Cannizzaro v. Marinyak ( 2014 )

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JANINE CANNIZZARO v. STEPHAN
MARINYAK ET AL.
(SC 19101)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued February 18—officially released July 1, 2014
Kevin S. Coyne, with whom, on the brief, was Joseph
M. Walsh, for the appellant (plaintiff).
Joshua A. Yahwak, with whom, on the brief, was
Joseph M. Musco, for the appellee (defendant Diane
Jennings Mayo).
Opinion
EVELEIGH, J. The plaintiff, Janine Cannizzaro,
appeals from the judgment of the Appellate Court
affirming the decision of the trial court rendering sum-
mary judgment in favor of the defendant Diane Jennings
Mayo relating to an automobile accident with the named
defendant, Stephan Marinyak.1 At the time of the acci-
dent, Marinyak was an employee of the defendant, a
homeowner in Redding. On appeal, the plaintiff asserts
that the Appellate Court improperly affirmed the deci-
sion of the trial court rendering summary judgment in
favor of the defendant because it improperly concluded
that the defendant did not owe the plaintiff a duty of
care. We affirm the judgment of the Appellate Court,
albeit for different reasons.
The opinion of the Appellate Court sets forth the
following facts and procedural history that are relevant
to this appeal. ‘‘During the afternoon of January 29,
2007, while driving northbound on Route 15 in Fairfield
County, Marinyak attempted to maneuver his vehicle
to pass the plaintiff’s vehicle. He collided with the plain-
tiff’s vehicle causing the plaintiff catastrophic injuries,
including the amputation of her leg and a traumatic
brain injury. Investigation by the state police deter-
mined that Marinyak was under the influence of alcohol
at the time of the accident and had a blood alcohol level
of 0.19 percent. Marinyak worked for the defendant as
a plasterer and painter during the renovation of her
home. Shortly before the accident, Marinyak had left
the work site at the defendant’s home. . . . [O]n the
day of the accident, Marinyak had consumed alcohol [at
the defendant’s property] before leaving the premises in
his car.’’ Cannizzaro v. Marinyak, 139 Conn. App. 722,
725, 57 A.3d 830 (2012).
‘‘On February 19, 2008, the plaintiff filed a six count
amended complaint against [inter alios] Marinyak . . .
and the defendant. Counts four, five, and six are against
the defendant, alleging negligent supervision, negligent
service of alcohol and reckless service of alcohol, based
on claims that Marinyak and other employees of the
defendant regularly drank alcohol while working at the
defendant’s home, including on the day of the accident.
The defendant moved for summary judgment on the
ground that she owed no duty of care to the plaintiff.
The trial court granted the motion and rendered judg-
ment for the defendant on counts four, five and six of
the complaint.’’ Id., 723–24.
The plaintiff subsequently appealed to the Appellate
Court, claiming that the trial court ‘‘improperly granted
the motion for summary judgment because there was
a question of fact affecting the legal determination of
whether the defendant owed a duty of care to the plain-
tiff. Specifically, the plaintiff claims that, because the
defendant was negligent in failing to supervise Mariny-
ak’s consumption of alcohol while working on her prem-
ises, the defendant owed her a duty of care that was
breached when Marinyak, driving while intoxicated,
collided with the plaintiff, causing her injuries. In this
connection, the plaintiff claims that there was a ques-
tion of fact disclosed by the evidence submitted in oppo-
sition to the motion for summary judgment regarding
Marinyak’s consumption of alcohol on the defendant’s
premises and the defendant’s constructive knowledge
thereof.’’ (Footnote omitted.) Id., 724–25.
The Appellate Court concluded that, as a matter of
law, the defendant did not owe a duty of care to the
plaintiff because the accident did not occur on the
defendant’s premises or while using the defendant’s
chattel. Id., 728–32. We granted the plaintiff’s petition
for certification to appeal limited to the following issue:
‘‘Did the Appellate Court properly affirm the trial court’s
summary judgment in favor of the defendant . . . ?’’
Cannizzaro v. Marinyak, 308 Conn. 902, 903, 60 A.3d
286 (2013).
We begin by setting forth the applicable standard of
review. ‘‘The standards governing our review of a trial
court’s decision to grant a motion for summary judg-
ment are well established. Practice Book [§ 17-49] pro-
vides that summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . 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 applicable principles
of substantive law, entitle him to a judgment as a matter
of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. . . . A
material fact . . . [is] a fact which will make a differ-
ence in the result of the case. . . . Finally, the scope
of our review of the trial court’s decision to grant the
plaintiff’s motion for summary judgment is plenary.’’
(Internal quotation marks omitted.) DiPietro v. Farm-
ington Sports Arena, LLC, 306 Conn. 107, 115–16, 49
A.3d 951 (2012).
On appeal, the plaintiff claims that the Appellate
Court improperly affirmed the trial court’s conclusion
that the defendant did not owe the plaintiff any duty on
the facts of this case. Specifically, the plaintiff contends
that the Appellate Court improperly relied on Murdock
v. Croughwell, 268 Conn. 559, 848 A.2d 363 (2004), and
its discussion of §§ 314 and 317 of the Restatement
(Second) of Torts for prescribing the duty to protect
third parties. The plaintiff asserts, instead, that the
defendant had a duty to protect her from harm that
resulted from Marinyak’s drinking on the defendant’s
premises because the harm was foreseeable. The plain-
tiff also asserts that public policy favors prohibiting the
consumption of alcohol in the workplace and, therefore,
supports holding the defendant responsible for her
injuries. In response, the defendant asserts that the
Appellate Court properly relied on Murdock v. Crough-
well, supra, 559, and its discussion of §§ 315 and 317
of the Restatement (Second). The defendant further
asserts that, under §§ 315 and 317 of the Restatement
(Second), she did not owe a duty of care to the plaintiff
in the present case. We agree with the defendant.
As this court recognized in Murdock v. Croughwell,
supra, 268 Conn. 566, ‘‘[t]he essential elements of a
cause of action in negligence are well established: duty;
breach of that duty; causation; and actual injury. . . .
Duty is a legal conclusion about relationships between
individuals, made after the fact, and [is] imperative to
a negligence cause of action. . . . Thus, [t]here can
be no actionable negligence . . . unless there exists a
cognizable duty of care. . . . [T]he test for the exis-
tence of a legal duty of care entails (1) a determination
of whether an ordinary person in the defendant’s posi-
tion, knowing what the defendant knew or should have
known, would anticipate that harm of the general nature
of that suffered was likely to result, and (2) a determina-
tion, 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 partic-
ular plaintiff in the case. . . .
‘‘With respect to the second inquiry, namely, the pol-
icy analysis, there generally is no duty that obligates
one party to aid or to protect another party. See 2
Restatement (Second), Torts § 314, p. 116 (1965). 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. See W. Prosser & W. Keeton,
Torts (5th Ed. 1984) § 56, pp. 373–74; see also 2
Restatement (Second), supra, §§ 314A, 315 . . . . In
delineating more precisely the parameters of this lim-
ited exception to the general rule, this court has con-
cluded that, [in the absence of] a special relationship
of custody or control, there is no duty to protect a third
person from the conduct of another. . . . Fraser v.
United States, 236 Conn. 625, 632, 674 A.2d 811 (1996).
. . . Ryan Transportation, Inc. v. M & G Associates,
266 Conn. 520, 525–26, 832 A.2d 1180 (2003).’’ (Empha-
sis omitted; internal quotation marks omitted.)
Section 315 of the Restatement (Second) of Torts
provides in relevant part: ‘‘There is no duty so to control
the conduct of a third person as to prevent him from
causing physical harm to another unless (a) a special
relation exists between the actor and the third person
which imposes a duty upon the actor to control the
third person’s conduct . . . .’’2 ‘‘[A]s a whole, § 315, by
its express terms, is an exception to the general rule
that there is no duty to control the conduct of a third
person. The comments to § 315 make this point explic-
itly, stating that ‘[t]he rule stated in this [s]ection is a
special application of the general rule stated in § 314.’
2 Restatement (Second), supra, § 315, comment (a), p.
122. Section 314 of the Restatement (Second), supra,
in turn, provides: ‘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.’ ’’ Murdock v.
Croughwell, supra, 268 Conn. 567.
Mindful, as we were in Murdock, ‘‘that the starting
point of our analysis is the general prohibition against
imposing upon an individual a duty to control the con-
duct of a third party’’; id.; we address the plaintiff’s
contention that the employment relationship between
the defendant and Marinyak is sufficient to create a
duty on the part of the defendant to protect the plaintiff
from harm. We agree with the Appellate Court that
§ 317 of the Restatement (Second) governs our analysis
of the plaintiff’s claim in the present case. Cannizzaro
v. Marinyak, supra, 139 Conn. App. 727–28.
Section 317 of the Restatement (Second) of Torts
provides in relevant part: ‘‘A master is under a duty to
exercise reasonable care so to control his servant while
acting outside the scope of his employment as to pre-
vent him from intentionally harming others or from so
conducting himself as to create an unreasonable risk
of bodily harm to them, if (a) the servant (i) is upon
the premises in possession of the master or upon which
the servant is privileged to enter only as his servant,
or (ii) is using a chattel of the master, and (b) the master
(i) knows or has reason to know that he has the ability
to control his servant, and (ii) knows or should know
of the necessity and opportunity for exercising such
control.’’3
With these principles in mind, we turn to the evidence
presented to the trial court for consideration of the
defendant’s motion for summary judgment. A review
of the undisputed evidence demonstrates that the defen-
dant established that she: (1) never served alcohol to
the workers; (2) had no knowledge that the workers
were drinking while on her property; (3) had specifically
instructed the supervisor that she did not want the
workers drinking while on her property; and (4) was
not present on the property on the day of the accident
and for a period of approximately three days before
the accident.
First, the defendant established that she never served
alcohol to any of the workers on her property, nor
authorized any agents, servants or employees to cause
alcohol to be served to any of the individuals working
on her property. Marinyak also testified at his deposi-
tion that the defendant never provided any alcohol to
the workers at her property.
Second, the defendant established that she had no
knowledge that any of the individuals working on her
property ever consumed alcohol while working. She
testified that she never observed any full or empty bot-
tles of alcohol on the property and never observed
anyone that seemed to be intoxicated. Marinyak also
corroborated the defendant’s testimony. Marinyak
explained that the defendant had lived in her other
home in Bridgeport and only would come to the prop-
erty ‘‘once a week to see how the work was going
. . . .’’ Marinyak further testified that the defendant
never saw him drinking at the job site and that he did
not think she ever saw anybody drinking at the job site
‘‘[a]nd if she did, [he thought] she probably would tell
them to leave the job. She didn’t see anybody pouring
and drinking . . . she never saw us drink.’’ Indeed,
Marinyak testified that the alcohol was typically left in
the basement of the property and that he never saw
the defendant in the basement of the property.
Third, the defendant established that she told John
Wanat, the contractor who supervised the work on her
property, that she did not want any of the workers
drinking alcohol while on the property. Wanat corrobo-
rated the defendant’s testimony, testifying in his deposi-
tion that the defendant ‘‘did not want any alcohol on
the job and in the end I had to promise her that I myself,
because I had a couple once in a while or something,
I’d made a promise to her that I wouldn’t drink on her
job site at all . . . .’’ Marinyak also testified that Wanat
told him not to drink on the job site.
Fourth, the defendant established that she was not
present at the property on the date of the accident. In
her affidavit, the defendant stated that she was in Flor-
ida from January 26, 2007 through January 31, 2007.
Marinyak also testified that the defendant was not at
the property on the day of the accident and that she
had not been at the property for approximately four
days because she was in Florida. The trial court found
that the defendant never served, provided or distributed
alcohol to any of the employees and that there was no
evidence to the contrary.
Applying the governing legal principles to the facts
of the present case, we conclude that the defendant
did not owe a duty of care to the plaintiff. Specifically,
the plaintiff did not establish a genuine issue of material
fact regarding whether the defendant knew or should
have known of the necessity and opportunity for exer-
cising control over Marinyak’s consumption of alcohol
on her premises.4 Instead, the undisputed evidence
established that the defendant never served alcohol to
the workers, had no knowledge that the workers were
drinking while on her property, had specifically
instructed a supervisor that she did not want the work-
ers drinking while on her property, and was not present
on the day of the accident.
Our conclusion is consistent with cases from other
jurisdictions that have considered this prong of § 317
of the Restatement (Second). For instance, in Biel v.
Alcott, 876 P.2d 60, 62–63 (Colo. App. 1993), the Colo-
rado Court of Appeals concluded that an employer did
not have a duty to protect third parties from her employ-
ee’s consumption of alcohol because she did not know
that the employee had consumed alcohol on the date
of the accident, or at any other time, and was not aware
that the employee had a history of alcohol related
problems.
The Court of Appeals of North Carolina also consid-
ered this prong of § 317 of the Restatement (Second)
in Peal v. Smith, 115 N.C. App. 225, 228, 444 S.E.2d 673
(1994) aff’d, 340 N.C. 352, 457 S.E.2d 599 (1995). In Peal,
the Court of Appeals of North Carolina concluded that
a corporate defendant had a duty to protect third parties
from the harm presented by its employees driving while
intoxicated after leaving the company premises where
they would drink alcohol because the company knew
of the employees’ activities, had a policy expressly pro-
hibiting it, but failed to control the employees’ behavior.
Id., 232–34.
Similarly, the Supreme Court of Hawaii concluded
that ‘‘where [employers] are on actual notice that, pur-
suant to traditions or practices that they themselves
have instituted or condoned, their employees are sys-
tematically and consistently consuming alcohol on com-
pany premises after working hours, albeit outside the
scope of their employment. Under such circumstances,
and given a sufficient record, an employer can or should
know of the necessity and opportunity for exercising
such reasonable control over its employees as to avoid
the foreseeable risk that an inebriated employee will
injure a third party in a motor vehicle accident.’’
(Emphasis omitted.) Wong-Leong v. Hawaiian Inde-
pendent Refinery, Inc., 76 Haw. 433, 445–46, 879 P.2d
538 (1994).
In the present case, the undisputed facts demonstrate
that the defendant homeowner neither facilitated nor
condoned the consumption of alcohol by workers on
her property, but instead expressly instructed a supervi-
sor to prohibit the consumption of alcohol on her prop-
erty. Moreover, the defendant was a homeowner who,
unlike a traditional employer, was only present at the
property one day a week for a brief visit. Accordingly,
we cannot conclude that under the facts of this case,
the defendant knew or should have known of the neces-
sity to exercise control over her employees to avoid
the risk that an inebriated employee would injure a
third party in a motor vehicle accident on the way home
from her property.
The plaintiff further asserts that the Appellate Court
improperly concluded that Seguro v. Cummiskey, 82
Conn. App. 186, 844 A.2d 224 (2004), is inapplicable to
the present case. Seguro involved a claim by an individ-
ual who was injured by the defendant’s employee when
the employee left the defendant’s premises after work-
ing as a bartender at the defendant’s place of business.
Id., 187. In concluding that the employer owed a duty
to third parties to protect them from the harm of a
bartender leaving his place of employment after con-
suming alcohol, the Appellate Court reasoned as fol-
lows: ‘‘The jury reasonably could have found that the
[employer] had actual knowledge that [the bartender]
was drinking during his shift. [The bartender] admitted
to drinking while at work . . . and stated that he had
made no effort to conceal his drinking. Further, the
[employer] allowed his employees to drink alcoholic
beverages while at work. Therefore, the jury reasonably
could have found it foreseeable that the [employer’s]
failure to prevent [the bartender’s] drinking could have
resulted in [the bartender’s] driving home from work
while intoxicated and injuring a third party.’’ Id., 194–95.
On the basis of the foregoing, we conclude that Seguro
is not applicable to the present case because, as we
discussed previously in this opinion, unlike the
employer in Seguro, the defendant in the present case
had no knowledge that Marinyak was consuming alco-
hol during work and did not allow the consumption of
alcohol on her property.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
The defendant Stephan Marinyak, the apportionment defendant Town
Fair Tire, the third party defendant Rana Saleh, doing business as Getty
Barnum Mart, and the substitute third party defendant Adan Rahim, doing
business as Getty Barnum Mart, are not parties to this appeal. For the sake
of convenience, we refer in this opinion to Mayo as the defendant and to
Marinyak by name. See Cannizzaro v. Marinyak, 139 Conn. App. 722, 723
n.1, 57 A.3d 830 (2012).
2
‘‘The text of § 315 (a) of the Restatement (Second) does not define the
special relationships that give rise to a duty to control the conduct of a third
party. The comments to § 315 (a), however, are particularly enlightening in
this regard because they reference corresponding Restatement (Second)
sections that delineate precisely those relationships that fall within the
purview of § 315 (a). See 2 Restatement (Second), supra, § 315, comments
(a) through (c). ‘The relations between the actor and a third person which
require the actor to control the third person’s conduct are stated in §§ 316–
319.’ Id., comment (c).
‘‘Sections 316, 318 and 319 of the Restatement (Second) all identify specific
relationships that give rise to a duty to control a third party pursuant to
§ 315 (a). Section 316 imposes a duty on a parent to prevent his minor child
from intentionally harming a third party. Section 318 imposes a duty on the
possessor of land or chattels to control the conduct of a licensee. Finally,
§ 319 requires those exercising custodial control over an individual, such
as sheriffs or wardens, to prevent such an individual from harming third
parties.’’ (Footnotes omitted.) Murdock v. Croughwell, supra, 268 Conn.
568–69.
3
The plaintiff asserts that this court should adopt § 41 of the Restatement
(Third) of Torts, Liability for Physical and Emotional Harm (2012), and look
to that section for additional guidance regarding the duty owed to third
persons based on a special relationship. We decline to do so at this time.
Nonetheless, we note that we agree with the Appellate Court’s conclusion
that, even if § 41 was applied to the present case, it is unlikely that our
analysis would change because ‘‘[a]lthough the Restatement (Third) removes
the premises and chattel requirements contained in the Restatement (Sec-
ond), the comments to § 41 explain that ‘[e]mployment facilitates harm to
others when the employment provides the employee access to physical
locations, such as the place of employment . . . or other means by which
to cause harm that would otherwise not be available to the employee.’ See
id., § 41, comment (e), p. [67]. It is unlikely that we would conclude that
there was anything about the defendant’s premises that furnished Marinyak
access to alcohol before driving that he would not have had otherwise.
Further, the Reporter’s Note also cites approvingly to those cases, decided
under § 317 of the Restatement (Second), where employers did not owe a
duty to plaintiffs injured in crashes with intoxicated employees, even when
the employees drank on the employer’s premises. See id., § 41, Reporter’s
Note to comment (e), p. [76].’’ Cannizzaro v. Marinyak, supra, 139 Conn.
App. 735.
4
Because we conclude that the plaintiff did not establish a genuine issue
of material fact as to whether the defendant knew or should have known
of the necessity and opportunity for exercising control over Marinyak, we
need not decide whether the Appellate Court properly concluded that the
defendant did not owe a duty of care to the plaintiff because the accident
did not occur on the defendant’s premises, even though the consumption of
alcohol occurred on the defendant’s premises. See Cannizzaro v. Marinyak,
supra, 139 Conn. App. 727–29.