
travelers on the adjacent interstate highway, such as the plaintiffs, were
exposed, and
‘‘(a) Project Service’s failure to exercise reasonable care increases the
risk of harm beyond that which existed without the undertaking, or
‘‘(b) the person to whom the services are rendered, [the DOT], the third
party, such as the plaintiffs, or another relies on Project Service’s exercising
reasonable care in the undertaking, then Project Service violated the duty
of care owed to the plaintiffs and is negligent.’’ (Emphasis added.) The
court gave substantially similar jury instructions regarding the liability of
Alliance and 4MM under § 324A of the Restatement (Second), with the
additional instruction that those defendants could be held liable pursuant
to the pass-through provision of § 324A (b) because they undertook to
perform Project Service’s contractual duties. See footnote 6 of this opinion.
In his closing argument to the jury, counsel for the plaintiffs made certain
that the jury did not overlook this point, telling the jurors that the trial court
was going to charge them that Project Service ‘‘had a legal duty to the
plaintiffs arising out of the [contract] with the [DOT] . . . .’’
8
The jury interrogatories provide in relevant part: ‘‘1. Have the plaintiffs
proven by a preponderance of the evidence that Project Service . . .
through its agents, servants, or employees negligently performed the services
or contractual undertakings described by the concession agreement and
safety plan, as alleged by [the] plaintiffs, when it knew or should have known
that the contractual duties were intended or designed to reduce the risk of
physical harm to which the travelers on the adjacent interstate highway,
such as the plaintiffs, were exposed, and
‘‘(a) Project Service’s failure to exercise reasonable care in undertaking
or performing their contractual duties created or increased the risk of harm
beyond that which existed without the undertaking?
‘‘YES NO (Circle your response)
‘‘AND/OR
‘‘(b) the person/entity to whom the contractual services were rendered,
[the DOT], the plaintiffs, or another relied on Project [Service’s] exercising
reasonable care in the undertaking or performing of [its] contractual duties,
such that Project Service violated the duty of care owed to the plaintiffs
and is negligent?
‘‘YES NO (Circle your response).’’
The jury interrogatories included substantially similar instructions with
respect to Alliance and 4MM, with an additional instruction allowing the
jury to find those defendants liable pursuant to the pass-through provision
of § 324A (b) of the Restatement (Second). See footnote 6 of this opinion.
9
We note that the jury was never asked to make a finding as to the scope
of the defendants’ undertaking or the contractual intent of the parties.
10
The plaintiffs also contend that the trial court improperly applied the
nondelegable duty doctrine to the jury’s allocation of negligence. We do not
address this contention because we conclude that the trial court improperly
denied the defendants’ motions to direct a verdict in their favor on the
negligence claims and properly granted summary judgment on the public
nuisance claims.
11
For the sake of clarity and simplicity, we focus our analysis hereinafter
on the question of whether Project Service, the general contractor, owed
any duty or incurred any liability to the plaintiffs arising from its performance
under the no alcohol/no loitering provisions in the concession agreement.
On the facts of this case, the duties and liabilities of the other defendants
derived from Project Service’s undertaking. See footnote 4 of this opinion.
Accordingly, if Project Service had no duty or liability to the plaintiffs, then
it necessarily follows that the other defendants had no duty or liability to
the plaintiffs. In light of our conclusion that Project Service owed no duty
and incurred no liability to the plaintiffs, we need not consider the secondary
argument of Alliance and 4MM that they did not owe the plaintiffs a duty
even if Project Service did.
12
Three observations should be noted at this point to avoid unnecessary
analytical confusion. First, the discussion here is focused on the threshold
question of whether a duty is owed to plaintiffs under § 324A of the
Restatement (Second), not the question of establishing liability once that
duty is found to exist. If a duty is owed, liability under § 324A for breach
of the duty is determined by reference to subsections (a), (b) and (c) of
§ 324A. But the duty question comes first under § 324A, the same as it does
in other areas of tort law, and this threshold inquiry must not be overlooked
in cases under § 324A in which the scope of that duty is disputed. Second,
as we discuss subsequently in this opinion, as in other areas of tort law, there
are some circumstances in which policy considerations will be dispositive
of the duty analysis, regardless of what conclusion would follow under
§ 324A alone. Third, it is important to keep in mind that an undertaking
party can acquire an ‘‘ordinary’’ duty of care to others, directly and without
regard to § 324A, by acts or omissions that create (rather than only increase)
a risk of harm to others. See 2 Restatement (Third), Torts, Liability for
Physical and Emotional Harm § 43, comment (d), p. 115 (2012) (distinguish-
ing acts that increase risk of harm, which are controlled by revised version
of § 324A, and acts that create risk of harm, which are governed by usual
rules governing negligence).
13
To be clear, the discussion here related to a duty to protect in the
context of off premises harm. There are other premises liability rules impos-
ing liability on the possessor of land for harm caused by the conduct of a
third person on the premises. See, e.g., 2 Restatement (Second), supra, § 344,
pp. 223–24 (‘‘[a] possessor of land who holds it open to the public for entry
for his business purposes is subject to liability to members of the public
while they are upon the land for such a purpose, for physical harm caused
by the accidental, negligent, or intentionally harmful acts of third persons or
animals’’); see also Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270 (1973).
14
This rule does not apply when a property owner knowingly allows
minors to consume alcohol on his or her property. See Bohan v. Last, 236
Conn. 670, 681, 674 A.2d 839 (1996) (‘‘[i]n appropriate circumstances, adults
have a duty to refrain from negligently or intentionally supplying alcohol
to minors, whether such adults act as social hosts in their homes or as
purveyors in a bar, because minors are presumed not to have the capacity
to understand fully the risks associated with intoxication’’).
15
Connecticut’s Dram Shop Act, General Statutes § 30-102, governs the
liability of commercial entities that sell alcohol to intoxicated persons. Gen-
eral Statutes § 30-102 provides in relevant part: ‘‘If any person, by such
person or such person’s agent, sells any alcoholic liquor to an intoxicated
person, and such purchaser, in consequence of such intoxication, thereafter
injures the person or property of another, such seller shall pay just damages
to the person injured, up to the amount of two hundred fifty thousand
dollars, or to persons injured in consequence of such intoxication up to an
aggregate amount of two hundred fifty thousand dollars, to be recovered
in an action under this section . . . .’’
16
We recognize that these cases were decided on ‘‘causation’’ rather than
‘‘duty’’ grounds. See Bohan v. Last, supra, 236 Conn. 676 (‘‘Although we
have never held that [landowners who purvey alcohol to social guests] 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. Such a claim has uniformly failed for the reason that
the subsequent injury has been held to have been proximately caused by the
intervening act of the immoderate consumer whose voluntary and imprudent
consumption of the beverage brings about intoxication and the subsequent
injury.’’ [Internal quotation marks omitted.]). Both doctrines, however, are
driven in significant part by considerations of policy, separate and apart
from the foreseeability of harm, and it is fair to say that the causation doctrine
developed in these cases is based primarily on policy considerations. For
this reason, it is difficult to perceive any meaningful distinction between a
doctrine holding that landowners have no duty to prevent harm to roadway
travelers caused by drunk drivers and one holding that landowners have
such a duty but their liability is categorically barred by the intervening act
of the drunk driver.
17
We address later in this opinion the plaintiffs’ contention that, even if
Project Service may not be held liable to the plaintiffs merely because it
undertook to prevent alcohol consumption at the service plaza, it may be
held liable because the parties to the concession agreement specifically
intended to alter the common-law rule that a person in control of a property
may not be held liable for injuries caused by a person who consumed alcohol
on the property and then drove.
18
Under Florida law, ‘‘a public or private entity which owns, operates, or
controls a property, including a roadway, owes a duty to maintain that
property, and a corresponding duty to warn of and correct dangerous condi-
tions thereon.’’ Pollock v. Dept. of Highway Patrol, 882 So. 2d 928, 933
(Fla. 2004).
19
If the intentions of the contracting parties controlled exclusively, then
there would be no need for § 324A of the Restatement (Second); we would
ask only whether the motorists on I-395 were third-party beneficiaries of the
concession agreement. See Dow & Condon, Inc. v. Brookfield Development
Corp., 266 Conn. 572, 580, 833 A.2d 908 (2003) (‘‘[t]he ultimate test to be
applied [in determining whether a person has a right of action as a third-
party beneficiary] is whether the intent of the parties to the contract was
that the promisor should assume a direct obligation to the [third-party
beneficiary] and . . . that intent is to be determined from the terms of the
contract read in the light of the circumstances attending its making, including
the motives and purposes of the parties’’ [internal quotation marks omitted]).
Section 324A exists because contractual principles alone have been deemed
insufficient to provide adequate protection to those at risk of harm. See
Gazo v. Stamford, supra, 255 Conn. 253–58 (holding that defendant had
duty to plaintiff under § 324A, even though plaintiff was not third-party
beneficiary of contract); Jenkins v. Best, 250 S.W.3d 680, 695 (Ky. App.
2007) (defendant that agreed to provide perinatal services to hospital owed
tort duty to patient based on § 324A even though patient was not third-party
beneficiary of contract).
20
A pure foreseeability model of duty is ‘‘tolerably compatible’’ with the
relevant language of § 324A of the Restatement (Second) because the
Restatement (Second) refers to ‘‘services to another which the [undertaking
party] should recognize as necessary for the protection of [others] . . . .’’
2 Restatement (Second), supra, § 324A, p. 142. The phrase ‘‘should recognize
as necessary’’ is not a standard utilized in tort law, and its meaning is unclear.
Cf. 1 Restatement (Second), Torts § 11, p. 19 (1965) (defining ‘‘reasonably
believes’’ as used throughout Restatement); id., § 12, pp. 19–20 (defining
‘‘reason to know’’ and ‘‘should know’’). Moreover, the commentary to § 324A
provides no assistance in ascertaining the intended meaning. Courts appear
to assume, without particularized analysis, that the phrase simply requires
foreseeability of the third-party harm. See, e.g., Davis v. Protection One
Alarm Monitoring, Inc., supra, 456 F. Supp. 2d 249–52 (citing § 324A in
support of proposition that one who assumes contractual duty must perform
that duty with reasonable care to third parties who are foreseeably exposed
to danger and injured as result of negligent performance); Platson v. NSM,
America, Inc., 322 Ill. App. 3d 138, 151, 748 N.E.2d 1278 (2001) (‘‘[w]e hold
. . . that [§] 324A would impose liability for [the defendant’s] failure to
protect [the] plaintiff against such dangers provided they were reasonably
foreseeable when [the defendant’s] omission occurred’’); Cantwell v. Alle-
gheny County, 506 Pa. 35, 41, 483 A.2d 1350 (1984) (‘‘[t]his is essentially a
requirement of foreseeability’’); Kuehl v. Horner (J.W.) Lumber Co., 678
N.W.2d 809, 813 (S.D. 2004) (reversing summary judgment in defendant’s
favor based on conclusion that ‘‘material issues of fact [exist] as to [the
defendant’s] assistance in loading the trailer for travel on a public highway
and [its] failure to use reasonable care thereby increasing a foreseeable risk
of harm to the public’’); Stephenson v. Universal Metrics, Inc., 251 Wis. 2d
171, 190, 641 N.W.2d 158 (2002) (‘‘As this court has applied it, the framework
of § 324A comports with Wisconsin’s principles of negligence law. The basic
principle of duty in Wisconsin is that a duty exists when a person fails to
exercise reasonable care—when it is foreseeable that a person’s act or
omission may cause harm to someone.’’). In Gazo v. Stamford, supra, 255
Conn. 245, in which we adopted the principles of liability contained in § 324A
(b), this court itself also underscored the important role that foreseeability
plays in the extension of negligence liability to contractors. Id., 254; see id.
(‘‘[a]lthough we agree that contractors may be liable to parties whom they
could not have necessarily identified specifically when entering into the
original contract, they always have had a duty to perform their work in a
nonnegligent manner, and our conclusion does no more than to hold contrac-
tors liable to those parties foreseeably injured by their negligence’’).
21
In a different portion of the concession agreement, Project Service
agreed to ‘‘maintain and control the [service plaza] in such a manner that
neither [Project Service] nor any [s]ubcontractor shall . . . intentionally
impede or endanger the safe and orderly flow of traffic in and along the
[r]oadways,’’ including I-395. (Emphasis added.) This latter provision has
no connection to the no alcohol/no loitering provisions and, therefore, has
no bearing on our analysis.
22
Landino testified as follows:
‘‘Q: Do you have an understanding as to why it is that the consumption
of alcohol is prohibited on the Montville service plaza premises?
***
‘‘A. Yes.
‘‘Q. Why is that?
‘‘A. Obviously, driving and drinking is not a healthy thing to partake in.
‘‘Q. So, I’m sure this is obvious, but so we get it clear on the record, you
were aware and you understood that drinking alcohol and driving is a
serious danger?
‘‘A. Yes, sir.
‘‘Q. And it poses even greater dangers on a highway service plaza, correct?
‘‘A. It’s bad everywhere.
‘‘Q. I assume you were aware and you would agree that at all times prior
to March 9 of 2012, you knew that the consumption of alcohol on the
premises of the Montville service plaza not only posed a risk of harm to
patrons at the plaza itself, but also to individuals on the highway as people
would leave the plaza, correct?
‘‘A. Absolutely.
‘‘Q. . . . I noticed in a number of the documents, the bid proposal for
instance was one of them, this document, there was an emphasis on the
safety of motorists traveling on the highways in the immediate vicinity of
the rest area.
‘‘A. Yes.
‘‘Q. You’ve seen that, correct?
‘‘A. Yes, yes.
‘‘Q. And that was and continues to be a primary concern of Project
[Service], correct?
‘‘A. Absolutely.
***
‘‘Q. It is their responsibility if there is a consumption of alcohol on the
property to follow the action plan that’s set out for the employee, correct?
‘‘A. That’s correct.
‘‘Q. And there is an awareness that if there’s a failure to do that, that
there is a serious danger to the motorists passing on the highway, correct?
‘‘A. I would say there would be or could be.’’
On appeal, the plaintiffs also rely on the following trial testimony given
by Landino:
‘‘Q. And there was an awareness that if there was a failure to follow that
emergency action plan, if there was a consumption of alcohol, that there
is a serious danger to the motorists passing on the highway, true?
‘‘A. Yes.’’
***
‘‘Q. And you were aware, were you not, that if there was a failure to
follow this action plan in the presence of consumption of alcohol at the
Montville plaza as of March 9 of 2012, that there was a serious danger to
passing motorists on the highway, true?
‘‘A. There could be, yes.’’
***
‘‘Q. And isn’t it true, and you told me this in your deposition, and you
reiterated it when I was asking you questions, that you were aware, and
Project Service was aware, that . . . if they failed to control [the consump-
tion of alcohol and living at the service plaza], that there was a serious
danger or could be a serious danger to motorists on the passing highway;
isn’t that what you told me?
‘‘A. Yes, sir.’’
23
The Restatement (Third) points out that proof of reliance under § 324A
(c) of the Restatement (Second) may also satisfy the ‘‘increase the risk of
harm’’ requirement of subsection (a) of the Restatement (Second). See 2
Restatement (Third), supra, § 42, comment (f), p. 94 (increase in risk may
be established by proving that ‘‘the plaintiff or another relied on the actor’s
performing the undertaking in a nonnegligent manner and declined to pursue
an alternative means for protection’’); see also id., § 43, comment (e), pp.
115–16 (‘‘Reliance on an undertaking is another way in which the risk of
harm may be increased. An undertaking may create an appearance of safety
or make alternative arrangements appear unnecessary.’’). We address the
issue of reliance separately in the text of this opinion.
24
Alliance contended at oral argument before this court that, in the
absence of action by the legislature, the DOT could not lawfully impose a
contractual duty to protect third persons that is broader than the duty to
protect third persons existing under the common law. In light of our resolu-
tion of the case, we need not address Alliance’s contention.
25
Alliance contends that the plaintiffs were not aggrieved by the trial
court’s granting of summary judgment in favor of the defendants on the
public nuisance claims because the plaintiffs prevailed on their negligence
claims and, therefore, this court lacks jurisdiction to entertain the plaintiffs’
appeal. See, e.g., Jones v. Redding, 296 Conn. 352, 366, 995 A.2d 51 (2010)
(‘‘[A] litigant has no right to appeal a judgment in his or her favor merely
for the purpose of having the judgment based on a different legal ground
than that relied upon by the trial court, or to settle an abstract question of
law. . . . Additionally, [a]s a general proposition, a party who has fully
prevailed in the court below is not entitled to appeal from the judgment
solely for the purpose of attacking as erroneous the reasons of the court
or its conclusions of law.’’ [Citation omitted; internal quotation marks omit-
ted.]); see also Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 91, 971
A.2d 1 (2009) (‘‘[i]f a party is found to lack [aggrievement], the court is
without subject matter jurisdiction to determine the cause’’ [internal quota-
tion marks omitted]). At oral argument before this court, Alliance contended
that the plaintiffs would not be aggrieved by the trial court’s ruling on the
public nuisance claims even if the defendants prevailed in their appeals
challenging the trial court’s denial of their motions for a directed verdict
in their favor on the negligence claims. We disagree. Our reversal of the
judgment in the plaintiffs’ favor on the negligence claims and our remand
to the trial court with direction to render judgment for the defendants as
to those claims places the plaintiffs in the same position they would have
occupied if the trial court had ruled against them on those claims. If the
defendants had prevailed on all counts, the plaintiffs obviously would have
been entitled to appeal the adverse rulings on all counts, whether the rulings
had come at the same time or at different stages of the proceedings in the
trial court. It would make no sense to conclude that the trial court’s errone-
ous ruling on the negligence claims somehow bars the plaintiffs’ appeal
from the court’s earlier ruling against them on the public nuisance claims.