Ruiz v. Victory Properties, LLC ( 2015 )

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RUIZ v. VICTORY PROPERTIES, LLC—DISSENT
ZARELLA, J., with whom McDONALD, J., joins, dis-
senting. I disagree with the majority’s decision to affirm
the judgment of the Appellate Court, which reversed
the trial court’s judgment in favor of the defendant,
Victory Properties, LLC. In my view, the trial court
correctly concluded that the defendant, the property
owner in this case, did not have a legal duty to prevent
ten year old Luis Cruz from taking an eighteen pound
piece of cinder block (cinder block) from the backyard
of his apartment building, carrying the cinder block up
to the balcony of his third story unit, and dropping it
on the named plaintiff, Adriana Ruiz,1 also a tenant in the
building, because such conduct was not a reasonably
foreseeable consequence of the defendant’s leaving the
cinder block in the yard. Additionally, public policy
dictates that it would be imprudent to allow a jury to
hold the defendant responsible for Cruz’ conduct, as
the majority does today. Instead, I would reverse the
judgment of the Appellate Court and reinstate the trial
court’s judgment in favor of the defendant. Accordingly,
I respectfully dissent.
I
I begin by setting forth the governing legal principles.
‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury.’’ RK Constructors, Inc. v.
Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).
At issue in the present case is the first element, duty.
‘‘Duty is a legal conclusion about relationships between
individuals, made after the fact, and imperative to a
negligence cause of action. The nature of the duty, and
the specific persons to whom it is owed, are determined
by the circumstances surrounding the conduct of the
individual. . . . [T]he determination of whether a duty
exists between individuals is a question of law. . . .
Only if a duty is found to exist does the trier of fact go
on to determine whether the defendant has violated
that duty.’’ (Citations omitted; internal quotation marks
omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563,
571, 717 A.2d 215 (1998).
There is no question that the defendant in the present
case owed the plaintiff a duty of reasonable care. As
the majority accurately notes, all landlords owe their
tenants a duty to maintain the common areas of an
apartment building in a reasonably safe condition; see,
e.g., Giacalone v. Housing Authority, 306 Conn. 399,
407–408, 51 A.3d 352 (2012); and it is undisputed that
Cruz took the cinder block that injured the plaintiff
from a common area of the apartment building. The
precise question before this court is whether the scope
of the defendant’s duty of care included preventing
the plaintiff’s injuries. To determine the scope of the
defendant’s duty, a two step analysis is required. This
involves: ‘‘(1) a determination of whether an ordinary
person in the defendant’s position, knowing what the
defendant knew or should have known, would antici-
pate that harm of the general nature of that suffered
was likely to result, and (2) a determination, on the basis
of a public policy analysis, of whether the defendant’s
responsibility for its negligent conduct should extend
to the particular consequences or particular plaintiff in
the case.’’ (Internal quotation marks omitted.) Ryan
Transportation, Inc. v. M & G Associates, 266 Conn.
520, 525–26, 832 A.2d 1180 (2003).
The first step of the duty analysis requires an exami-
nation of whether the harm of the general nature suf-
fered by the plaintiff was a reasonably foreseeable
consequence of the alleged negligence. ‘‘[T]he analysis
of foreseeability logically cannot be extended so far
that the term ‘general harm’ incorporates any accident
involving [the defendant’s conduct] . . . with no con-
sideration given to the direct cause of the accident. It
is impractical, if not impossible, to separate the question
of duty from an analysis of the cause of the harm when
[as in the present case] the duty is asserted against one
who is not the direct cause of the harm.2 In defining
the limits of duty, we have recognized that ‘[w]hat is
relevant . . . is the . . . attenuation between [the
defendant’s] conduct, on the one hand, and the conse-
quences to and the identity of the plaintiff, on the other
hand.’ . . . Articulated another way, the attenuation
between the [plaintiff’s] harm and the [defendant’s] con-
duct is nothing more than a determination of whether
the harm was a reasonably foreseeable consequence of
the [defendant’s] conduct. It is a well established tenet
of our tort jurisprudence that ‘[d]ue care does not
require that one guard against eventualities which at
best are too remote to be reasonably foreseeable.’ ’’
(Citations omitted; footnotes altered.) Lodge v. Arett
Sales Corp., supra, 246 Conn. 574–75. ‘‘Liability may
not be imposed merely because it might have been
foreseeable that some accident could have occurred;
rather, liability attaches only for reasonably foreseeable
consequences.’’ (Emphasis in original.) Id., 577.
If the harm the plaintiff suffered was reasonably fore-
seeable, then the second step of the duty analysis
requires consideration of the following four public pol-
icy factors: ‘‘(1) the normal expectations of the partici-
pants in the activity under review; (2) the public policy
of encouraging participation in the activity, while
weighing the safety of the participants; (3) the avoid-
ance of increased litigation; and (4) the decisions of
other jurisdictions.’’ (Internal quotation marks omit-
ted.) Monk v. Temple George Associates, LLC, 273 Conn.
108, 118, 869 A.2d 179 (2005). When these policy consid-
erations weigh in favor of finding a duty, liability may
be imposed. This court has recognized ‘‘that duty is not
sacrosanct in itself, but is only an expression of the
sum total of those considerations of policy which lead
the law to say that the plaintiff is entitled to protection.’’
(Internal quotation marks omitted.) RK Constructors,
Inc. v. Fusco Corp., supra, 231 Conn. 386.
II
A
In applying the foregoing principles to the present
case, I begin with the first step of the duty analysis,
considering whether an ordinary person in the position
of the defendant would anticipate that harm of the
general nature suffered by the plaintiff was likely to
result from the defendant negligently allowing broken
cinder blocks to accumulate in the backyard of the
apartment building. I conclude that such harm was not
a reasonably foreseeable consequence of this alleged
negligence.
The question of foreseeability in cases such as the
present one, in which a third party, rather than the
defendant, directly caused the plaintiff’s injuries, turns
largely on the foreseeability of the third party’s conduct.
In assessing the foreseeability of a third party’s conduct,
courts focus on whether the defendant had, or should
have had, notice of the third party’s propensity to
engage in such conduct, or knowledge of past instances
of the same type of conduct in the same location. See,
e.g., Monk v. Temple George Associates, LLC, supra, 273
Conn. 115–16 (physical attack on plaintiff in nightclub
parking lot was foreseeable, in part, because serious
crimes previously occurred in same vicinity); Indian
Acres of Thornburg, Inc. v. Denion, 215 Va. 847, 851,
213 S.E.2d 797 (1975) (plaintiff’s injuries were caused
by child dropping piece of concrete from observation
tower on camping ground was not reasonably foresee-
able, in part, because property owner had no knowledge
that children previously were dropping rocks or other
objects from tower); cf. 1 Restatement (Third), Torts,
Liability for Physical and Emotional Harm § 19, com-
ment (d), p. 217 (2010) (identifying ‘‘likelihood of
improper conduct on the part of the plaintiff or a third
party’’ as one factor to be considered in determining
liability); 2 Restatement (Second), Torts § 302 B, illus-
tration (14), pp. 92–93 (1965) (defendant liable for dam-
age caused by children’s misuse of construction equip-
ment on Halloween night when defendant left equip-
ment unguarded in neighborhood in which children
‘‘habitually’’ engaged in mischief on Halloween night).
Another factor that courts consider in assessing fore-
seeability, specific to cases in which the defendant is
alleged to have negligently allowed a third party access
to an object that the third party uses and thereby injures
the plaintiff with, is the physical proximity between the
location where the defendant left the object and the
location where the third party ultimately injured the
plaintiff. As one court has stated, ‘‘[i]t is not the nature
of the object in the abstract that matters, it is the nature
of the object in the matrix of all the circumstances that
surround the event [in question that matters] . . . .’’
Beffa v. Terminal Railroad Assn., 208 Ill. App. 3d 7,
14, 566 N.E.2d 846 (1991). In general, it is more foresee-
able that a third party will misuse an object when a
defendant has left the object in a location in which the
third party is more likely to have access to it or be in
a position to misuse it. See Feichtner v. Cleveland, 95
Ohio App. 3d 388, 396, 642 N.E.2d 657 (third party’s
dropping of construction debris from overpass bridge
onto vehicle below was not foreseeable, in part, because
construction companies left debris ‘‘at least twenty-five
to thirty yards away from the bridge’’), appeal denied, 70
Ohio St. 3d 1476, 640 N.E.2d 848 (1994); 1 Restatement
(Third), supra, § 19, illustration (3), pp. 218–19 (father
may be found liable for ten year old son’s shooting of
another child when father placed loaded gun on coffee
table in family room); cf. Neal v. Shiels, Inc., 166 Conn.
3, 13, 347 A.2d 102 (1974) (child’s injuries from being
struck by car were foreseeable when defendant ice
cream truck vendor deliberately attracted children to
street by ringing bells).
In the present case, the defendant’s alleged negli-
gence and the direct cause of the plaintiff’s injuries,
namely, Cruz’ dropping of the cinder block from a third
story balcony, were simply too attenuated for the harm
the plaintiff suffered to have been reasonably foresee-
able. The plaintiff claims that the defendant negligently
allowed broken cinder blocks and other debris to accu-
mulate in the backyard of the apartment building.
Between the time of the defendant’s inaction and the
plaintiff’s injuries, Cruz removed the cinder block in
question from the common area that the defendant was
responsible for maintaining, carried it to the third story
of the building, brought it inside his family’s private
residence, and intentionally dropped it from the balcony
into the backyard in which the plaintiff, other children,
and some of their parents were standing. Although the
defendant’s inaction was a ‘‘but for’’ cause of the plain-
tiff’s injuries, the link between the defendant’s inaction
and the plaintiff’s injuries was too attenuated to con-
clude that the plaintiff’s injuries were a reasonably fore-
seeable consequence of the defendant’s alleged negli-
gence. The defendant did not leave the cinder block in
a location from which it easily could be thrown from
a significant height, such as a shared rooftop deck, the
hallway outside Cruz’ third floor apartment, or even
the balcony from which Cruz dropped the cinder block.
See Feichtner v. Cleveland, supra, 95 Ohio App. 3d 396.
It was Cruz, not the defendant, who brought the cinder
block from the backyard to the third floor balcony
before dropping it below. Thus, the possibility that the
plaintiff would suffer harm of the general nature that
she did was too remote to expect a reasonable person
in the defendant’s position to anticipate such harm.
What further makes the plaintiff’s injuries not reason-
ably foreseeable is the intentional nature of Cruz’ con-
duct. While Cruz did not intend to injure the plaintiff,
Cruz’ conduct was intentional insofar as he intended
to drop the cinder block from the third story balcony
and was aware that he was dropping it in the general
vicinity of the plaintiff. This type of intentional conduct
is of the same nature as intentional, tortious acts and
is unforeseeable for the same reason that an ordinary
person would not anticipate that even a child would
knowingly endanger another person in this manner.
This is reflected in § 442 B of the Restatement (Second)
of Torts, relating to intervening causes, in which one
illustration makes clear that a property owner is not
liable for a child’s intentional conduct, such as Cruz’
actions in the present case: ‘‘The employees of the A
Theatre Company negligently leave a chair on the railing
of the balcony, creating the risk that it may accidentally
or negligently be knocked off the railing in the dark,
and will injure some person below. Without any reason
whatever on the part of the Theatre Company to antici-
pate such conduct, B, a boy attending the theatre, delib-
erately throws the chair off of the railing, and it falls
upon C and injures him. A Theatre is not liable to C.’’
2 Restatement (Second), supra, § 442 B, illustration (9),
pp. 471–72. This illustration does not provide that the
‘‘boy’’ intended to harm C, who was injured by the chair,
and, yet, it notes that the defendant is not liable for the
boy’s conduct. Id. As this illustration demonstrates, the
scope of a property owner’s duty of reasonable care
does not encompass preventing this type of intentional
third-party conduct.
Finally, the harm that the plaintiff suffered was not
reasonably foreseeable because there is no evidence in
the record that the defendant knew or should have
known that either Cruz or other tenants had a propen-
sity for throwing objects from their balconies.
According to the plaintiff’s allegations, the defendant
was aware that broken cinder blocks and other debris
had accumulated in the backyard of the apartment
building and that children regularly played in this area.
Thus, as the trial court and dissenting judge in the
Appellate Court both noted, it was reasonably foresee-
able that children would injure themselves by tripping
over the cinder blocks in the backyard, or even by
throwing pieces of them at one another, as a conse-
quence of the defendant allowing the debris to accumu-
late in that area. See Ruiz v. Victory Properties, LLC,
135 Conn. App. 119, 138, 43 A.2d 186 (2012) (Alvord,
J., dissenting). There was no evidence, however, that
Cruz or any other tenant in the apartment building had
previously thrown an object from an upper story of the
apartment building. Without notice of past instances of
such conduct, in combination with the other reasons
that I discussed previously, I conclude that an ordinary
person in the defendant’s position would not anticipate
that harm of the general nature suffered by the plaintiff
was likely to result from the defendant’s inaction.
B
I turn next to the second step of the duty analysis,
which requires consideration of four factors to deter-
mine whether public policy supports allowing an exten-
sion of the defendant’s legal duty to prevent the
plaintiff’s injuries. I undertake the second step of the
duty analysis despite concluding that the harm suffered
by the plaintiff was not reasonably foreseeable because,
even if the harm that the plaintiff suffered was reason-
ably foreseeable, I would decide on public policy
grounds that the defendant should not be held responsi-
ble for injuries that Cruz caused the plaintiff to suffer
when he dropped the cinder block on her.
As I previously noted, the four factors relevant to the
public policy inquiry are: ‘‘(1) the normal expectations
of the participants in the activity under review; (2) the
public policy of encouraging participation in the activ-
ity, while weighing the safety of the participants; (3)
the avoidance of increased litigation; and (4) the deci-
sions of other jurisdictions.’’ (Internal quotation marks
omitted.) Monk v. Temple George Associates, LLC,
supra, 273 Conn. 118. Assuming that the activity in ques-
tion is children playing in the outdoor common areas
of apartment buildings, I firmly believe that none of the
four public policy factors weighs in favor of imposing
a duty on the defendant in these circumstances, and
that the second, third, and fourth factors weigh against
imposing such a duty.
The first factor, the normal expectations of children
and their parents when children play in outdoor com-
mon areas, does not support imposing a duty on the
defendant. The expectations of children and their par-
ents regarding the outdoor common areas of apartment
buildings are actually quite well defined, given the abun-
dance of statutory and common law relating to premises
liability and children. See, e.g., General Statutes § 47a-
7 (a) (3) (requiring landlords to ‘‘keep all common areas
of the premises in a clean and safe condition’’); Noebel
v. Housing Authority, 146 Conn. 197, 200, 148 A.2d
766 (1959) (noting that landlords have duty to exercise
reasonable care in maintaining premises). Landlords
undoubtedly owe their tenants a duty to maintain com-
mon areas in a reasonably safe condition, and that is
what their tenants expect. See Giacalone v. Housing
Authority, supra, 306 Conn. 407–408. This duty, how-
ever, does not require landlords to secure or remove
from an apartment building’s outdoor common areas
all objects that potentially could be dangerous when
brought inside the apartment and dropped from an
upper story. Nor do tenants expect landlords to do so,
as demonstrated by a photograph that was introduced
into evidence in the present case and shows that the
tenants in the plaintiff’s apartment building had used
one of the cinder blocks in the backyard to stabilize a
basketball hoop and stand (basketball hoop). Surely,
the tenants could not have expected the defendant to
remove all of the cinder blocks from the backyard if
they were using one of the cinder blocks to enable their
children to play basketball in the backyard. As our law
reflects, tenants expect landlords to maintain common
areas in a reasonably safe condition. Tenants do not
expect landlords to eliminate all possibility that one
tenant will injure another with an inanimate object from
a common area.
The second factor, the public policy of encouraging
children to play safely in outdoor common areas of
apartment buildings, also weighs against imposing a
duty on the defendant. We unquestionably want to
encourage children to play with one another for a vari-
ety of reasons, including the physical benefit they
receive from exercise as well as the social benefit
gained from interacting with their peers. Imposing a
duty on the defendant in the present case, however, will
not increase participation in this obviously desirable
activity. Rather, imposing a duty on the defendant to
remove the cinder blocks and debris from the backyard
to protect against the type of harm that the plaintiff
suffered would create a concomitant duty to remove
all comparable objects from the backyard, such as deco-
rative rocks, bird baths, lawn ornaments, lawn furni-
ture, sprinklers, garden tools, stones from a stone wall,
and countless other items. As the trial court observed,
‘‘[i]f thrown off a balcony, practically anything can con-
stitute a dangerous missile.’’
Requiring landlords to strip outdoor common areas
bare would not encourage children to play outdoors
because it would remove many objects that facilitate
outdoor play but that can be dangerous when misused.
For instance, Cruz could just as easily have picked up
the cinder block that was securing the basketball hoop
and dropped it from the balcony of his apartment unit,
instead of the cinder block that he did, and, according
to the majority’s theory, the defendant would have been
equally liable. If the defendant had been required to
remove the cinder block that was stabilizing the basket-
ball hoop, the children in that apartment building would
have had one less activity available to them, or at least
had an activity that was less safe because the basketball
hoop likely would have been unstable in the absence
of that cinder block. Thus, imposing a duty on the defen-
dant in this case ultimately could decrease children’s
participation in playing in the outdoor common areas
of apartment buildings.
Moreover, requiring landlords to secure or remove
from outdoor common areas every object that could
be dangerous when thrown from the third story of a
building also would carry significant economic costs,
which landlords would almost surely pass on to their
tenants in the form of increased rent. See, e.g., Saelzler
v. Advanced Group 400, 25 Cal. 4th 763, 777, 23 P.3d
1143, 107 Cal. Rptr. 2d 617 (2001) (recognizing that costs
of premises liability are eventually borne by renters);
Miller v. Whitworth, 193 W. Va. 262, 268, 455 S.E.2d
821 (1995) (same); see also 1 Restatement (Third),
supra, § 3, comment (e), p. 31 (noting that financial
burden of risk prevention is generally passed on from
actors to their customers). Ultimately, increased rental
costs could price certain low income families out of
the market, depriving them of housing that includes
outdoor common areas in which children can play.3
Landlords also might incur higher insurance premiums
due to their increased exposure to liability, the costs
of which likely would be passed on to tenants. Some
property owners might eliminate outdoor play areas
altogether, or limit their tenants’ access to them, rather
than expose themselves to liability for tenants’ misuse
of objects in the common area. ‘‘We frequently have
concluded that when the social costs associated with
liability are too high to justify its imposition, no duty
will be found’’; Lodge v. Arett Sales Corp., supra, 246
Conn. 584; and that principle clearly applies in the pres-
ent case.
The third factor, the avoidance of increased litigation,
is the factor that most heavily weighs against imposing
a duty on the defendant. As the defendant claimed in
the Appellate Court, imposing a duty on the defendant in
these circumstances is tantamount to making landlords
‘‘strictly liable for the actions of the children of their
tenants while they are playing in common areas of the
property.’’ Ruiz v. Victory Properties, LLC, supra, 135
Conn. App. 127. The logical consequence of expanding
premises liability as the court does today is an increase
in litigation, as plaintiffs will seek redress for injuries
caused by children misusing a potentially limitless num-
ber of objects from the common areas of apartment
buildings. Not only would imposing a duty on the defen-
dant make landlords strictly liable for injuries caused
by children in common areas, but it would also make
homeowners potentially liable for injuries that neigh-
boring children cause by misusing otherwise harmless
objects on their property. I believe that the majority
overestimates property owners’ ability to immediately
conform to the duty that it imposes today, given the
potentially unlimited number of objects that it requires
them to ensure are beyond the reach of a curious child.
Indeed, imposing a duty on the defendant in this case
will significantly increase litigation between tenants,
landlords, and homeowners in Connecticut.
Finally, the fourth factor, the decisions of other juris-
dictions, also weighs heavily against imposing a duty
on the defendant. The majority concludes that the deci-
sions of other jurisdictions are split on this issue with-
out citing a single factually similar case in which a court
has decided that a landlord had a duty to protect a child
from a third party such as Cruz. In the most factually
similar case that I have discovered, the court decided
that preventing such harm was not within the scope of
the landlord’s duty.
In Indian Acres of Thornburg, Inc. v. Denion, supra,
215 Va. 847 (Indian Acres), the Supreme Court of Vir-
ginia concluded that an owner of a camping ground
did not owe the plaintiff a duty to remove rocks and
construction debris to protect her from injuries that
she sustained when a twelve year old child dropped a
piece of concrete on her from an observation tower on
the camping ground. See id., 847–48, 851. In Indian
Acres, the plaintiff’s family owned a lot on the defen-
dant’s property. See id., 848. In the common area of the
camping ground was an observation tower, and, at the
base of the tower, there were rocks and construction
debris. See id. The plaintiff was injured when she
walked beneath the tower and was struck by a piece
of concrete that the twelve year old child dropped from
the top of the tower while attempting to strike a rail
or board near the tower’s base. Id. On the basis of these
facts, the Supreme Court of Virginia concluded that
the defendant was not liable for the plaintiff’s injuries
because the twelve year old child’s conduct was not
reasonably foreseeable. See id., 850–51. The similarities
between this case and the present case are stark, from
the fact that the plaintiff in Indian Acres was injured
in a common area of the property to the fact that the
twelve year old child acted intentionally but without
intent to harm the plaintiff.4 The court’s conclusion
suggests that this court, too, should not expand the
scope of the defendant’s duty of reasonable care.
Other cases have addressed a property owner’s legal
duty in situations in which children caused injuries
by misusing an object in a dangerous manner in the
common area itself. In those cases, the authority is split.
For example, in Englund v. Vital, 838 N.W.2d 621 (S.D.
2013), the South Dakota Supreme Court declined to
impose liability on a landlord for injuries that a nine
year old tenant (plaintiff) sustained when she was
struck with a rock thrown by a twelve year old tenant
(child) in the backyard. Id., 630. The rock came from
a pile of landscaping materials that the landlord had
expressly agreed to remove before the plaintiff was
injured. Id., 625. Moreover, the court assumed, for pur-
poses of its analysis, that the landlord knew that the
child who threw the rock previously had thrown rocks
in the backyard area. Id., 630. Nevertheless, the court
determined that the landlord did not owe the plaintiff
a duty to protect her from the child who threw the
rock because the child’s conduct was not sufficiently
foreseeable. Id. Although the court also decided that
the landlord was not liable in part because he had ceded
full control over the property on which the rock was
thrown, and therefore owed no duty to maintain it as
a common area; id.; Englund is analogous to our case
insofar as Cruz threw the cinder block from his family’s
private residence, an area that the defendant was not
responsible for maintaining. Englund is also instructive
because the court separately decided that the landlord
did not owe the plaintiff a duty to protect her from the
child’s conduct.5 Id. Additionally, a concurring justice
in Englund decided strictly on policy grounds that the
landlord owed no duty to protect the plaintiff. See id.,
632–34 (Konenkamp, J., concurring in result). Other
jurisdictions also have decided that property owners
do not have a legal duty to protect children from injuring
themselves, or being injured by a third party, with
objects in common areas. See, e.g., Cole v. Housing
Authority, 68 Ill. App. 3d 66, 71–72, 385 N.E.2d 382
(1979) (defendants had no duty to prevent injuries to
plaintiff resulting from another child’s throwing or
swinging of metal stake that defendant contractor had
left on ground); Reeves v. Springfield, 5 Ill. App. 3d
880, 882–83, 284 N.E.2d 373 (1972) (municipality had
no duty to protect child from being injured by another
child who threw discarded license plate); Foss v. Kin-
cade, 766 N.W.2d 317, 322–23 (Minn. 2009) (homeown-
ers had no duty to prevent child from injuring himself
after he climbed on and knocked over unsecured
bookshelf).
In other jurisdictions, courts have found that the land-
lord had such a duty. See Qureshi v. Ahmed, 394 Ill.
App. 3d 883, 892–93, 916 N.E.2d 1153 (2009) (court could
not conclude, as matter of law, that homeowners did
not owe child duty to protect her from injuries caused
by treadmill); Grant v. South Roxana Dad’s Club, 381
Ill. App. 3d 665, 673, 886 N.E.2d 543 (2008) (operator
of playground owed child duty of care to remove pile
of dirt on which child hurt himself); Mayer ex rel. Mayer
v. Housing Authority, 84 N.J. Super. 411, 423–24, 202
A.2d 439 (App. Div. 1964) (defendant owed duty of care
to child who was injured by rock that was thrown by
another child in recreational area in which children
regularly threw rocks), aff’d, 44 N.J. 567, 210 A.2d
617 (1965).
The majority notes that this lack of uniformity is
likely due to the fact that what constitutes a reasonably
foreseeable injury under the circumstances is ‘‘a highly
fact-sensitive issue,’’ susceptible to the slightest factual
variations. Footnote 10 of the majority opinion. But
the foregoing cases, which involve children’s misuse of
objects within common areas, are not factually similar
to the present case and, in any event, do not support
the majority’s decision to expand the defendant’s scope
of liability, because the cases are split. The case that
is most analogous to the present case, however, Indian
Acres, suggests that the question of the defendant’s duty
is not one for the jury and that the defendant should
prevail as a matter of law. See Indian Acres of Thorn-
burg, Inc. v. Denion, supra, 215 Va. 851.
Collectively, the four policy factors militate against
imposing a duty on the defendant in this case. Tort law
is grounded in the fundamental principle that an actor
should be required to take reasonable precautions
against risks only when the benefit of the risk reducing
precaution outweighs the burden of taking the precau-
tion. See United States v. Carroll Towing Co., 159 F.2d
169, 173 (2d Cir. 1947); Lodge v. Arett Sales Corp., supra,
246 Conn. 579; 1 Restatement (Third), supra, § 3, com-
ment (e), pp. 30–31. The costs involved with requiring
every landlord in Connecticut to secure or remove every
object from the common areas of apartment buildings
that could conceivably be thrown from a window, bal-
cony, or other private or off-site location outweigh the
benefits that would result from taking that precaution.
Thus, I would conclude, as a matter of law, that pre-
venting Cruz from injuring the plaintiff was outside of
the scope of the defendant’s duty of reasonable care.6
III
I now address the central flaws in the majority’s rea-
soning. The majority contends that harm of the general
nature that the plaintiff suffered was a reasonably fore-
seeable consequence of the defendant’s alleged negli-
gence in leaving the cinder block in the backyard. The
crux of the majority’s contention is that the foreseeabil-
ity inquiry must be framed broadly and should not focus
on the specific manner in which the plaintiff was
injured. The majority relies on the principle that ‘‘[s]o
long as harm of the general nature as that which
occurred is foreseeable there is a basis for liability even
though the manner in which the accident happens is
unusual, bizarre or unforeseeable.’’ Pisel v. Stamford
Hospital, 180 Conn. 314, 333, 430 A.2d 1 (1980).
Applying this principle, the majority focuses on the
types of injuries that cinder blocks could cause, and
concludes that, because the plaintiff’s injuries fall along
that ‘‘continuum of harm,’’ the harm of the general
nature that the plaintiff suffered was reasonably fore-
seeable. I do not believe this is the correct approach.
The majority unduly broadens the foreseeability
inquiry to a level of generality at which every conceiv-
able accident involving the cinder block that Cruz used
to injure the plaintiff would be deemed foreseeable.
While it is true that the foreseeability inquiry should
not narrowly focus on the manner in which the plaintiff
was injured, it is incorrect to suggest that the circum-
stances giving rise to the plaintiff’s injuries are never
relevant. To the contrary, the majority concedes that
determining the foreseeability of a plaintiff’s injuries
involves a fact-sensitive inquiry; see footnote 10 of the
majority opinion; and a survey of our case law reveals
that we often have considered the manner in which a
plaintiff’s injuries occurred to be highly relevant to the
foreseeability inquiry.7 See, e.g., Lodge v. Arett Sales
Corp., supra, 246 Conn. 577 (considering foreseeability
of brake failure of negligently maintained fire engine
that caused plaintiffs’ injuries or deaths in relation to
defendants’ transmission of false fire alarm); Doe v.
Manheimer, 212 Conn. 748, 762–63, 563 A.2d 699 (1989)
(assessing foreseeability of sexual assault of plaintiff
by considering past occurrences of similar criminal con-
duct in same location), overruled in part on other
grounds by Stewart v. Federated Dept. Stores, Inc., 234
Conn. 597, 662 A.2d 753 (1995); Neal v. Shiels, Inc.,
supra, 166 Conn. 13 (considering foreseeability of chil-
dren being struck by cars in context of defendant selling
ice cream from truck parked on public streets); Merhi v.
Becker, 164 Conn. 516, 522, 325 A.2d 270 (1973) (defining
harm of general nature as ‘‘harm to patrons from inade-
quately deterred raucous, violent conduct’’); Smith v.
Leuthner, 156 Conn. 422, 426, 242 A.2d 728 (1968)
(defining harm of general nature as ‘‘the theft of [a] car
and injury to person or property from the operation of
the car by the thief’’).
Indeed, we recognized in Lodge that, in cases in which
a third party, rather than the defendant, is the direct
cause of the harm to the plaintiff, one cannot consider
the scope of the defendant’s duty without also consider-
ing the direct cause of the harm. As the court in Lodge
stated, ‘‘[i]t is impractical, if not impossible, to separate
the question of duty from an analysis of the cause of
the harm when the duty is asserted against one who is
not the direct cause of the harm.’’ Lodge v. Arett Sales
Corp., supra, 246 Conn. 574. Our analysis and holding
in Lodge demonstrate that, in cases such as the present
one, we cannot properly determine the scope of the
defendant’s duty without considering all of the circum-
stances in which the plaintiff was injured, and specifi-
cally the defendant’s relation to the third party tort-
feasor. The majority’s refusal to consider the circum-
stances that precipitated the plaintiff’s injuries in the
present case is therefore misguided.
In concluding that the harm of the general nature
that the plaintiff suffered should be defined without
considering the manner in which it occurred, the major-
ity also relies on § 29 of the Restatement (Third) of
Torts. Section 29, however, supports the view that the
manner in which a plaintiff is injured is relevant to the
foreseeability analysis, as comment (o) to that section
provides: ‘‘Some aspects of the manner in which the
harm occurs are relevant to a determination of the
scope of an actor’s liability. . . . [T]he manner of harm
can be of critical importance in determining whether
the harm is within the scope of liability . . . .’’ (Empha-
sis in original.) 1 Restatement (Third), supra, § 29, com-
ment (o), pp. 509–10. Thus, the Restatement (Third) of
Torts instructs that, in determining the foreseeability
of the harm of the general nature that the plaintiff suf-
fered, it is not only appropriate but necessary to con-
sider all of the circumstances giving rise to the plaintiff’s
injuries, including the manner in which she was injured.
And, logically, this makes sense. If the manner in which
the plaintiff was injured was irrelevant, as the majority
concludes, then the defendant could have been held
liable even if Cruz had brought the cinder block to his
third story unit and left it there for three days before
deciding to throw it off the balcony. Likewise, according
to the majority, the defendant could have been held
liable if Cruz had taken the cinder block from the back-
yard, carried it to a different apartment building, and
injured someone there. Such absurd results demon-
strate that the manner of the harm is, as the Restatement
(Third) of Torts indicates, crucial to determining the
foreseeability of a plaintiff’s injury.
Another misstep in the majority’s analysis is its mis-
taken conclusion that the cinder block that Cruz used
to injure the plaintiff was an inherently dangerous
object. The majority asserts that the cinder blocks and
debris were dangerous objects because children could
have tripped over them or even thrown pieces of them
at one another, and that, even if they were inherently
harmless, one can nevertheless be held liable for injur-
ies resulting therefrom.
The majority mischaracterizes the true nature of the
cinder block in question and fails to grasp its signifi-
cance. The Restatement (Third) of Torts explains that
the nature of an object is relevant insofar as the greater
the danger an object presents, the greater precautions
an ordinarily prudent person would take to minimize
the risk of harm the object poses. See id., § 3, comment
(e), p. 31. For example, a parent who leaves a loaded
gun on a coffee table in his family room can be held
liable if his child were to use the gun to shoot another
child because it would be obvious to a prudent person
that the lethal nature of the object in question, the gun,
demands greater precautions when it is left unguarded
in an area to which children have access. See id., § 19,
illustration (3), pp. 218–19. There is no doubt that a
broken cinder block is not as inherently dangerous as
a loaded gun, explosives, broken glass, poisonous sub-
stances, toxic waste, or exposed electrical wires. See
id., § 3, comment (e), p. 31 (listing dangerous objects
or activities). The majority mistakenly equates an object
that can be dangerous when misused with one that is
inherently dangerous, such as the foregoing items. But
for Cruz’ decision to transport the cinder block from
the backyard and to drop it off a third floor balcony,
the cinder block in question would have been no more
harmful than a decorative lawn ornament or chair in
the common area. The fact that the cinder block was
an inherently harmless object made it less foreseeable
that the plaintiff would suffer the harm that she did.
Finally, the majority contends that a jury reasonably
could find that the defendant owed the plaintiff a duty
to protect her from Cruz because this case involved
children, and the presence of children sometimes
requires actors to take additional precautions. See foot-
note 6 and accompanying text of the majority opinion.
The majority expressly relies on § 339 of the Restate-
ment (Second) of Torts, which pertains to a landowner’s
liability for artificial conditions that are highly danger-
ous to trespassing children. 2 Restatement (Second),
supra, § 339, p. 197; see footnote 6 of the majority opin-
ion. That principle, however, on its face, does not apply
to the present case. First, the doctrine does not apply
because neither the plaintiff nor Cruz was trespassing.
Rather, they were both tenants properly using the back-
yard of their apartment building and, in Cruz’ case, the
balcony of his third story unit. Second, the cinder block
lying on the ground in the backyard was not a condition
that the defendant should have realized involved ‘‘an
unreasonable risk of death or serious bodily harm’’ to
the children playing there, as § 339 (b) requires. 2
Restatement (Second), supra, § 339 (b), p. 197; see also
Dzenutis v. Dzenutis, 200 Conn. 290, 304–306, 512 A.2d
130 (1986) (applying § 339 in case in which child was
severely burned when bucket of hot tar spilled on him).
Finally, § 339 is inapplicable to the present case because
Cruz realized the risk involved in dropping an eighteen
pound cinder block from a third story balcony into a
backyard where other children were playing, which,
under § 339, bars the landowner’s liability. See 2
Restatement (Second), supra, § 339 (c), p. 197. It is
clear that Cruz understood the risk that he was taking
when he dropped the cinder block from the third story
balcony because, immediately before dropping it, he
yelled to the plaintiff, ‘‘[m]ove back, because I’m going
to throw the rock . . . .’’ Cruz understood the risk that
he was taking, and the defendant should not be held
liable for Cruz’ decision to disregard that risk.
For all of the foregoing reasons, I would conclude,
as a matter of law, that protecting the plaintiff from
Cruz was outside the scope of the defendant’s legal
duty. The defendant should not be exposed to liability
for Cruz’ conduct because the harm that the plaintiff
suffered was not reasonably foreseeable, and, further-
more, public policy dictates that it would be unwise to
expand a landlord’s duty of reasonable care under the
facts of this case. I therefore would reverse the judg-
ment of the Appellate Court and reinstate the judgment
of the trial court in favor of the defendant. Accordingly,
I respectfully dissent.
1
Adriana Ruiz’ mother, Olga Rivera, also is a plaintiff in the present case.
For ease of reference, we refer to Adriana Ruiz as the plaintiff throughout
this opinion.
2
We have long recognized that the elements of duty and proximate causa-
tion are, at least in some cases, closely related. See, e.g., RK Constructors,
Inc. v. Fusco Corp., supra, 231 Conn. 387–88 n.4.
3
The trial court reached this same conclusion, stating: ‘‘Such an imposition
[of liability] would create substantial economic and social costs. . . . To
create liability for landlords in this situation would likely discourage land-
lords from renting apartments to families with young children. It would
surely drive up the economic costs associated with maintaining and insuring
rental properties, without a concomitant benefit of safeguarding against
conditions and hazards that are much more prevalent than the one here.
Recognizing such a duty, rather than contributing to the welfare of the public,
is more likely to create a new burden on families looking for affordable rental
housing. Though imposing liability on the defendant would surely be a
benefit to the plaintiff and her family, the overall economic and societal
costs militate against such an imposition in like situations.’’
4
The majority’s attempt to distinguish Indian Acres from the present case
is unavailing. See footnote 11 of the majority opinion. Although it is true
that the piece of concrete that the twelve year old child used in Indian
Acres came from an active construction site, that was not the determinative
fact on which the court’s decision rested. Rather, the court’s primary reasons
for deciding that the property owner was not responsible for the plaintiff’s
injuries were that they ‘‘flowed directly from the independent nonnegligent
act of [the twelve year old child]’’; Indian Acres of Thornburg, Inc. v.
Denion, supra, 215 Va. 850; and the fact that ‘‘[the defendant] had no knowl-
edge whatever of rocks being tossed from the tower by children . . . .’’
Id., 851. Thus, the facts that were determinative in Indian Acres are remark-
able in how closely they parallel those of the present case. The defendant
in the present case had no notice of children dropping rocks or cinder
blocks from heights, and Cruz dropped the cinder block from a private
balcony rather than an observation tower.
More telling, the majority does not offer a case from another jurisdiction
as factually similar as Indian Acres is to the present case, and, yet, it
concludes that the decisions of other jurisdictions support expanding the
scope of the defendant’s duty.
5
The majority, in attempting to distinguish Englund from the present
case, again, misses the point. See footnote 11 of the majority opinion. The
court’s decision in Englund that the landlord did not have a duty to protect
the plaintiff from the child who threw the rock was grounded in the fact that,
although the landlord may have had notice that the child had a propensity to
throw rocks, he did not have notice that the child had previously thrown
rocks at people. Englund v. Vital, supra, 838 N.W.2d 630. The fact that the
landlord in Englund had ceded control over the area of the property in
question does not distinguish it from the present case because Cruz dropped
the cinder block that injured the plaintiff from a private residence, an area
over which the defendant had no control. Moreover, the South Dakota
Supreme Court decided the question of control over the common area
separately from the issue of foreseeability. See id.
6
As I previously noted, the question of the limits of the defendant’s legal
duty is closely related to the question of whether the defendant proximately
caused the plaintiff’s injuries. See footnote 2 of this opinion. Having decided
that the defendant did not owe the plaintiff a duty to protect her from Cruz,
I also would conclude that the defendant’s conduct or inaction was not a
proximate cause of the plaintiff’s injuries.
7
Even Pisel v. Stamford Hospital, supra, 180 Conn. 314, the case on which
the majority relies for the proposition that the bizarre manner in which an
injury occurs need not be foreseeable, demonstrates that the foreseeability
of the specific conduct by the plaintiff or a third party can be critical to
determining the foreseeability of the harm of the general nature of that
suffered. In Pisel, a psychiatric patient killed herself while she was alone
in a locked hospital room by wedging her head between the mattress of
her bed and the steel bed frame. Id., 316–17. The hospital staff failed to
observe the patient for the preceding four hours, even though the patient
had been in a highly agitated and psychotic state for more than one week,
had been walking into walls, and had told a staff member that she was
hearing voices telling her to hurt herself. Id. This court decided, in the
context of proximate causation, that a jury reasonably could find that the
patient’s death was a reasonably foreseeable consequence of the defendants’
negligent failure to care for and watch her. See id., 331–33. Implicit in that
decision is that it was reasonably foreseeable that the patient would harm
herself because the defendants knew that the patient previously had engaged
in the same conduct by attempting to harm herself and had intended to
harm herself again. As I previously discussed, the plaintiff’s injuries in the
present case were not reasonably foreseeable, in part, because the defendant
had no notice of past instances involving tenants’ intentional throwing of
objects off their balconies.