Doe v. Boy Scouts of America Corp.

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JOHN DOE v. THE BOY SCOUTS OF AMERICA
CORPORATION ET AL.
(SC 19516)
Rogers, C. J., and Zarella, Eveleigh, McDonald, Espinosa, Robinson and
Sheldon, Js.*
Argued April 1—officially released October 11, 2016
Wesley W. Horton, with whom were Brendon P. Lev-
esque and Philip T. Newbury, Jr., for the appellant
(named defendant).
Paul A. Slager, with whom was Jennifer B. Goldstein,
for the appellee (plaintiff).
Erin K. Olson, Margaret A. Garvin and Brian D.
Kent filed a brief for the National Center for Victims
of Crime et al. as amici curiae.
Opinion
ROGERS, C. J. The primary issue that we must resolve
in this appeal is whether the trial court should have
instructed the jury that the defendant, The Boy Scouts
of America Corporation,1 could not be held responsible
for the sexual abuse of the plaintiff, John Doe,2 by a
fellow member of the Boy Scouts unless the plaintiff
proved that the defendant’s own conduct increased the
risk that the plaintiff would be subjected to such abuse.
The plaintiff brought this action against the defendant
claiming that, while he was a member of a Boy Scout
troop during the mid-1970s, he was sexually abused
during scouting activities by his Boy Scout patrol leader,
Siegfried Hepp. The plaintiff alleged that the defendant
negligently had failed to take adequate precautions to
prevent Hepp’s sexual abuse of the plaintiff. In addition,
the plaintiff alleged negligent infliction of emotional
distress, recklessness and a violation of the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes
§ 42-110a et seq. After a trial, the jury returned a verdict
in favor of the plaintiff on all claims. The trial court
ultimately rendered judgment in accordance with the
verdict, and this appeal followed.3 The defendant claims
on appeal that: (1) the trial court improperly denied its
request to charge the jury that the defendant could not
be held liable for negligence unless the plaintiff proved
that the defendant’s conduct created or increased the
risk that the plaintiff would be harmed by Hepp; (2)
the defendant had no duty to protect the plaintiff from
Hepp’s criminal or intentional misconduct because it
did nothing to increase the risk of harm to the plaintiff
and the harm was not foreseeable; (3) the plaintiff pre-
sented insufficient evidence to support a finding that the
defendant’s conduct had caused the plaintiff’s damages;
(4) the plaintiff presented insufficient evidence to sup-
port a finding that the defendant had been reckless; (5)
the trial court incorrectly determined that the statute
of limitations set forth in General Statutes § 52-577d
rather than that set forth in General Statutes § 52-584
applied to the plaintiff’s negligence and recklessness
claims; (6) the trial court incorrectly determined that
the statute of limitations set forth in § 52-577d rather
than that set forth in General Statutes § 42-110g (f)
applied to the plaintiff’s CUTPA claim; and (7) the dam-
ages award was excessive. We agree with the defen-
dant’s first claim and, therefore, conclude that the
judgment must be reversed and the case must be
remanded for a new trial at which the jury may be
properly instructed on the defendant’s negligence
claim. We further agree with the defendant’s sixth claim
that the trial court improperly determined that § 52-
577d applies to the plaintiff’s CUTPA claim. We reject
the defendant’s second through fifth claims, however,
and we need not reach his seventh claim because we
are remanding the case for a new trial.
The record reveals the following facts that the jury
reasonably could have found and the procedural his-
tory. The defendant is a nonprofit organization char-
tered by Congress in 1910. The defendant issues
charters to local volunteer groups, known as local coun-
cils, which are incorporated as charitable organizations
in the states in which they are located. In turn, the local
councils issue charters to local community organiza-
tions, such as churches, schools or service clubs, that
want to establish a Boy Scout troop. The chartered
local organization then forms a troop committee for
the purpose of providing oversight to the local troop,
including choosing the troop’s adult leaders.
From the 1920s through the mid-1970s, the defendant
maintained in a central location files containing the
names of persons who were ineligible to volunteer as
members of the local chartered organization or as troop
leaders because they had been the subjects of allega-
tions of sexual misconduct (ineligible volunteer files).4
When an ineligible volunteer file was created, the volun-
teer’s registration was revoked and he was barred from
participating in the Boy Scouts in the future. Most of
the ineligible volunteer files involved allegations against
adults, but a number of files were created for minors
under the age of eighteen.
Although the defendant maintained the ineligible vol-
unteer files in its offices, information regarding a volun-
teer’s alleged misconduct was ordinarily shared with
the local council, and the ineligible volunteer was noti-
fied by letter when a file was created. The files were
confidential, however, and were not made available to
the general public.
The plaintiff, who was born in June, 1964, was a
member of a Boy Scout troop in New Fairfield during
the mid-1970s. The troop had thirty-five to forty mem-
bers and was subdivided into patrols of five to seven
members. Hepp, who was born in 1961, was the plain-
tiff’s patrol leader. Hepp sexually abused the plaintiff
on three separate occasions. On the first two occasions,
Hepp and the plaintiff were at a Boy Scout camp. Hepp
asked the plaintiff if he wanted to go fishing and then,
when they were alone in the woods, Hepp showed the
plaintiff pornography and performed oral sex on him.
On the third occasion, Hepp and the plaintiff were at
a Boy Scout jamboree. Hepp came into the plaintiff’s
tent at the end of the day, told the plaintiff to take his
pants off and then performed anal sex on him.
In 2012, the plaintiff brought this action alleging that
he had suffered physical, emotional and psychological
injuries as the result of the sexual assaults by Hepp, and
that the defendant was liable for his damages because it
had negligently failed to take adequate steps to prevent
his injuries. In addition, the plaintiff alleged that the
defendant had negligently inflicted emotional distress,
that its conduct was reckless and that its conduct con-
stituted a CUTPA violation. The defendant claimed by
way of special defenses that the plaintiff’s negligence
and recklessness claims were barred by § 52-584 or, in
the alternative, by General Statutes § 52-577, that
Hepp’s intentional criminal acts were intervening
causes that superseded any negligence by the defen-
dant, that the plaintiff failed to mitigate his damages,
and that the CUTPA claim was barred by § 42-110g (f).
The defendant subsequently filed a motion for sum-
mary judgment claiming, among other things, that it
was entitled to judgment as a matter of law because it
owed no duty of care to the plaintiff under the circum-
stances of this case, that the plaintiff had failed to estab-
lish a prima facie case with respect to its recklessness
and CUTPA claims, and that the CUTPA claim was
barred by the statute of limitations. The trial court
denied the defendant’s motion.
At trial, the plaintiff’s theory was that the defendant
had been negligent because, even though it had been
aware of numerous incidents of sexual abuse during
scouting activities in the decades preceding the 1970s,
both by adult and by minor Boy Scout participants, it
failed to take precautions against sexual abuse by: (1)
providing education or training to local councils about
the risk of sexual abuse; (2) distributing information
or training to Boy Scout members or their parents
regarding the risk of sexual abuse; and (3) creating
other barriers to minimize the risk of sexual abuse. In
support of these claims, the plaintiff presented evidence
in the form of expert testimony by Michael Kalinowski,
an associate professor of family studies and human
development at the University of New Hampshire and
a former member of the New Hampshire Task Force
on Sexual Abuse Prevention, with special expertise in
the subject of institutional responsibilities for keeping
children safe. Kalinowski testified that, in his opinion,
the defendant’s failure to inform the public about the
risk of sexual abuse during Boy Scout activities created
a dangerous situation for members of the Boy Scouts
and was negligent. In addition, Gary Schoener, a clinical
psychologist with expertise in assisting institutions to
set up programs to prevent sexual abuse in institutional
settings, testified that, on the basis of his review of the
ineligible volunteer files, it was his opinion that the
defendant must have been aware before the mid-1970s
of incidents of sexual abuse of members of the Boy
Scouts by fellow members. The plaintiff also entered
into evidence three Scout Handbooks, published in
1972, 1975 and 1976 under the auspices of, and copy-
righted by, the defendant. The Scout Handbooks gener-
ally promoted camping as a central activity of the Boy
Scouts and stated that some patrols may choose to go
on overnight camping trips by themselves, led only by
a patrol leader and with no adult supervision.5
At the conclusion of the plaintiff’s case, the defendant
filed a motion for a directed verdict in which it con-
tended, among other things, that the plaintiff’s negli-
gence and recklessness claims were barred by § 52-584
or § 52-577, that the defendant had no duty to protect
the plaintiff, that the plaintiff had failed to prove that
the defendant caused his damages, and that the CUTPA
claim was barred by the statute of limitations. The trial
court denied the motion.
At the conclusion of the presentation of evidence,
the defendant submitted a request to charge the jury
that contained the following proposed instruction: ‘‘The
plaintiff claims that . . . Hepp engaged in intentional
misconduct with him. As a general matter, the [defen-
dant is] not responsible for anticipating the intentional
misconduct of a third party, in this case Hepp, unless
[it] knew or had reason to know of Hepp’s propensity
for misconduct from 1976 to 1978.’’
In addition, the defendant requested the following
instruction: ‘‘The first exception to the rule that the
[defendant is] not responsible for anticipating the inten-
tional misconduct of Hepp unless [it] knew or should
have known of his propensity for misconduct is when
the [defendant’s] own conduct created or increased the
foreseeable risk that the plaintiff would be harmed by
the misconduct of a third party.
‘‘In order to answer that question, you should con-
sider all of the following factors: the known character,
past conduct, and tendencies of Hepp; the temptation
or opportunity which the [defendant’s] conduct may
afford [Hepp] for such behavior; the gravity of the harm
which may result; and the possibility that some other
person will assume the responsibility for preventing the
conduct or the harm, together with the burden of the
precautions which the [defendant] would be required
to take. Where the risk is relatively slight in comparison
with the utility of the [defendant’s] conduct, [it] may
have no obligation to act.’’ The trial court declined to
give either of the instructions that the defendant
requested but, instead, gave a standard negligence
instruction.6
The jury returned a verdict for the plaintiff on all
counts and awarded $4 million in compensatory dam-
ages on the plaintiff’s negligence claim, $3 million in
compensatory damages on the claim of negligent inflic-
tion of emotional distress, and $10 in damages on the
CUTPA claim. In addition to these damages, the trial
court awarded punitive damages measured by attor-
ney’s fees in the amount of $2,792,541.95 and litigation
costs in the amount of $59,558.50 on the recklessness
claim, offer of compromise interest on that claim in
the amount of $616,053.68, and offer of compromise
interest on the negligence and negligent infliction of
emotional distress claims in the amount of
$1,386,001.98, for a total damages award of
$11,854,166.11.
After the jury verdict, the defendant filed a motion
to set aside the verdict and order a new trial or remittitur
pursuant to Practice Book § 16-35. The defendant con-
tended, among other things, that it had no duty to pro-
tect the plaintiff under the circumstances of the case,
that the plaintiff had failed to prove that the defendant
caused his damages, that the plaintiff had failed to prove
that the defendant was reckless, and that the trial court
improperly had given a general negligence instruction
to the jury. The defendant further contended that the
$7 million compensatory damages award was excessive
and requested a remittitur or, in the event that the
plaintiff did not accept a remittitur, a new trial.
The defendant also filed a motion to set aside the
verdict and to render judgment notwithstanding the
verdict pursuant to Practice Book § 16-37. In that
motion, the defendant repeated its contentions that it
had no duty to protect the plaintiff and that the plaintiff
had failed to prove causation, recklessness or a CUTPA
violation. In addition, the defendant contended that the
plaintiff’s negligence, negligent infliction of emotional
distress and recklessness claims were barred either by
§ 52-584 or, in the alternative, by § 52-577, and that the
CUTPA claim was barred by § 42-110g (f). The trial
court denied both motions and rendered judgment for
the plaintiff in accordance with the verdict. This
appeal followed.7
I
We first address the defendant’s claim that the trial
court improperly denied its request to instruct the jury
that the defendant could not be held liable for negli-
gence unless the plaintiff proved that the defendant’s
conduct created or increased the risk that the plaintiff
would be harmed by Hepp. We agree.
‘‘We begin with the well established standard of
review governing the defendant’s challenge to the trial
court’s jury instruction. Our review of the defendant’s
claim requires that we examine the [trial] court’s entire
charge to determine whether it is reasonably possible
that the jury could have been misled by the omission
of the requested instruction. . . . While a request to
charge that is relevant to the issues in a case and that
accurately states the applicable law must be honored,
a [trial] court need not tailor its charge to the precise
letter of such a request. . . . If a requested charge is
in substance given, the [trial] court’s failure to give a
charge in exact conformance with the words of the
request will not constitute a ground for reversal. . . .
As long as [the instructions] are correct in law, adapted
to the issues and sufficient for the guidance of the jury
. . . we will not view the instructions as improper.’’
(Internal quotation marks omitted.) State v. Devalda,
306 Conn. 494, 505–506, 50 A.3d 882 (2012).
The following legal principles govern the defendant’s
instructional claim in the present case. In Doe v. Saint
Francis Hospital & Medical Center, 309 Conn. 146, 176,
72 A.3d 929 (2013), this court recognized that, under
the provision of the Restatement (Second) of Torts
captioned, ‘‘Risk of Intentional or Criminal Conduct,’’
‘‘[a]n act or an omission may be negligent if the actor
realizes or should realize that it involves an unreason-
able risk of harm to another through the conduct of
the other or a third person which is intended to cause
harm, even though such conduct is criminal.’’ (Internal
quotation marks omitted.) 2 Restatement (Second),
Torts § 302 B (1965). We further observed that, ‘‘as
a general matter, a defendant is not responsible for
anticipating the intentional misconduct of a third party
. . . unless the defendant knows or has reason to know
of the third party’s criminal propensity.’’ (Citation omit-
ted.) Doe v. Saint Francis Hospital & Medical Center,
supra, 172.
This court also recognized in Doe, however, that there
are exceptions to this general rule. ‘‘More specifically,
one of the comments to § 302 B of the Restatement
(Second) . . . explains that ‘[t]here are . . . situa-
tions in which the actor, as a reasonable man, is required
to anticipate and guard against the intentional, or even
criminal, misconduct of others. In general, these situa-
tions arise where . . . the actor’s own affirmative act
has created or exposed the other to a recognizable high
degree of risk of harm through such misconduct, which
a reasonable man would take into account.’ Id., § 302
B, comment (e), p. 90. One situation in which the actor
will be required to guard against the intentional miscon-
duct of another is ‘[w]here the actor acts with knowl-
edge of peculiar conditions which create a high degree
of risk of [such] intentional misconduct.’ Id., § 302 B,
comment (e), example (H), p. 93.’’ (Footnote omitted.)
Doe v. Saint Francis Hospital & Medical Center, supra,
309 Conn. 178–79. For purposes of this exception, ‘‘[t]he
actor’s conduct may be negligent solely because he
should have recognized that it would expose [another]
person . . . to an unreasonable risk of criminal aggres-
sion. If so, it necessarily follows that the fact that the
harm is done by such criminal aggression cannot relieve
the actor from liability . . . . [Moreover], it is not nec-
essary that the conduct should be negligent solely
because of its tendency to afford an opportunity for a
third person to commit the crime. It is enough that
the actor should have realized the likelihood that his
conduct would create a temptation which would be
likely to lead to its commission.8 . . . Stewart v. Feder-
ated Dept. Stores, Inc., 234 Conn. 597, 611–12 n.20, 662
A.2d 753 (1995), quoting 2 Restatement (Second), supra,
§ 448, comment (c), p. 482.’’ (Citation omitted; footnote
added; internal quotation marks omitted.) Doe v. Saint
Francis Hospital & Medical Center, supra, 176–77.
As this court recognized in Doe, ‘‘[i]t is not possible
to state definite rules as to when the actor is required
to take precautions against intentional or criminal mis-
conduct. As in other cases of negligence . . . it is a
matter of balancing the magnitude of the risk against
the utility of the actor’s conduct. Factors to be consid-
ered are the known character, past conduct, and tenden-
cies of the person whose intentional conduct causes the
harm, the temptation or opportunity which the situation
may afford him for such misconduct, the gravity of the
harm which may result, and the possibility that some
other person will assume the responsibility for pre-
venting the conduct or the harm, together with the
burden of the precautions which the actor would be
required to take. Where the risk is relatively slight in
comparison with the utility of the actor’s conduct, he
may be under no obligation to protect the other against
it. [2 Restatement (Second), supra], § 302 B, comment
(f), p. 93.
‘‘Thus, for purposes of this exception, the issue is
twofold: (1) whether the defendant’s conduct gave rise
to a foreseeable risk that the injured party would be
harmed by the intentional misconduct of a third party;
and (2) if so, whether, in light of that risk, the defendant
failed to take appropriate precautions for the injured
party’s protection.’’ (Internal quotation marks omitted.)
Doe v. Saint Francis Hospital & Medical Center, supra,
309 Conn. 179–80.
In the present case, the defendant’s proposed jury
instruction mirrored and accurately stated these princi-
ples and was clearly relevant to the plaintiff’s claim
that the defendant could be held liable for negligence
because, as we held in Doe, the defendant could be held
directly liable for injuries caused by Hepp’s intentional
misconduct only if the defendant’s conduct had
increased the risk to the plaintiff that he would be
subjected to sexual abuse by a fellow member of the
Boy Scouts. Accordingly, we conclude that the trial
court improperly denied the requested charge. State v.
Devalda, supra, 306 Conn. 506 (‘‘a request to charge
that is relevant to the issues in a case and that accurately
states the applicable law must be honored’’ [internal
quotation marks omitted]).
In support of his claim to the contrary, the plaintiff
first contends that the trial court’s jury instruction on
the elements of negligence was proper because it was
substantively identical to the jury instruction that the
trial court gave in Doe v. Saint Francis Hospital &
Medical Center, supra, 309 Conn. 167–68, which this
court approved on appeal. We disagree. In Doe, the
plaintiff, Tim Doe #1 (Doe),9 had been sexually abused
by George E. Reardon, a physician, while Reardon was
engaged in a purported child growth study under the
auspices and on the premises of the defendant, Saint
Francis Hospital and Medical Center (hospital), which
was Reardon’s employer. Id., 149–50. Doe brought an
action against the hospital claiming, among other
things, that ‘‘the hospital committed corporate negli-
gence in that the hospital allowed Reardon to conduct
a [child] growth study without establishing protocols,
rules or guidelines and violated its own rules by failing
to properly monitor and supervise Reardon in connec-
tion with the growth study so as to prevent injury to
the minor subjects of the study . . . .’’ (Internal quota-
tion marks omitted.) Id., 156–57. At trial, the hospital
requested that the trial court instruct the jury that, to
prevail on his claim, Doe ‘‘must prove that [the hospital]
had either actual or constructive notice that . . . Rear-
don had a propensity to sexually abuse children before
[Doe] was abused by [him].’’ (Internal quotation marks
omitted.) Id., 166. The trial court denied the request
and gave a standard negligence instruction. Id., 166–67.
The jury returned a verdict for Doe and the hospital
appealed to this court claiming that the trial court
improperly had denied its requested jury instruction.
Id., 154.
A majority of this court concluded in Doe that the
instruction requested by the hospital was not an accu-
rate statement of the law, because, as we previously
have explained in this opinion, a third party’s propensity
to engage in misconduct is not the only evidence that
can establish the foreseeability of that misconduct.
Accordingly, we concluded in Doe that the failure to
give the instruction was not improper. Id., 196–98.
Indeed, we concluded that giving the instruction would
have been improper because it ‘‘would have prevented
[Doe] from establishing the foreseeability of Reardon’s
sexual misconduct on the basis of the other evidence
of foreseeability on which [Doe] had asked the jury to
rely . . . .’’ Id., 190–92. We further observed in Doe
that, as far as it went, the instruction that the trial court
gave the jury was a correct statement of the law. Id.,
192 n.38. Accordingly, we rejected the hospital’s claim.
Id., 196–98.
In the present case, the plaintiff contends that, as in
Doe, the trial court’s instruction was a correct statement
of the law as far as it went and, therefore, the court
properly denied the defendant’s request to charge.
Unlike in Doe, however, the defendant in the present
case requested an instruction that was an accurate
statement of the law and that would not have prevented
the plaintiff from establishing the foreseeability of
Hepp’s misconduct on the basis of evidence other than
Hepp’s personal propensity to engage in sexual abuse.
In fact, the defendant requested a statement of the law
that this court explicitly adopted in Doe. Accordingly,
the present case is distinguishable from Doe because
the defendant requested an accurate statement of the
law that was relevant to the issues in the case. We
conclude, therefore, that the trial court improperly
denied the defendant’s request to instruct the jury that
the defendant could not be held liable for negligence
unless the plaintiff proved that the defendant’s conduct
created or increased the risk that the plaintiff would
be harmed by Hepp.10
At oral argument before this court, the plaintiff fur-
ther contended that the jury instructions that the defen-
dant requested would have been misleading because
several of the factors that the defendant referred to are
not present here. Specifically, the plaintiff contended
that, because he made no claim that the defendant was
on notice that ‘‘the known character, past conduct, and
tendencies of Hepp [or] the temptation or opportunity
which the defendant’s conduct may afford him for such
behavior’’; (emphasis added); created an increased risk
of harm to the plaintiff, those factors were irrelevant.
Again, we are not persuaded. This court held in Doe
that the known propensities of the individual who
engaged in intentional misconduct is a factor that the
jury properly may consider when determining whether a
defendant negligently failed to take precautions against
the misconduct. Doe v. Saint Francis Hospital & Medi-
cal Center, supra, 309 Conn. 179 (‘‘[f]actors to be consid-
ered are the known character, past conduct, and
tendencies of the person whose intentional conduct
causes the harm’’ [internal quotation marks omitted]).11
The factor does not become irrelevant merely because it
favors the defendant. Accordingly, we reject this claim.
II
We next address the defendant’s contention that the
trial court improperly rejected its claim that it had no
duty to protect the plaintiff from Hepp’s intentional
misconduct because the defendant did nothing to
increase the risk of harm to the plaintiff and the harm
was not reasonably foreseeable. We disagree.
Although the defendant frames this claim as involving
a question about the existence of a legal duty, it con-
cedes that it would have had a duty to protect the
plaintiff if Hepp’s misconduct had been foreseeable
under the factors for determining the foreseeability of
intentional misconduct of a third party set forth in Doe.
See id., 179–80. Thus, the essence of the defendant’s
claim is that the plaintiff failed to present sufficient
evidence in support of those factors. Accordingly, we
focus our analysis on the question of whether the plain-
tiff established a prima facie case of negligence under
Doe.12 This is a question of law subject to plenary review.
Winn v. Posades, 281 Conn. 50, 55, 913 A.2d 407 (2007)
(‘‘[w]hether the plaintiff has established a prima facie
case entitling the plaintiff to submit a claim to a trier
of fact is a question of law over which our review is
plenary’’ [internal quotation marks omitted]).
The defendant first contends that the plaintiff was
required to present evidence that the defendant’s affir-
mative acts increased the risk of harm to the plaintiff,
and that evidence of a failure to act is not sufficient.
See Doe v. Saint Francis Hospital & Medical Center,
supra, 309 Conn. 179 (actor is required to guard against
intentional misconduct of other when ‘‘the actor’s own
affirmative act has created or exposed the other to a
recognizable high degree of risk of harm through such
misconduct’’ [internal quotation marks omitted]). The
defendant contends that the plaintiff presented no evi-
dence of any such affirmative acts by the defendant.
The plaintiff contends that, to the contrary, there was
evidence that the defendant engaged in affirmative acts
that increased the risk of harm and, even if there were
no such evidence, omissions may form the basis of a
negligence claim. Sherwood v. Danbury Hospital, 252
Conn. 193, 205, 746 A.2d 730 (2000) (‘‘wrongful conduct
may include acts of omission as well as affirmative acts
of misconduct’’ [internal quotation marks omitted]).
We agree with the plaintiff. The plaintiff presented
evidence that the defendant engaged in the affirmative
acts of promoting and endorsing Boy Scout activities,
such as overnight camping, that created opportunities
for sexual abuse. In addition, the plaintiff presented
evidence that the defendant knew of numerous
instances of sexual abuse during such activities. We
conclude that this evidence was sufficient to establish
a prima facie case that the defendant ‘‘should have
realized the likelihood that [its] conduct would create
a temptation which would be likely to lead to [sexual
abuse].’’ (Internal quotation marks omitted.) Doe v.
Saint Francis Hospital & Medical Center, supra, 309
Conn. 176–77; see Vendrella v. Astriab Family Ltd.
Partnership, 311 Conn. 301, 338, 87 A.3d 546 (2014)
(‘‘the determination as to whether a particular risk is
unreasonable is to be left to the jury when reasonable
minds could reach different conclusions’’).
We also note that the same set of facts may support
both a claim of negligent affirmative acts and a claim
of negligent omissions, and the choice of how to plead
a case is up to the plaintiff. For example, the plaintiff
in the present case could have claimed either that: (1)
by engaging in the affirmative act of promoting certain
activities, despite its knowledge that those activities
increased the risk that participants would be subject
to sexual abuse, the defendant negligently created an
unreasonable risk of harm to the plaintiff; or (2) having
created an unreasonable risk that participants in certain
activities would be subject to sexual abuse, the defen-
dant was required to take affirmative steps to guard
against the risk—such as educating the participants
about the risk—and negligently failed to do so. Cf. Doe
v. Saint Francis Hospital & Medical Center, supra, 309
Conn. 179 (actor who acts with knowledge of conditions
that increase risk of intentional misconduct is ‘‘required
to take precautions against intentional or criminal mis-
conduct’’ [internal quotation marks omitted]). Accord-
ingly, we do not agree with the defendant that omissions
cannot provide the basis for a negligence claim under
Doe as a matter of law.13
The defendant next claims that the plaintiff failed
to present evidence of ‘‘peculiar conditions’’ because
‘‘[t]here was nothing peculiar about any of the [s]cout-
ing activities discussed in this case.’’ See id. (‘‘[o]ne
situation in which the actor will be required to guard
against the intentional misconduct of another is [w]here
the actor acts with knowledge of peculiar conditions
which create a high degree of risk of [such] intentional
misconduct’’ [internal quotation marks omitted]). We
disagree. In this context, ‘‘peculiar’’ simply means that
the distinctive characteristics of the conditions created
an unreasonable risk of intentional misconduct by a
third party.14 There is no requirement that the conditions
be ‘‘peculiar’’ in the sense that they are odd or strange.
There also is no requirement that the ‘‘peculiar condi-
tions’’ constitute a departure from ordinary condi-
tions.15 Accordingly, we conclude that a jury reasonably
could find that the opportunity for a group of minors,
who are either unsupervised or can easily evade super-
vision, to spend extended periods of time together in
remote and secluded places constitutes a ‘‘peculiar con-
dition’’ under Doe.
The defendant next claims that the plaintiff failed to
establish a prima facie case that there was a ‘‘high
degree of risk’’ of sexual misconduct during scouting
activities; see Doe v. Saint Francis Hospital & Medical
Center, supra, 309 Conn. 179; because ‘‘[t]here was no
evidence at trial that the risk of molestation in the
Boy Scouts was any higher than it was in the general
public.’’16 Accordingly, it contends, ‘‘if sexual abuse is
found to be reasonably foreseeable in [s]couting, then
it was reasonably foreseeable everywhere. That cannot
be the law.’’ We disagree. Opportunities for groups of
minors, who are either unsupervised or can easily evade
supervision, to spend extended periods of time together
in remote and secluded places are not ‘‘everywhere.’’
Even if the percentage of participants in the Boy Scouts
who were sexual predators was no greater than the
percentage of sexual predators in the general popula-
tion, a jury reasonably could find that these activities
provided participants with a greater opportunity to
engage in sexual abuse. A jury also could reasonably
infer that this increased opportunity would, in fact,
attract a disproportionate number of individuals with
sexually predatory inclinations.17 Accordingly, although
the plaintiff did not present evidence of the precise
mathematical degree of the risk of sexual misconduct
created by such activities, a jury reasonably could infer
that promoting such activities increased the risk to an
unreasonable degree and that the defendant knew or
should have known of the increased risk. Of course,
the defendant is free to present countervailing evidence
and to argue to the jury on remand that there was no
increased risk, that, if there was an increased risk, it
did not know and had no reason to know of the
increased risk, or that any increase in risk was not
unreasonable in light of the social utility of the
activities.
To the extent that the defendant contends that it
should be categorically exempt from liability for negli-
gent conduct that increases the risk of intentional mis-
conduct by others as a matter of law because the
benefits that its activities and programs provide to boys
and adolescents outweigh any risks, we disagree. The
jury not only is required to weigh the benefits of Boy
Scout activities against any risks when determining
whether the defendant was negligent, it must also con-
sider the extent to which taking precautions, such as
educating participants about the risks of participation,
would burden the defendant. See Doe v. Saint Francis
Hospital & Medical Center, supra, 309 Conn. 179–80
(jury must consider ‘‘the burden of the precautions
which the actor would be required to take’’ [internal
quotation marks omitted]). Even if we were to agree
with the defendant that the benefits of participating in
Boy Scout activities outweigh the risks as a matter of
law and, therefore, the defendant was not required to
stop promoting such activities—a question that we need
not decide here—we do not agree that a reasonable
person would be compelled to conclude that taking
precautions against the risks would have been so unduly
burdensome that the defendant reasonably could not
have been expected to do so.18 Because this is a question
on which reasonable people may disagree, it is a ques-
tion for the jury. See id., 180 (whether defendant may be
held liable for conduct that increases risk of intentional
misconduct by third party ‘‘is fact intensive, and its
resolution will depend on the nature and gravity of the
risk posed by the potential misconduct of the third
party’’ and other factors set forth in § 302 B, comment
(f) of the Restatement [Second], supra, which include
utility of actor’s conduct and extent to which taking
precautions would burden actor). Accordingly, we con-
clude that, under the factors set forth in Doe v. Saint
Francis Hospital & Medical Center, supra, 179–80, the
plaintiff has established a prima facie case that the
defendant’s conduct created an unreasonable risk that
participants in the Boy Scouts, like the plaintiff, would
be subject to sexual abuse.
III
We next address the defendant’s claim that the plain-
tiff did not present sufficient evidence to support a
finding that the defendant’s conduct caused the plain-
tiff’s personal injuries. Specifically, the defendant con-
tends that, ‘‘[s]ince there is no evidence that the rate
of sexual abuse in [s]couting is any higher than else-
where in society, there is no reason to suppose that,
had the [defendant] said something on the subject, the
plaintiff’s parents or the [local council] would have
taken any action to prevent the abuse.’’ We concluded
in part II of this opinion, however, that the plaintiff
has made out a prima facie case that the defendant’s
negligent conduct increased the risk that the plaintiff
would be subject to sexual abuse and that the defendant
negligently failed to take precautions against this risk.
Under Doe, this is sufficient to establish causation. See
Doe v. Saint Francis Hospital & Medical Center, supra,
209 Conn. 176 (‘‘[t]he actor’s conduct may be negligent
solely because he should have recognized that it would
expose [another] person . . . to an unreasonable risk
of criminal aggression’’ [internal quotation marks omit-
ted]). Accordingly, we reject this claim.
IV
We next address the defendant’s claim that the plain-
tiff failed to establish a prima facie case that the defen-
dant’s conduct was reckless. We disagree.
‘‘Recklessness requires a conscious choice of a
course of action either with knowledge of the serious
danger to others involved in it or with knowledge of
facts which would disclose this danger to any reason-
able man, and the actor must recognize that his conduct
involves a risk substantially greater . . . than that
which is necessary to make his conduct negligent. . . .
More recently, we have described recklessness as a
state of consciousness with reference to the conse-
quences of one’s acts. . . . It is more than negligence,
more than gross negligence. . . . The state of mind
amounting to recklessness may be inferred from con-
duct. But, in order to infer it, there must be something
more than a failure to exercise a reasonable degree
of watchfulness to avoid danger to others or to take
reasonable precautions to avoid injury to them. . . .
Wanton misconduct is reckless misconduct. . . . It is
such conduct as indicates a reckless disregard of the
just rights or safety of others or of the consequences
of the action.’’ (Internal quotation marks omitted.) Doe
v. Hartford Roman Catholic Diocesan Corp., 317 Conn.
357, 382, 119 A.3d 462 (2015).
In the present case, the plaintiff presented evidence
that would support a finding that the defendant was
aware of numerous instances of sexual abuse of partici-
pants in the Boy Scouts during Boy Scout activities in
the years preceding Hepp’s sexual abuse of the plaintiff.
The plaintiff also presented evidence that there were
precautions that the defendant reasonably could have
taken to prevent such sexual abuse, and that it failed
to do so. On the basis of this evidence, reasonable minds
could disagree as to whether the risk of sexual abuse
was sufficiently great such that the defendant either
knew or should have have known that its failure to take
those precautions would expose Boy Scout participants
to a great risk of harm. Accordingly, we conclude that
the issue is one for the jury. See Vendrella v. Astriab
Family Ltd. Partnership, supra, 311 Conn. 338 (issue
should be presented to jury when reasonable minds
could reach different conclusions).
V
We next address the defendant’s claim that the trial
court improperly determined that the plaintiff’s negli-
gence and recklessness claims are not barred by § 52-
584. Specifically, the defendant contends that, contrary
to the trial court’s conclusion that the statute of limita-
tions set forth in § 52-577d applies to the plaintiff’s
claims, § 52-577d applies only to intentional torts, i.e.,
to claims against the perpetrator of a sexual assault on
a minor, while § 52-584 continues to apply to claims
against parties whose negligent conduct is alleged to
have caused injury to the plaintiff when he was a minor.
We disagree.
Resolution of this issue requires us to construe the
relevant statutes and our review is, therefore, plenary.
Lombard v. Edward J. Peters, Jr., P.C., 79 Conn. App.
290, 294, 830 A.2d 346 (2003). ‘‘In making such determi-
nations, we are guided by fundamental principles of
statutory construction.’’ In re Matthew F., 297 Conn.
673, 688, 4 A.3d 248 (2010); see General Statutes § 1-
2z.19 ‘‘[O]ur fundamental objective is to ascertain and
give effect to the apparent intent of the legislature.’’
(Internal quotation marks omitted.) Testa v. Geressy,
286 Conn. 291, 308, 943 A.2d 1075 (2008). ‘‘When a
statute is not plain and unambiguous, we [may] look
for interpretive guidance to the legislative history and
circumstances surrounding its enactment, to the legisla-
tive policy it was designed to implement, and to its
relationship to existing legislation and [common-law]
principles governing the same general subject matter
. . . .’’ (Internal quotation marks omitted.) Lieberman
v. Aronow, 319 Conn. 748, 757, 127 A.3d 970 (2015).
We begin our analysis with the language of the rele-
vant statutes. Section 52-577d provides: ‘‘Notwithstand-
ing the provisions of section 52-577, no action to recover
damages for personal injury to a minor, including emo-
tional distress, caused by sexual abuse, sexual exploita-
tion or sexual assault may be brought by such person
later than thirty years from the date such person attains
the age of majority.’’ Section 52-577 provides: ‘‘No action
founded upon a tort shall be brought but within three
years from the date of the act or omission complained
of.’’ Section 52-584 provides in relevant part: ‘‘No action
to recover damages for injury to the person . . .
caused by negligence, or by reckless or wanton miscon-
duct . . . shall be brought but within two years from
the date when the injury is first sustained or discov-
ered . . . .’’
The defendant contends that, because § 52-577d
expressly provides that § 52-577, which applies to inten-
tional torts, does not apply to claims involving personal
injury to a minor caused by sexual abuse, and § 52-577d
makes no mention of § 52-584, which applies to claims
of personal injury arising from negligence or reckless-
ness, claims that fall within § 52-584 are not subject to
§ 52-577d.20 The all-encompassing language of § 52-577d
providing that ‘‘no action to recover damages for per-
sonal injury to a minor . . . caused by sexual abuse’’;
(emphasis added); however, supports an interpretation
that negligence and recklessness claims would also be
subject to the thirty year statute of limitations. See
Almonte v. New York Medical College, 851 F. Supp. 34,
37 (D. Conn. 1994) (‘‘the unambiguous language of [§ 52-
577d] indicates that the statutory focus is on actions
flowing from a particular type of harm’’). Accordingly,
we conclude that the reference to § 52-577 in § 52-577d
does not compel the interpretation urged by the defen-
dant but, instead, merely creates ambiguity as to
whether the legislature intended § 52-577d to apply to
claims that would otherwise be subject to § 52-584. See
Doe v. Indian Mountain School, Inc., 921 F. Supp. 82,
83 (D. Conn. 1995) (‘‘[t]he introductory clause of § 52-
577d, by referring to . . . § 52-577 without referring to
. . . § 52-584, tends to create some ambiguity concern-
ing the statute’s scope’’). Taking into consideration the
statute’s language, its legislative history, the circum-
stances surrounding its enactment, the legislative policy
it was designed to implement and the legislature’s acqui-
escence to the application of § 52-577d to negligence
claims for more than twenty years, we are persuaded
for the following reasons that the legislature intended
for § 52-577d to apply to claims that otherwise would
be subject to § 52-584.
With respect to the statutory language, § 52-577d
plainly is not concerned with particular types of defen-
dants, but with providing a recovery for a particular
type of injury, namely, ‘‘personal injury to a minor,
including emotional distress, caused by sexual abuse,
sexual exploitation or sexual assault . . . .’’ See
Almonte v. New York Medical College, supra, 851 F.
Supp. 37 (§ 52-577d ‘‘does not expressly limit its applica-
tion to offenders; rather, reference to the unambiguous
language of the statute indicates that the statutory focus
is on actions flowing from a particular type of harm,
and not parties’’ [emphasis omitted]). If the legislature
had intended to limit the application of § 52-577d to
claims against perpetrators, and to subject negligence
claims against other persons or entities whose conduct
also legally caused such an injury to the twenty-eight
year shorter statute of limitations contained in § 52-
584, it could have simply said so.21 See Doe v. Indian
Mountain School, Inc., supra, 921 F. Supp. 84 (‘‘If the
legislature wanted to preclude application of the
extended limitations period to all the types of claims
enumerated in § 52-584, notwithstanding its objective
of providing meaningful remedies to minor victims of
sexual abuse, it probably would have said so explicitly,
as it has in establishing other statutes of limitations.
See [General Statutes § 52-576 (c) (‘[t]he provisions of
this section [relating to actions for an account or on
any simple or implied contract] shall not apply . . . to
any cause of action governed by article 2 of title 42a’);
General Statutes § 52-581 (b) (‘[t]his section [relating
to actions on oral contracts] shall not apply to causes
of action governed by article 2 of title 42a’].’’).
In addition to the absence of any language in § 52-
577d limiting its application to actions against perpetra-
tors, § 52-577d specifically applies to tort claims for
emotional distress which, under our common law,
includes claims for both intentional and negligent con-
duct. Thus, the specific inclusion of a claim that is not
limited to intentional conduct also strongly suggests
that the legislature intended to include negligence
claims within the scope of § 52-577d.
The legislative history of § 52-577d and the overall
legislative policy that the statute was designed to imple-
ment also support the conclusion that it was intended
to apply to negligence claims involving the sexual
assault of minors. One of the proponents of the legisla-
tion that was codified as § 52-577d22 stated during the
legislative debate that juvenile victims of sexual abuse
frequently have little control over their own lives and,
therefore, cannot bring an action for damages while
they are still juveniles, especially when the person who
is responsible for the sexual abuse is also the person
who has control over the child. See 29 H.R. Proc., Pt. 12,
1986 Sess., p. 4388, remarks of Representative Richard
Tulisano. The purpose of § 52-577d was to afford a
person who was a juvenile victim of sexual abuse to
‘‘[gain] some control’’ after he or she reaches the age
of majority and ‘‘to seek some sense of satisfaction and
some sense of being able to say [he or she has] been
made whole through their own actions . . . .’’ Id.,
remarks of Representative Tulisano; see also Roberts
v. Caton, 224 Conn. 483, 493, 619 A.2d 844 (1993) (‘‘one
object of § 52-577d is to afford a plaintiff sufficient time
to recall and come to terms with traumatic childhood
events before he or she must take action’’). Moreover,
during the debates on the 2002 amendment to § 52-
577d; see footnote 22 of this opinion; Representative
Michael Lawlor stated broadly that the statute ‘‘applies
to claims or causes of action [arising] from’’ sexual
abuse of a minor. 45 H.R. Proc., Pt. 13, 2002 Sess., p.
3955. In addition, at the hearings before the Judiciary
Committee, Helen Meganigle, the chairperson of the
Victims Rights Committee of the Connecticut Bar Asso-
ciation, referred to the sexual abuse scandal in the
Catholic Church, and that church’s responsibility for
failing to take steps to prevent the abuse, when she
urged the legislature to extend the statute of limitations.
Conn. Joint Standing Committee Hearings, Judiciary,
Pt. 6, 2002 Sess., p. 1772 (‘‘[w]hen the Catholic Church
[failed to take steps to address the problem of sexual
abuse by clergy], [it] committed a gross error of judg-
ment and now something has to be done to address the
issue’’). A conclusion that § 52-577d does not apply to
claims involving negligent conduct would be totally
inconsistent with this legislative intent to afford an
opportunity for minor victims of sexual assaults caused
by such institutional negligence to be made whole.23
We simply can perceive no legitimate reason why the
legislature would have wanted to exempt persons or
entities whose negligent conduct legally caused a plain-
tiff’s injuries from also being held liable for their mis-
conduct.
Finally, over the last twenty-two years, there have
been numerous decisions in Connecticut courts holding
that negligence claims against nonperpetrators were
subject to the extended statute of limitations contained
in § 52-577d.24 During that time, the legislature has
amended that statute to extend the limitations period
to thirty years from the date that the plaintiff reaches
the age of majority. See footnote 22 of this opinion.
Despite the existence of numerous high profile cases
involving claims of personal injury caused by sexual
abuse against nonperpetrators, however; see, e.g.,
Rosado v. Bridgeport Roman Catholic Diocesan Corp.,
276 Conn. 168, 172, 884 A.2d 981 (2005) (case involved
‘‘twenty-three lawsuits [in which nonperpetrator was
named defendant] alleging sexual abuse of minors by
clergymen employed by the Bridgeport Roman Catholic
Diocesan Corporation,’’ all of which had been brought
in the mid-1990s); and despite numerous trial court
decisions that have held that § 52-577d applies to negli-
gence claims; see footnote 24 of this opinion; the legisla-
ture did not amend § 52-577d to limit its application to
claims against perpetrators. Thus, we may presume that
the legislature acquiesces in this interpretation of the
statute. See State v. Salamon, 287 Conn. 509, 525, 949
A.2d 1092 (2008) (‘‘[l]egislative concurrence is particu-
larly strong [when] the legislature makes unrelated
amendments in the same statute’’ subsequent to judicial
interpretation [internal quotation marks omitted]).
In light of this strong evidence of the legislature’s
intent that § 52-577d should be applied to all actions
‘‘to recover damages for personal injury to a minor . . .
caused by sexual abuse,’’ not just to claims against
perpetrators, we cannot agree with the defendant that
the legislature’s use of the phrase ‘‘[n]otwithstanding
the provisions of section 52-577’’ was intended to limit
the application of the statute exclusively to perpetra-
tors. Rather, we are convinced that, when the legislature
enacted § 52-577d, it intended for the statute to apply
to actions sounding in negligence and recklessness and
to carve out such actions from the scope of § 52-584.
Accordingly, we conclude that the trial court properly
determined that § 52-577d applies not only to actions
against the perpetrators of sexual abuse of minors, but
also to actions against parties whose negligent acts or
omissions legally caused the personal injuries suffered
by the victims of such abuse.25
VI
Finally, we address the defendant’s claim that the
trial court improperly determined that the limitations
period set forth in § 52-577d, rather than that set forth
in § 42-110g (f), applied to the plaintiff’s CUTPA claim.
We agree and conclude, therefore, that the defendant
is entitled to summary judgment on the CUTPA count.
‘‘The question of whether a party’s claim is barred
by the statute of limitations is a question of law, which
this court reviews de novo.’’ (Internal quotation marks
omitted.) Watts v. Chittenden, 301 Conn. 575, 582, 22
A.3d 1214 (2011).
This court has not previously considered whether
§ 42-110g (f) applies to a CUTPA claim when the under-
lying claim involves conduct that also gives rise to a
distinct form of remedy that is subject to another statute
of limitations. The Appellate Court has addressed that
question, however, and has concluded that ‘‘[§] 42-110g
(f) applies to all claims brought under CUTPA without
regard to the nature of the underlying unfair trade prac-
tice that has been alleged.’’ Bellemare v. Wachovia
Mortgage Corp., 94 Conn. App. 593, 606–607, 894 A.2d
335 (2006) (rejecting plaintiff’s claim that § 42-110g [f]
did not apply to CUTPA claim arising from violation of
provision of General Statutes § 49-8 [c] authorizing
claim for damages for failure to issue timely release
of satisfied mortgage), aff’d, 284 Conn. 193, 931 A.2d
916 (2007).
We agree with the defendant that the Appellate
Court’s holding in Bellemare is correct and that it is
applicable in the present case. The plaintiff has raised
two distinct claims arising from the same set of alleged
facts, namely a common-law tort claim alleging that he
was personally injured by sexual abuse when he was
a minor as the result of the defendant’s negligence,
and a statutory CUTPA claim pursuant to § 42-110g.26
Accordingly, there simply is no conflict between §§ 52-
577d and 42-110g (f). Rather, § 52-577d applies to the
plaintiff’s tort claims and § 42-110g (f) applies to his
CUTPA claim, in accordance with the intent of the legis-
lature. Indeed, the plaintiff has cited no authority in
support of his claim that a statutory CUTPA action may
be subject to different statutes of limitations depending
on the underlying nature of the alleged unfair trade
practice. In light of this conclusion, we need not address
the defendant’s claim that applying § 52-577d to the
CUTPA claim would deprive the defendant of its due
process rights under the state and federal constitutions.
In support of his claim to the contrary, the plaintiff
relies on the ‘‘well established principle of statutory
interpretation that requires courts to apply the more
specific statute relating to a particular subject matter
in favor of the more general statute that otherwise might
apply in the absence of the specific statute.’’ Housa-
tonic Railroad Co. v. Commissioner of Revenue Ser-
vices, 301 Conn. 268, 301–302, 21 A.3d 759 (2011). This
principle comes into play, however, only when two
statutes of limitations apply to the same claim and,
therefore, both statutes cannot be given full effect. For
example, although the express terms of § 52-584, con-
sidered in isolation, would apply to negligence actions
for personal injury caused by sexual abuse, because
§ 52-577d applies specifically to such actions, and
because both statutes obviously cannot apply to the
same claim, we have concluded that § 52-577d trumps
§ 52-584. As we have explained, however, § 52-577d and
§ 42-110g (f) do not conflict because they apply to sepa-
rate and distinct claims and, therefore, we are not
required to choose between them. Accordingly, we
reject the plaintiff’s claim.
The judgment is reversed and the case is remanded
with direction to grant the defendant’s motion for sum-
mary judgment on the CUTPA count and to render
partial judgment thereon for the defendant, and for a
new trial on the remaining counts of the complaint in
accordance with this opinion.
In this opinion SHELDON, J., concurred, and
ZARELLA, ESPINOSA and ROBINSON, Js., concurred
in parts I and VI of the opinion and with the disposition
of reversal of the judgment and remand for a new trial.
* This appeal was originally scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Zarella, Eveleigh,
McDonald, Espinosa and Robinson. Although Justices Eveleigh and Espinosa
were not present when the case was argued before the court, they have
read the briefs and appendices, and listened to a recording of oral argument
prior to participating in this decision. Thereafter, the court, pursuant to
Practice Book § 70-7 (b), sua sponte, ordered that the case be considered
en banc. Accordingly, Judge Sheldon was added to the panel and has read
the briefs and appendices, and listened to a recording of oral argument
prior to participating in this decision.
1
Hereinafter, we occasionally refer to the defendant and its subsidiary
local organizations and operations collectively as the Boy Scouts when
appropriate for the context.
The original complaint named The Boys Scouts of America Corporation,
Fairfield County Council of Boy Scouts of America, Inc. (Fairfield County
Council), and Connecticut Yankee Council, Inc. (Connecticut Yankee Coun-
cil), as defendants. Fairfield County Council was merged with Connecticut
Yankee Council in 1998, and was not a separate party at trial. The jury
returned a verdict in favor of Connecticut Yankee Council and that entity
is not a party to this appeal. For purposes of clarity, references herein to
the defendant are to The Boy Scouts of America Corporation only.
2
The trial court granted permission to the plaintiff to use a pseudonym
for purposes of bringing his action against the defendant pursuant to Practice
Book § 11-20A (h) (2). We decline to identify the plaintiff in accordance
with our policy of protecting the privacy interests of victims of sexual abuse.
See General Statutes § 54-86e.
3
The defendant appealed from the judgment of the trial court to the
Appellate Court and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-2.
4
Although it appears that the defendant still maintains ineligible volunteer
files, its current practices are not at issue in this appeal.
5
The Scout Handbooks provided: ‘‘Patrols do lots of things outdoors.
They go hiking and camping. These hikes and camps must be approved by
your [s]coutmaster ahead of time.
‘‘Some patrols go overnight camping by themselves. Your patrol can, too,
if you have a patrol leader your [s]coutmaster will approve as an overnight
camping leader.’’
6
The trial court instructed the jury that ‘‘[c]ommon-law negligence is the
failure to use reasonable care under the circumstances. Reasonable care is
the care that a reasonably prudent person would use in the same circum-
stances.
‘‘In determining the care that a reasonably prudent person would use in
the same circumstances, you should consider all the circumstances which
were known or should have been known to the defendant at the time of
the conduct in question.
‘‘Whether care is reasonable depends upon the dangers that a reasonable
person would perceive in those circumstances. It is common sense that
the more dangerous the circumstances, the greater the care that ought to
be exercised.
‘‘A duty to use care exists when a reasonable person, knowing what the
[defendant] here either knew or should have known at the time of the alleged
conduct, would foresee that the harm of the same general nature as that
which occurred here was likely to result from that conduct. If harm of the
same general nature as that which occurred here was foreseeable, it does
not matter if the manner in which the harm that actually occurred was
unusual, bizarre or unforeseeable.’’
7
After the defendant filed its appeal, we granted permission to file a joint
amicus curiae brief in support of the plaintiff’s position to the National
Center for Victims of Crime, the National Crime Victim Law Institute and
the Survivors Network of Those Abused by Priests.
8
In other words, conduct is not necessarily negligent simply because it
affords an opportunity for another to commit a crime. If the actor should
have realized that his conduct would create a significant temptation to
commit the crime, however, the actor may be found negligent.
9
The plaintiff in Doe used a pseudonym. See Doe v. Saint Francis Hospi-
tal & Medical Center, supra, 309 Conn. 150 n.1.
10
In his concurring and dissenting opinion, Justice Eveleigh contends
that any impropriety in the jury charge was harmless because the plaintiff
presented evidence to support each of the Doe factors, because the court’s
jury instruction on negligence ‘‘encompasse[d] the substance of’’ the plain-
tiff’s proposed charge, and because the court’s instruction on superseding
cause was ‘‘substantially similar’’ to the defendant’s proposed charge. We
disagree. The defendant requested a jury instruction on duty, i.e., that ‘‘the
[defendant is] not responsible for anticipating the intentional misconduct
. . . unless [it] knew or had reason to know of Hepp’s propensity for miscon-
duct,’’ which is not the same as an instruction on causation, i.e., that ‘‘the
defendant did not legally cause the injury even though [its] negligence was
a substantial factor in bringing the injury about.’’ (Emphasis added.) In
other words, the defendant did not concede that it was negligent and then
contend that its negligence did not cause the plaintiff’s injury; rather, it
claimed that, because there was no evidence that its own conduct created
or increased the risk that the plaintiff would be subject to sexual abuse, it
had no duty to take steps to prevent such abuse and, therefore, it was not
negligent. Accordingly, the instruction given by the trial court was not
substantially similar to the instruction that the defendant requested. Because
the jury was not instructed that it must find that the defendant’s conduct
created or increased the risk that the plaintiff would be sexually abused,
we simply cannot know whether the jury made that essential finding. We
conclude, therefore, that the improper jury instruction cannot be consid-
ered harmless.
11
We do not suggest that the known propensity of the specific individual
defendant to engage in misconduct is the sole factor that the jury may
consider in determining whether a defendant may be held liable for another’s
intentional misconduct. Rather, as we recognized in Doe, ‘‘the actor as a
reasonable man is required to know the habits and propensities of human
beings and to anticipate the customary or normal acts of others.’’ (Emphasis
added; internal quotation marks omitted.) Doe v. Saint Francis Hospital &
Medical Center, supra, 309 Conn. 180 n.27. In this context, ‘‘customary or
normal acts’’ include acts that may be tortious or criminal. See 2 Restatement
(Second), supra, § 290, comment (m), pp. 52–53 (‘‘A reasonable man is a
standardized human being living in an actual world and not in Utopia. The
actor, as a reasonable man, must therefore take life as it is and not as it
should be, and must realize the likelihood that third persons may act in a
variety of ways . . . which are not only morally but legally wrongful.’’).
Moreover, if a defendant knew or reasonably should have known that a
specific activity attracts a subset of human beings with particular propensi-
ties, the jury may consider that factor when determining whether a particular
harm is a foreseeable result of the activity. See id., § 290, comment (k), p.
51 (‘‘[t]he actor as a reasonable man should also know the peculiar habits,
traits, and tendencies which are known to be characteristic of certain well-
defined classes of human beings’’).
12
When the trial court has improperly instructed the jury and the improper
instruction cannot be considered harmless because there is no way of know-
ing whether the finder of fact would have reached the same conclusion if
it had been properly instructed, the proper remedy generally is to remand
the case to the trial court for a new trial without considering whether the
evidence presented at the first trial was sufficient to support the verdict.
Cf. McDermott v. State, 316 Conn. 601, 611, 113 A.3d 419 (2015) (‘‘[w]e have
often stated that, a party is generally entitled to a new trial when, on appeal,
a different legal standard is determined to be required, unless we conclude
that, based on the evidence, a new trial would be pointless’’); Deroy v. Estate
of Baron, 136 Conn. App. 123, 127, 43 A.3d 759 (2012) (‘‘[w]hen an incorrect
legal standard is applied, the appropriate remedy is to reverse the judgment
of the trial court and to remand the matter for further proceedings’’). Argua-
bly, however, that principle applies only when the proper legal standard
was not clear at the time of the original trial or when we have changed the
legal standard on appeal. See McDermott v. State, supra, 611 (case is
remanded for new trial when ‘‘any insufficiency in proof was caused by the
subsequent change in the law . . . [and] not the [party’s] failure to muster
evidence’’ [internal quotation marks omitted]); but see Deroy v. Estate of
Baron, supra, 130 (case remanded for new trial when trial court failed to
apply established legal standard). Accordingly, under the circumstances of
the present case, in which the plaintiff arguably was on notice that Doe
provided the proper standard, in fairness to the defendant, and out of an
abundance of caution, we conclude that we should address the defendant’s
sufficiency of the evidence claims.
13
See Juarez v. Boy Scouts of America, Inc., 81 Cal. App. 4th 377, 412,
97 Cal. Rptr. 2d 12 (2000) (evidence that defendant, Boy Scouts of America,
Inc., had ‘‘failed to take reasonable steps to see that the information in the
[Youth Protection Program] was likely to be communicated to the scouts,
parents, or adult leaders of’’ its constituent troops supported negligence
claim).
14
See Webster’s New World Dictionary of the American Language (2d
College Ed. 1972) (defining ‘‘peculiar’’ as adjective as: ‘‘1. of only one person,
thing, group, country, etc.; distinctive; exclusive 2. particular; unique; special
[a matter of peculiar interest] 3. out of the ordinary; queer; odd; strange’’
[emphasis in original]).
15
The Restatement (Second) provides the following illustration of a ‘‘pecu-
liar [condition] which create[s] a high degree of risk of intentional miscon-
duct’’: ‘‘The employees of the A Railroad are on strike. They or their
sympathizers have torn up tracks, misplaced switches, and otherwise
attempted to wreck trains. A fails to guard its switches, and runs a train,
which is derailed by an unguarded switch intentionally thrown by strikers
for the purpose of wrecking the train. B, a passenger on the train, and C,
a traveler upon an adjacent highway, are injured by the wreck. A Company
may be found to be negligent toward B and C.’’ 2 Restatement (Second),
supra, § 302 B, comment (e), example (H), illustration (15), p. 93. We see
no reason why the result would be different if the A Railroad’s train lines
were continually plagued by train wreckers.
16
We note that, in this context, ‘‘high degree of risk’’ does not mean a
high probability of harm, but merely means that intentional misconduct by
a third party is a foreseeable result of the defendant’s conduct, which is a
question for the jury when reasonable persons could disagree. See Vendrella
v. Astriab Family Ltd. Partnership, supra, 311 Conn. 338 (injury is foresee-
able when there is unreasonable risk that injury will occur and ‘‘the determi-
nation as to whether a particular risk is unreasonable is to be left to the
jury when reasonable minds could reach different conclusions’’); Doe v.
Saint Francis Hospital & Medical Center, supra, 309 Conn. 177–78
(‘‘although a defendant is shielded from liability for the intentional miscon-
duct of a third party outside the scope of the risk created by the defendant’s
conduct, even [t]ortious or criminal acts may . . . be foreseeable, and so
within the scope of the created risk’’ [internal quotation marks omitted]).
17
See Juarez v. Boy Scouts of America, Inc., 81 Cal. App. 4th 377, 403,
97 Cal. Rptr. 2d 12 (2000) (‘‘[t]he [Boy Scouts of America, Inc.,] acknowl-
edge[s], as [it] must, the possibility exists that pedophiles will be attracted
to scouting to gain legitimate access to young boys in order to seduce the
more susceptible ones into sexual activity’’). We see no reason why this
possibility would be limited to adult volunteers and would not be equally
true of older members of the Boy Scouts who have a propensity to sexually
abuse younger members.
18
See Juarez v. Boy Scouts of America, Inc., 81 Cal. App. 4th 377, 409,
97 Cal. Rptr. 2d 12 (2000) (as matter of law, court ‘‘soundly reject[ed] any
contention that the [Boy Scouts of America, Inc.] could avoid all legal
responsibility to incorporate into their program information designed to
prevent a significant risk of harm to the youths it serves on the ground that
any burden imposed would be too onerous’’).
19
General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from the text of the statute itself and its
relationship to other statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratextual evidence of the
meaning of the statute shall not be considered.’’
20
This court previously has held that ‘‘[t]he [three year] limitation of § 52-
577 is applicable to all actions founded upon a tort which do not fall within
those causes of action carved out of § 52-577 and enumerated in § 52-584
or another section.’’ Collens v. New Canaan Water Co., 155 Conn. 477, 491,
234 A.2d 825 (1967). Because intentional torts are not subject to § 52-584
or to any other statute of limitations, they are subject to § 52-577. Watts v.
Chittenden, 301 Conn. 575, 582–83, 22 A.3d 1214 (2011). Conversely, because
claims of personal injury arising from negligent or reckless conduct are
subject to § 52-584, they are not subject to § 52-577.
21
Indeed, almost all of the courts that have concluded that an extended
statute of limitations for claims involving childhood sexual abuse does not
apply to claims against nonperpetrators have been confronted with statutes
that expressly limit their application to claims against perpetrators. See,
e.g., Walker v. Barrett, 650 F.3d 1198, 1209 (8th Cir. 2011) (Texas statute
of limitations for ‘‘[a]ny action to recover damages from injury or illness
caused by childhood sexual abuse’’ was limited to claims against perpetrator
when statute defined ‘‘childhood sexual abuse’’ as ‘‘any act committed by
the defendant’’ that constituted one of several enumerated criminal sex
offenses [emphasis added]); Debbie Reynolds Professional Rehearsal Stu-
dios v. Superior Court, 25 Cal. App. 4th 222, 231, 30 Cal. Rptr. 2d 514 (1994)
(statute of limitations for ‘‘any act committed by a defendant against a
plaintiff . . . and which act would have been proscribed’’ by one of enumer-
ated criminal statutes was limited to claims against perpetrator [emphasis
added]); Kelly v. Marcantonio, 678 A.2d 873, 875–76 (R.I. 1996) (statute of
limitations for ‘‘[a]ll claims or causes of action based on intentional conduct
brought by any person for recovery of damages for injury suffered as a
result of childhood sexual abuse’’ was limited to claims against perpetrators
when statute defined ‘‘childhood sexual abuse’’ as ‘‘any act committed by
the defendant against a complainant’’ [emphasis added]); Bernie v. Blue
Cloud Abbey, 821 N.W.2d 224, 227 (S.D. 2012) (statute of limitations for
‘‘[a]ny civil action based on intentional conduct brought by any person for
recovery of damages for injury suffered as a result of childhood sexual
abuse’’ was limited to claims against perpetrators when statute defined
‘‘childhood sexual abuse’’ as any act committed ‘‘by the defendant against
the complainant . . . [and] which act would have constituted a felony’’
[emphasis in original]); but see Knaus v. Great Crossings Baptist Church,
Inc., Docket No. 2009-CA-000141-MR, 2010 WL 476046, *2 (Ky. App. 2010)
(unpublished decision) (statute of limitations for ‘‘[a]ction relating to child-
hood sexual abuse or childhood sexual assault’’ was limited to claims against
perpetrators), review denied (Ky. October 13, 2010). In contrast, the absence
of language expressly limiting a statute of limitations’ application to claims
against perpetrators has been found to support the interpretation that the
statute applies to nonperpetrators. Stephanie M. v. Coptic Orthodox Patri-
archate Diocese of Southern United States, 362 S.W.3d 656, 659 (Tex. App.
2011) (extended statute of limitations applied to claims against nonperpetra-
tors when there was ‘‘no language restricting [the] particular limitations
statute to certain types of [personal injury] claims,’’ such as intentional tort),
review denied (Tex. September 30, 2011); Sabia v. State, 164 Vt. 293, 309,
669 A.2d 1187 (1995) (extended statute of limitations applied to claims
against nonperpetrators when there was ‘‘nothing in the statutory language
suggesting that the [l]egislature intended to exclude [nonperpetrators] from
the reach of the statute’’); see also Werre v. David, 275 Mont. 376, 383, 913
P.2d 625 (1996) (statute of limitations that applied to ‘‘[a]n action based on
intentional conduct brought by a person for recovery of damages for injury
suffered as a result of childhood sexual abuse’’ was not limited to claims
against perpetrators); Lourim v. Swensen, 328 Or. 380, 390, 977 P.2d 1157
(1999) (‘‘[a]n action for vicarious liability that alleges that an employee
committed child abuse is an ‘action based on conduct that constitutes child
abuse’ under a plain, natural, and ordinary meaning of that phrase’’); C.J.C.
v. Corp. of the Catholic Bishop of Yakima, 138 Wash. 2d 699, 709, 985 P.2d
262 (1999) (same).
We further note that, when a statute of limitations applies to actions that
are ‘‘based on’’ intentional conduct by the perpetrator, or uses language to
that effect, most courts have concluded that the statute applies to nonperpe-
trators. See Werre v. David, supra, 275 Mont. 383 (statute of limitations that
applied to ‘‘[a]n action based on intentional conduct brought by a person
for recovery of damages for injury suffered as a result of childhood sexual
abuse’’ was not limited to claims against perpetrators); Lourim v. Swensen,
supra, 328 Or. 390 (‘‘[a]n action for vicarious liability that alleges that an
employee committed child abuse is an ‘action based on conduct that consti-
tutes child abuse’ under a plain, natural, and ordinary meaning of that
phrase’’); C.J.C. v. Corp. of the Catholic Bishop of Yakima, supra, 138 Wash.
2d 709 (same); but see Knaus v. Great Crossings Baptist Church, Inc.,
supra, 2010 WL 476046, *2 (statute of limitations for ‘‘[a]ction relating to
childhood sexual abuse or childhood sexual assault’’ was limited to claims
against perpetrator). A fortiori, the language of § 52-577d referring to an
‘‘action to recover damages for personal injury to a minor . . . . caused
by sexual abuse’’ clearly evinces a legislative intent that the limitation applies
to all such actions.
22
Number 86-401 of the 1986 Public Acts, § 6, codified as General Statutes
(Rev. to 1987) § 52-577d, provides: ‘‘Notwithstanding the provisions of sec-
tion 52-577 of the general statutes, no action to recover damages for the
personal injury to a minor, including emotional distress, caused by sexual
abuse, sexual exploitation or sexual assault may be brought by such person
no later than two years from the date such person attains the age of majority,
except that no such action may be brought more than seven years from the
date of the act complained of.’’ The statute was amended in 1986 to delete
the second occurrence of the word ‘‘no.’’ Public Acts 1986, No. 86-403, § 104.
In 1991, the statute was amended by changing the limit for recovery from
two years from the date the plaintiff attains the age of majority to seventeen
years from the date the plaintiff attains the age of majority and to delete
the exception providing that no action may be brought within seven years
from the date of the act complained of. Public Acts 1991, No. 91-240. In
2002, the statute was amended to increase the limitations period from seven-
teen years from the date that the plaintiff reaches the age of majority to
thirty years. Public Acts 2002, No. 02-138, § 2.
23
See Sabia v. State, 164 Vt. 293, 309, 669 A.2d 1187 (1995) (‘‘[w]e decline
to read the term ‘against the perpetrator’ into a remedial statute whose
purpose is to benefit victims of childhood sexual abuse, not to punish the
perpetrators of the abuse’’).
24
See Almonte v. New York Medical College, supra, 851 F. Supp. 34; see
also Doe v. Darien Board of Education, Docket No. 3:11CV1581 (JBA), 2013
WL 2047872, *4 (D. Conn. May 14, 2013) (§ 52-577d applies to negligence
claims against nonperpetrators); Doe v. Indian Mountain School, Inc., supra,
921 F. Supp. 83–84 (same); Nutt v. Norwich Roman Catholic Diocese, 921
F. Supp. 66, 72 (D. Conn. 1995) (same); Todd M. v. Richard L., 44 Conn.
Supp. 527, 537, 696 A.2d 1063 (1995); Doe v. Flanigan, Superior Court,
judicial district of Waterbury, Docket No. CV-09-5015462-S (January 9, 2015)
(59 Conn. L. Rptr. 586); Doe No. 2 v. Norwich Roman Catholic Diocesan
Corp., Superior Court, judicial district of Hartford, Docket No. X-07-HHD-
CV-125036425-S (December 2, 2013) (57 Conn. L. Rptr. 342); Doe v. Kennedy,
Superior Court, judicial district of Waterbury, Docket No. CV-09-5013921-S
(November 29, 2012) (55 Conn. L. Rptr. 193); Truex v. Rogers, Superior
Court, judicial district of Hartford, Docket No. CV-04-0833129-S (May 10,
2006) (41 Conn. L. Rptr. 330); Doe v. Burns, Superior Court, judicial district
of Middlesex, Docket No. CV-03-0100215-S (July 19, 2005) (39 Conn. L.
Rptr. 815); Lawson v. Lawson, Superior Court, judicial district of Litchfield,
Docket No. CV-99-0080780-S (January 23, 2001) (29 Conn. L. Rptr. 264); Doe
v. Boy Scouts of America, Superior Court, judicial district of Stamford-
Norwalk, Docket No. CV-94-0141153-S, 1999 WL 61473, *2 (January 29, 1999);
Moen v. Baransky, Superior Court, judicial district of Ansonia-Milford,
Docket No. CV-96-0054578-S (October 10, 1996) 20 Conn. L. Rptr. 501; Doe
v. Norwich Roman Catholic Diocesan Corp., Superior Court, judicial district
of Middletown, Docket No. CV-9369529 (June 27, 1996) (17 Conn. L. Rptr.
267); Milhomme v. Levola, Superior Court, judicial district of Windham,
Docket No. CV-94-0048326-S (July 14, 1995) (14 Conn. L. Rptr. 517); Coburn
v. Ordner, Superior Court, judicial district of Fairfield, Docket No. CV-93-
0306715-S (March 22, 1995) (14 Conn. L. Rptr. 9); See v. Bridgeport Roman
Catholic Diocesan Corp., Superior Court, judicial district of Fairfield, Docket
No. CV-93-0300948-S (September 13, 1993) (10 Conn. L. Rptr. 51); but see
Doe v. Indian Mountain School, Inc., supra, 83–84 (noting that court in
Ashlaw v. Booth, Superior Court, judicial district of Windham, Docket No.
CV-90-0045313-S [August 9, 1995] [unpublished opinion], held that § 52-584,
not § 52-577d, applied to negligence action against nonperpetrator defendant
because § 52-577d referred to § 52-577 and did not refer to § 52-584).
25
In support of his conclusion that § 52-584 applies to the plaintiff’s claim,
Justice Zarella contends in his concurring and dissenting opinion that § 52-
577d carves out only an exception to § 52-577, which applies to intentional
torts. As Justice Zarella acknowledges, however, § 52-577 does not expressly
apply to intentional torts; rather, as we have explained, it is a catchall
provision for torts that are not expressly mentioned in other statutes. See
footnote 20 of this opinion. It applies, for example, to legal malpractice
actions. Weiner v. Clinton, 106 Conn. App. 379, 386, 942 A.2d 469 (2008)
(‘‘[a]ctions for legal malpractice based on negligence are subject to § 52-
577, the tort statute of limitations’’). Thus, when the legislature enacted
§ 52-577d, it is reasonable to conclude that it referred to § 52-577 not because
that is the statute of limitations for intentional torts, but because it is the
catchall statute of limitations.
26
An ‘‘action to recover damages for personal injury to a minor . . .
caused by sexual abuse’’; General Statutes § 52-577d; is clearly a common-
law tort action. Indeed, if there were any doubt on this point, the legislature’s
use of the phrase ‘‘[n]otwithstanding the provisions of section 52-577’’—
which applies to tort actions—in § 52-577d makes this conclusion inescap-
ably clear. Our research has revealed no decision of this court or the Appel-
late Court holding that a plaintiff may seek damages for personal injury
under CUTPA. See Simms v. Candela, 45 Conn. Supp. 267, 275, 711 A.2d
778 (1998) (noting that no appellate case law directly addressed issue, but
concluding that claim for damages for personal injury may be brought
under CUTPA).