Raspberry Junction Holding, LLC v. Southeastern Connecticut Water Authority ( 2021 )

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RASPBERRY JUNCTION HOLDING, LLC v. SOUTHEASTERN
CONNECTICUT WATER AUTHORITY—CONCURRENCE
ECKER, J., concurring. I concur in the result reached
by the majority, but I write separately to express my
view that we have started down the wrong road by
deciding economic loss cases using what the majority
accurately refers to as ‘‘the well established [four factor,
duty] test first articulated in Jaworski v. Kiernan, 241
Conn. 399, 404, 696 A.2d 332 (1997) . . . .’’ That test
may have been helpful for resolving the idiosyncratic
issue presented in that case, namely, whether partici-
pants in a team contact sport owe each other a duty
of care, but it has limited applicability outside of that
context. The Jaworski test is particularly ill-suited to
a case like the present one, which involves economic
loss unaccompanied by personal injury or property
damage, and raises very different policy and doctrinal
issues from those confronted in Jaworski. Unfortu-
nately, a formulation that was fabricated for narrow
application in one specific and peculiar context nearly
twenty-five years ago has since been uncritically
adopted by this court as a one-size-fits-all test for decid-
ing the policy prong of the duty analysis in all negligence
cases, including economic loss cases like the present
one. There are far better and more sophisticated tools
available for this purpose, and I am hopeful that future
cases will provide us with the opportunity to use them.
Before I proceed, I emphasize that I do not fault the
majority for applying the Jaworski test in this case.
The parties did not offer any alternative analysis to
address the policy issues underlying the legal question
on appeal. And their advocacy choice is understandable
because this court has signaled that Jaworski provides
the proper framework for determining whether a plain-
tiff may recover damages for purely economic losses
caused by a defendant’s alleged negligence. See Law-
rence v. O & G Industries, Inc., 319 Conn. 641, 650–51,
126 A.3d (2015). Nor, when we had the chance to do
so, did we redirect the parties or suggest a different
approach when this case first appeared before us on
appeal. See Raspberry Junction Holding, LLC v. South-
eastern Connecticut Water Authority, 331 Conn. 364,
368 n.3, 378, 203 A.3d 1224 (2019) (stating that we have
not yet decided whether to adopt economic loss doc-
trine, citing Lawrence, and remanding case for adjudica-
tion of defendant’s claim that damages for purely eco-
nomic loss are barred by that doctrine). So here we are.
It is necessary to review Jaworski to understand why
its four factor test provides a poor framework for decid-
ing whether policy considerations favor or disfavor
allowing recovery in negligence for pure economic loss.
The plaintiff in Jaworski sustained personal injuries
playing in a coed recreational soccer league when an
opposing player made contact with her during a game.
Jaworski v. Kiernan, supra, 241 Conn. 400. She filed
an action in two counts against the player who caused
her injuries, alleging negligence and recklessness. Id.,400–401. The jury returned a verdict in the plaintiff’s
favor on the negligence count and in the defendant’s
favor on the recklessness count. Id., 401. The issue on
appeal was whether the defendant owed the plaintiff a
duty of care on the basis of which liability could be
imposed for ordinary negligence. See id., 407, 412.
In resolving that issue, we observed that, ‘‘[a]lthough
it has been said that no universal test for [duty] ever
has been formulated; [W. Keeton et al., Prosser and
Keeton on the Law of Torts (5th Ed. 1984)] § 53, p.
358; our threshold inquiry has always been whether the
specific harm alleged by the plaintiff was foreseeable
to the defendant.’’ (Internal quotation marks omitted.)
Jaworski v. Kiernan, supra, 241 Conn. 405. To deter-
mine whether the harm is foreseeable, we ask, ‘‘would
the ordinary [person] in the defendant’s position, know-
ing what he knew or should have known, anticipate
that harm of the general nature of that suffered was
likely to result?’’ (Internal quotation marks omitted.) Id.But the law has long recognized that foreseeability
is not enough. The court in Jaworski explained the
underlying idea: ‘‘Many harms are quite literally foresee-
able, 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 expres-
sion of the sum total of those considerations of policy
which lead the law to say that the plaintiff is entitled
to protection. . . . Every injury has ramifying conse-
quences, like the ripplings of the waters, without end.
The problem for the law is to limit the legal conse-
quences of wrongs to a controllable degree. . . . 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.’’ (Citations omitted; internal quotation
marks omitted.) Id., 406.
This brings us to the four part Jaworski test, which
was formulated ‘‘to determine as a matter of policy
the extent of the legal duty to be imposed [on] the
defendant.’’ Id., 407. The court determined that four
‘‘policy’’ questions were determinative of the duty
inquiry: ‘‘(1) the normal expectations of participants in
the sport in which the plaintiff and the defendant were
engaged; (2) the public policy of encouraging continued
vigorous participation in recreational sporting activities
while weighing the safety of the participants; (3) the
avoidance of increased litigation; and (4) the decisions
of other jurisdictions.’’1 Id. Applying these four factors
in the context of team contact sports, we held that
participants owe other players a legal duty to refrain
from reckless or intentional conduct; ‘‘[p]roof of mere
negligence is insufficient to create liability.’’ Id., 412.
My problem with the Jaworski test can be stated
broadly or narrowly. The broad version would question
the utility of the test in most negligence cases, even
those involving negligence claims for personal injuries.
Although the four factors enumerated in Jaworski may
identify the right considerations for deciding the policy
prong of the duty analysis in the unique factual circum-
stances of that case, I am doubtful that it is the right
test for adjudicating the existence or scope of a duty
in personal injury cases arising from other contexts.2 A
moment’s reflection reveals a host of other or additional
policy related considerations that courts and commen-
tators have long consulted as part of the duty analysis
in negligence cases generally.3 To be sure, at the most
abstract level, policy considerations are relevant in
many cases in which courts are asked to limit, expand,
or create common-law liability rules; they play a signifi-
cant role in tort cases generally and negligence actions
in particular. See, e.g., Mueller v. Tepler, 312 Conn. 631,
650, 95 A.3d 1011 (2014) (‘‘[t]he issue of whether to
recognize a common-law cause of action . . . is a mat-
ter of policy for the court to determine based on the
changing attitudes and needs of society’’ (internal quo-
tation marks omitted)). It also is true that our modern
negligence jurisprudence tends4 to treat policy ques-
tions as part of the duty analysis. See, e.g., Greenwald
v. Van Handel, 311 Conn. 370, 375, 88 A.3d 467 (2014)
(‘‘this court examines policy questions in negligence
cases within the analytic framework of the duty ele-
ment’’).
But, when we descend from abstraction to examine
the issues at stake in any particular case or class of
cases, it is obvious that different policy questions are
implicated in different contexts within negligence law.
A wide array of policy considerations will arise
depending on the type of case, and the associated doc-
trinal variations are correspondingly various.5 Distinct
doctrines—some duty related, some not—implicating
distinct policy considerations will apply depending on
the status and characteristics of the respective parties
(e.g., minor or adult, trespasser or invitee), the relation-
ship between the parties (e.g., fiduciary, custodial, or
professional), the character of the alleged negligence
(e.g., omission or commission), and the nature of the
harm at issue (e.g., physical, emotional, economic, or
a combination). The four factor Jaworski test does not
even begin to address or account for the various policy
considerations at play in many cases. Nor was it origi-
nally intended to do so.
The narrow version of this critique is confined to
cases, like the present case, involving a negligence claim
for pure economic loss. Whatever the utility of the Jawor-
ski test in other contexts, it is ill-suited to decide
whether damages for pure economic loss should be
recoverable in a negligence action because the relevant
policy considerations in this particular context are so
different. Judge Richard A. Posner, no stranger to cost-
benefit analysis in the law, made this point more than
three decades ago in a negligence case for purely eco-
nomic loss involving two commercial parties. See Rar-
din v. T & D Machine Handling, Inc., 890 F.2d 24,
28–29 (7th Cir. 1989) (observing that ‘‘there are . . .
differences between the [personal injury] case and the
[economic loss] case, whether in a stranger or in a con-
tractual setting’’). Indeed, the drafters of the Restatement
(Third) of Torts viewed the differences between the
two contexts as sufficiently meaningful that they chose
to write one treatise covering negligence resulting in
physical and emotional harm and a separate treatise
addressing the legal rules that apply to unintentional
conduct resulting in economic harm.6
One example relevant to the present case suffices for
illustrative purposes. The important issue of physical
safety addressed in the second Jaworski factor is not
present at all in the present case, which involves a claim
by a commercial entity seeking lost business profits.
The effort to fit the square peg of the claimed economic
loss into the round hole of physical health and safety is
doomed to fail because the cost-benefit considerations
that inform the relevant ‘‘policy’’ analysis in the present
case do not relate to health or safety; instead, they
relate to commercial concerns involving risk allocation,
market alternatives, and whatever other economic con-
sequences may flow from the proposed legal rule. Policy
concerns relevant to tort law exist outside of the realm
of health and safety in negligence claims for economic
loss involving professional malpractice, breach of fidu-
ciary duty, misrepresentation, and so forth. The major-
ity in the present case does its level best—indeed, it
skillfully works within the constraints of the Jaworski
framework—to conform the factors to better address
some of the relevant policy considerations, but the fact
remains that the factors are ill-suited to the inquiry
at hand.7
In the end, the demands of Jaworski may have caused
us to lose sight of the basic facts and legal considera-
tions relevant to this case. The plaintiff, Raspberry Junc-
tion Holding, LLC, and the defendant, Southeastern
Connecticut Water Authority, have a direct, contractual
relationship with one another, and breach of contract
is the true basis of the plaintiff’s claim. The tort claim
is a breach of contract case dressed up in negligence
garb, and it seems to me that any recovery of lost profits
under these particular circumstances should be con-
trolled by contract principles governing consequential
damages. See Restatement (Third), Torts, Liability for
Economic Harm § 3, p. 13 (2020) (generally, ‘‘there is
no liability in tort for economic loss caused by negli-
gence in the performance or negotiation of a contract
between the parties’’). The situation is no different than
if the defendant delivered its water by truck instead of
pipeline, and its lone delivery vehicle became inopera-
ble due to careless maintenance, with the same conse-
quences for the plaintiff’s hotel business. Indeed, ‘‘[t]he
spirit of Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep.
145 (1854), still the leading case on the nonrecoverabil-
ity of consequential damages in breach of contract suits,
broods over this case . . . although the present case
is a tort case rather than a contract case.’’ Rardin v.
T & D Machine Handling, Inc., supra, 890 F.2d 26; cf.
1 Restatement (Third), Torts, Liability for Physical and
Emotional Harm, § 7, comment (d), p. 80 (2010) (‘‘one
reason the general duty of reasonable care . . . is lim-
ited to physical harm is that liability for purely economic
harm in commercial cases often raises issues better
addressed by contract law or by the tort of misrepresen-
tation’’).
I hope that we will be presented with a legal and
factual record in some future case that will permit us
to consider an alternative framework for adjudicating
claims of economic loss unaccompanied by personal
injury or property damage.8 In the meantime, I agree
with the majority that ‘‘public policy does not support
the imposition of a duty on the defendant under the
circumstances of this case,’’ and, therefore, I respect-
fully concur.
1
In my view, insufficient attention has been paid to the fact that the four
factor test ‘‘first articulated’’ in Jaworski was conjured out of thin air. To
the best of my knowledge, the test has no discernable source in any case
law from Connecticut or anywhere else. Nor was it drawn from the
Restatement of Torts, scholarly commentary, or out-of-state legal authority.
Although Jaworski cites to one of this court’s earlier cases as supporting
authority for the four factors, that case does not contain even the rudimen-
tary elements of the Jaworski formulation. See Jaworski v. Kiernan, supra,
241 Conn. 407, citing Maloney v. Conroy, 208 Conn. 392, 400–401, 545 A.2d
1059 (1988); see also Maloney v. Conroy, supra, 400–401 (bystander to
medical malpractice cannot recover damages for emotional distress caused
by witnessing patient’s gradual decline). To the contrary, Maloney empha-
sizes the unique nature of cases involving negligence claims for bystander
emotional distress arising out of medical malpractice and affirmatively
rejects the argument that the liability rule in that specialized context should
be the same ‘‘as it is in negligence cases generally . . . .’’ Maloney v. Conroy,
supra, 400. The court in Maloney observed that ‘‘[m]ost of the courts and
commentators that have considered the matter . . . have recognized the
necessity for imposing some rather arbitrary limitations on the right of a
bystander to recover for emotional distress that are not applied in other
negligence actions.’’ Id., 400–401.
2
This court has applied the four part Jaworski test in a wide range of
personal injury cases that have nothing to do with team contact sports. See,
e.g., Grenier v. Commissioner of Transportation, 306 Conn. 523, 526–27,
544, 51 A.3d 367 (2012) (duty of fraternity to conduct safe events off prem-
ises); Monk v. Temple George Associates, LLC, 273 Conn. 108, 114, 118, 869
A.2d 179 (2005) (duty to provide adequate security in parking garage). Noth-
ing in Jaworski, however, indicates that the four part test was intended for
general application in other areas of personal injury law. To the contrary,
the test, as formulated in Jaworski, is not framed as a generic cost-benefit
test or a broadly applicable public policy inquiry but, instead, is narrowly
couched in specific terms relating only to sports related personal injuries.
See Jaworski v. Kiernan, supra, 241 Conn. 408 (balancing ‘‘the relevant
public policy considerations surrounding sports injuries arising from team
contact sports’’).
3
It is hard to know where to begin, and I will not do so here beyond
quoting the following observation, written almost sixty years ago, to illustrate
the basic point: ‘‘An affirmative declaration of duty simply amounts to a
statement that two parties stand in such relationship that the law will impose
on one a responsibility for the exercise of care toward the other. Inherent
in this simple description are various and sometimes delicate policy judg-
ments. The social utility of the activity out of which the injury arises, com-
pared with the risks involved in its conduct; the kind of person with whom
the actor is dealing; the workability of a rule of care, especially in terms of
the parties’ relative ability to adopt practical means of preventing injury;
the relative ability of the parties to bear the financial burden of injury and
the availability of means by which the loss may be shifted or spread; the
body of statutes and judicial precedents which color the parties’ relationship;
the prophylactic effect of a rule of liability; in the case of a public agency
defendant, the extent of its powers, the role imposed [on] it by law and the
limitations imposed [on] it by budget; and finally, the moral imperatives
which judges share with their fellow citizens—such are the factors which
play a role in the determination of duty.’’ Raymond v. Paradise Unified
School District, 218 Cal. App. 2d 1, 8, 31 Cal. Rptr. 847 (1963)
4
Policy questions are by no means confined to the duty analysis in negli-
gence law. Examples abound. See, e.g., Hall v. Burns, 213 Conn. 446, 479,
569 A.2d 10 (1990) (‘‘[c]onstructive notice is premised on the policy determi-
nation that under certain circumstances a person should be treated as if he
had actual knowledge so that one should not be permitted to deny knowledge
when he is acting so as to keep himself ignorant’’ (internal quotation marks
omitted)); Kowal v. Hofher, 181 Conn. 355, 357–58, 436 A.2d 1 (1980) (policy
determination rejecting liability for negligent provision of alcohol as part
of proximate causation analysis).
5
See, e.g., D. Owen, ‘‘Duty Rules,’’ 54 Vand. L. Rev. 767, 773–74 (2001)
(‘‘Among the many recurring categories of cases in which courts have come
to understand that negligent conduct (negligence-as-breach) should not
always give rise to liability, even when the plaintiff and the risk were both
entirely foreseeable, are claims involving injuries to third persons (by manu-
facturers, professionals, employers, social hosts providing guests with alco-
hol, and probation officers), harm to unborn plaintiffs, nonfeasance (involv-
ing the extent of a duty to rescue or otherwise affirmatively to act),
landowner liability (to trespassers and other uninvited guests), and damage
to nonphysical interests (especially emotional harm and pure economic
loss). In contexts such as these, where the appropriateness of allowing
recovery under the law of negligence is unclear, twentieth century courts
came to recognize the importance of duty’s threshold, gatekeeper role.’’
(Footnotes omitted.)).
6
Section 1 (1) of the Restatement (Third) of Torts, Liability for Economic
Harm, provides that, in general, ‘‘[a]n actor has no general duty to avoid the
unintentional infliction of economic loss on another.’’ Restatement (Third),
Torts, Liability for Economic Harm § 1 (1), p. 1. The Restatement (Third)
of Torts, Liability for Economic Harm, further provides that ‘‘there is no
liability in tort for economic loss caused by negligence in the performance
or negotiation of a contract between the parties.’’ Id., § 3, p. 13. There
are exceptions to these general rules, however, for, among other torts,
professional negligence; see id., § 4, p. 23; negligent misrepresentation; see
id., § 5, pp. 35–36; and negligent performance of services. See id., § 6, pp. 62–
63.
7
The first Jaworski factor (regarding the reasonable expectations of the
parties) could be made relevant to the issues raised in the present case,
but only under a substantially reformulated doctrine. Even then, any overlap
seems more a matter of fortuity rather than doctrinal consonance. The third
Jaworski factor (avoidance of increased litigation) appears to be designed
to cut only in one direction and fails to ask how to measure the increase
or whether the costs imposed may be offset by a countervailing decrease
in transaction costs elsewhere in the system. The fourth Jaworski factor
(the law in other jurisdictions) can and should be included in any analysis
of this nature, but as a matter of persuasive authority rather than doctrinal
command.
8
I do not suggest any particular solution to the problems that I identify
in this opinion because there has been no briefing by the parties and no
deliberation among my colleagues regarding alternatives to the Jaworski
test. I feel obligated to raise the issues (or at least justified in doing so)
because, as this very case illustrates, we cannot expect trial courts or lawyers
to depart from the course we have charted under Jaworski, at least not
without an indication from this court that a different approach may be
preferable.