GREGORY DEMOND, COADMINISTRATOR (ESTATE OF BENJAMIN DEMOND), ET AL. v. PROJECT SERVICE, LLC, ET AL.
(SC 20025) (SC 20026) (SC 20027) (SC 20028)
Supreme Court of Connecticut
June 11, 2019
Palmer, McDonald, Robinson, D‘Auria, Mullins, Kahn and Ecker, Js.*
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Syllabus
Pursuant to the
The plaintiffs sought to recover damages from the defendants, the operators of an interstate highway service plaza owned by the state, for, inter alia, the wrongful death of the named plaintiff‘s decedent, D, in an automobile accident caused by a drunken driver, G, a temporarily homeless man who for the week preceding the accident had been living out of his vehicle at the service plaza. On the date of the accident, G consumed a large amount of alcohol while parked at the plaza and then proceeded to depart the plaza and drive on the adjacent highway where he caused a multivehicle accident, killing D and injuring D‘s two children and another motorist who was driving on the highway at the time. The defendant P Co. previously had entered into a concession agreement with the state to operate and maintain the service plaza. P Co. subcontracted the day-to-day operation of the service plaza to the defendant A Co., and A Co. in turn subcontracted the operation of certain portions of the service plaza to the defendant F Co. Pursuant to the agreement, the defendants agreed not to permit the consumption of alcohol or loitering on the premises of the service plaza, to notify the police of any consumption of alcohol or loitering, and to train all subcontractors and their employees to comply with those contractual obligations. The plaintiffs alleged, inter alia, that the defendants breached a duty, arising under
- The trial court incorrectly determined that the defendants, by undertaking a contractual obligation to prevent the consumption of alcohol and loitering at the service plaza, owed a duty of care to the plaintiffs under
§ 324A and, therefore, improperly denied the defendants’ motions to set aside the verdict and to direct judgment in their favor on the negligence claims; a landowner or possessor of property has no common-law duty to prevent the risk of harm to third persons off the property that is caused by a person‘s consumption of alcohol on the property, and, to impose such a duty under§ 324A of the Restatement (Second) of Torts , there must be an express contractual undertaking or evidence of an unambiguous intention on the part of the contracting parties to protect third persons from foreseeable, physical harm within the scope of the services to be performed under the contract; in the present case, the evidence was insufficient as a matter of law to support a finding that the parties to the concession agreement, the state and P Co., had a specific intent to protect motorists on the highway adjacent to the service plaza from the risk of harm created by the consumption of alcohol at the service plaza, as the agreement itself did not mention an actual intention to provide such protection and there was no extrinsic evidence that demonstrated any such contractual intent; moreover, evidence that harm to passing motorists is a foreseeable result of the negligent failure to prevent alcohol consumption at the service plaza was not sufficient to establish that the no alcohol and no loitering provisions in the concession agreement were included with the intention of protecting highway travelers. - This court concluded that it was unnecessary, in light of its determination that the defendants owed no duty of care to the plaintiffs, to address the defendants’ claims, raised as alternative grounds for reversing the judgment of the trial court, that, even if they owed a duty of care to the plaintiffs, they were not liable for negligence under either
§ 324A (a) , because they did not increase the risk of harm to the plaintiffs by negligently performing their contractual undertaking, or under§ 324A (c) , because neither the state nor a third person relied on the defendants to protect highway motorists; nonetheless, this court observed that there was no evidence that the defendants’ acts or omissions served to increase the risk of harm to the plaintiffs, and the evidence was insufficient to establish that either highway motorists or the state had relied on the defendants to protect motorists on the highway adjacent to the service plaza. - The plaintiffs could not prevail on their claim that the trial court improperly granted the defendants’ motions for summary judgment with respect to their claim that the defendants created a public nuisance by allowing G to loiter and consume alcohol at the service plaza for one week; even if the defendants’ conduct in allowing G to loiter and consume alcohol at the plaza contributed to such a dangerous condition, the sole proximate cause of the automobile accident was G‘s immoderate consumption of alcohol and G‘s act of driving his vehicle while intoxicated rather than the defendants’ conduct in allowing G to loiter and consume alcohol at the plaza.
Argued April 30 and May 1, 2018—officially released June 11, 2019
Procedural History
Action to recover damages for, inter alia, the wrongful death of the named plaintiff‘s decedent, and for other relief, brought to the Superior Court in the judicial district of Waterbury, where the case was transferred to the Complex Litigation Docket; thereafter, the trial court, Zemetis, J., granted in part the motions for summary judgment filed by the named defendant et al.; subsequently, the action was withdrawn as to O, R & L Facility Services, LLC; thereafter, the case was tried to the jury before Zemetis, J.; verdict for the plaintiffs; subsequently, the trial court, Zemetis, J., granted the plaintiffs’ motion for additur and rendered judgment for the plaintiffs, from which the plaintiffs and the named defendant et al. filed separate appeals. Reversed in part; judgment directed.
Randy Faust, pro hac vice, with whom were Stephen G. Murphy, Jr., and, on the
A. Jeffrey Somers, for the appellant in Docket No. SC 20027 and the appellee in Docket No. SC 20028 (defendant 4MM, LLC).
Karen L. Dowd and Brendon P. Levesque, with whom, on the brief, was Wesley W. Horton, for the appellants in Docket No. SC 20028 and the appellees in Docket Nos. SC 20025, SC 20026 and SC 20027 (plaintiffs).
Opinion
ECKER, J.
The plaintiffs alleged that the defendants created a public nuisance by permitting Goodale to loiter and to consume alcohol on the service plaza premises, and also breached a duty owed to passing motorists, arising under
On appeal,3 the defendants contend that their con-tractual undertaking to prohibit loitering and alcohol consumption at the service plaza did not create a duty to third-party motorists injured off the service plaza premises by a drunk driver who became intoxicated at the service plaza; the plaintiffs, in their cross appeal, contend that the trial court improperly rendered summary judgment on their public nuisance claims. We conclude that the defendants’ contractual undertaking did not create a duty to the plaintiffs, and the plaintiffs’ public nuisance claims fail as a matter of law. We therefore reverse in part the judgment of the trial court.
I
The jury reasonably could have found the following facts. For approximately one week leading up to March 9, 2012, Goodale, who was temporarily homeless, lived in his Jeep in the parking lot of the service plaza on I-395. The service plaza was owned by the DOT. It was operated and maintained at all relevant times by Project Service pursuant to the concession agreement between Project Service and the DOT. Project Service subcontracted the day-to-day operation of the service plaza, or certain portions of it, to Alliance, which operated the fuel service area but subcontracted the operation of the convenience mart, parking area and plaza to 4MM. The concession agreement provided that Project Service and its subcontractors would
Goodale was an alcoholic. During the time he lived in his Jeep at the service plaza, he frequented the service plaza‘s convenience store to buy food and nonalcoholic beverages, to use the bathroom, and to charge his cell phone. During that time, Goodale told a store employee that he would be staying at the service plaza until he could be admitted to the Stonington Institute, a treatment facility for alcohol and substance abuse. Goodale drank one-half gallon of vodka every two days while living at the service plaza, and some of the employees working at the service plaza were aware of his consumption of alcohol.
On March 9, 2012, Goodale spent a portion of the day drinking vodka in his Jeep while parked at the service plaza. At some point during the evening, he drove the Jeep from the parking lot onto the on-ramp to I-395 southbound. Goodale felt dizzy and immediately pulled to the shoulder, where he slept for approximately one to one and one-half hours. Upon awakening, Goodale decided to return to the service plaza by driving south a short distance on I-395 to an emergency turnaround in the median of the highway, intending to use the turnaround to access the northbound lanes of I-395 and then drive to the next emergency turnaround to return to the service plaza. When Goodale attempted to cut across the southbound lanes of I-395 to the turnaround, he struck a Nissan sedan being driven by Demond. Demond‘s sons, Alexander, aged six, and Nicholas, aged four, were in car seats in the backseat of the sedan. The collision caused Demond to lose control of the Nissan, and he veered through the turnaround into the oncoming northbound traffic. Demond‘s Nissan hit a Ford Explorer driven by Crouch head on, tumbled end over end, hit another vehicle and then came to rest. The results were catastrophic. Demond was killed in the crash, and Alexander, Nicholas and Crouch were severely injured. Testing of a blood sample taken from Goodale one hour after the crash showed that his blood alcohol level was .25 milligrams per deciliter, well over the legal limit.
The plaintiffs brought this action against Project Service, Alliance and 4MM, among
The defendants all filed motions for summary judgment. Those motions used variations on the same theme to attack the negligence claims, with the common point being that the defendants owed no duty to the plaintiffs under the circumstances. Project Service relied on a number of cases holding that a party in its position has a legal duty to take steps to prevent another person from harming a third party only if the third party is an “identifiable victim,” and contended that motorists traveling on I-395 were not identifiable victims under the circumstances. Alliance, for its part, contended that it had no duty to the plaintiffs because it was responsible only for the fuel service area, and Goodale had not consumed alcohol or loitered in that location. Alliance also contended that a person in control of premises has no duty to protect motorists from persons who consume alcohol on the premises but cause harm off the premises. 4MM contended that it had no duty to the plaintiffs because Goodale‘s criminal conduct, driving under the influence of alcohol, was a superseding cause of the crash.
As to the public nuisance claims, Project Service contended that those claims failed because they were derivative of the negligence claims. Alliance contended that the claims failed because it had no duty to the plaintiffs and because its “use of the land did not have a natural tendency to create a danger from motor vehicle accidents on the interstate highway,” and 4MM contended that a garden variety premises liability claim did not give rise to a public nuisance claim.
The plaintiffs opposed summary judgment primarily on the ground that the no alcohol/no loitering provisions of the concession agreement were “intended to protect the public, not only at the plaza, but those passing motorists on the highway in proximity to the plaza.” Their central argument was that the defendants were liable under
At oral argument on the motions for summary judgment, the trial court expressed its views that the issues arising from the negligence claims were “novel,” that none of the cases cited by the parties was directly on point, and that “we‘re stretching every aspect of tort liability to see whether there is responsibility here.” The trial court‘s written memorandum of decision reflects the court‘s serious engagement with the legal issues presented,
Contrary to its initial inclination to decide the question of duty as a matter of law, the trial court ultimately concluded that “[t]he question of whether any or all of the defendants owe a legal duty of care to the plaintiffs is a question of fact for the trier of fact.” The court did not directly address whether (or why) the no alcohol/no loitering provisions created a duty to motorists on I-395, but it appears to have assumed that the duty would apply to passing motorists under
The plaintiffs thereafter filed a third amended complaint, which is the operative pleading for purposes of these appeals, in which they reasserted the negligence claims against the defendants. At the conclusion of the plaintiffs’ case-in-chief at trial, Alliance filed a motion for a directed verdict in which it renewed its claim that it had no duty to protect the plaintiffs from Goodale‘s tortious conduct because a person in control of premises has no duty to protect motorists from persons who consume alcohol on the premises and then drive off the premises. The trial court denied the motion.
Two particular circumstances regarding the submission of the case to the jury are relevant on appeal. First, although the trial court previously had determined, in its summary judgment ruling, that the existence of a duty owed by the defendants to the plaintiffs presented a factual issue for the jury, the court instructed the jury at trial that the defendants owed a duty of care to the plaintiffs for purposes of determining liability under
The jury found that the defendants each were negligent, that their negligence increased the risk of harm to the plaintiffs, and that the plaintiffs or another had relied on each defendant to exercise reasonable care. Accordingly, the jury rendered a verdict in favor of the plaintiffs. The defendants filed timely motions to set aside the verdict and to direct judgment in their favor as a matter of law. In a supporting memorandum, adopted in full by Project Service, Alliance argued that it had no duty to the plaintiffs as a matter of law under
The trial court denied the defendants’ postverdict motions. With respect to the duty issue, the trial court stated that it had already found, in its ruling on the defendants’ motions for summary judgment, that “a legal duty of care existed between the defendants and the plaintiffs as the context of their relationship created the duty. . . . The contracts created, and the defendants willingly assumed, the duty owed to [the] plaintiffs.” The court also determined that the jury reasonably could have found that the defendants’ representatives had agreed that the no alcohol/no
These appeals followed. The defendants contend in their appeals that the trial court improperly denied their motions to set aside the verdict and to direct judgment in their favor on the negligence claims because they owed no duty to the plaintiffs and have no liability to them under
II
We first address whether the defendants owed the plaintiffs a duty of care. The defendants argue that the trial court improperly denied their motions to set aside the verdict and to direct judgment in their favor on the negligence claims as a result of the court‘s improper determination that the defendants owed a duty of care to the plaintiffs under
Our standard of review is well settled. “Directed verdicts are not favored. . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. . . . In reviewing the trial court‘s decision [to deny the defendant‘s motion for a directed verdict] we must consider the evidence in the light most favorable to the plaintiff. . . . Although it is the jury‘s right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation. . . . A directed verdict is justified if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. . . . The foregoing standard of review also governs the trial court‘s denial of the defendant‘s motion for judgment notwithstanding the verdict because that motion is not a new motion, but [is] the renewal of [the previ-ous] motion for a directed verdict.” (Citation omitted; internal quotation marks omitted.) Bagley v. Adel Wiggins Group, 327 Conn. 89, 102, 171 A.3d 432 (2017).
Under Connecticut law, “[t]he existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand. . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.” (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 538-39, 51 A.3d 367 (2012). “Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.” (Internal quotation marks omitted.) Munn v. Hotchkiss School, 326 Conn. 540, 548, 165 A.3d 1167 (2017). Foreseeability is a critical factor in the analysis, because no duty exists unless “an ordinary person in the defendant‘s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result . . . .” (Internal quotation marks omitted.) Id.; see also Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328, 107 A.3d 381 (2015). Our law makes clear that foreseeability alone, however, does not automatically give rise to a duty of care: “[A] simple conclusion that the harm to the plaintiff was foreseeable . . . cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed. . . . A further inquiry must be made, for we recognize that duty is not sacrosanct in itself . . . but is only an expression of the sum total of those considerations of policy [that] lead the law to say that the plaintiff is entitled to protection. . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant‘s responsibility should extend to such results.” (Internal quotation marks omitted.) Munn v. Hotchkiss School, supra, 549–50; see also Lawrence v. O & G Industries, Inc., 319 Conn. 641, 650, 126 A.3d 569 (2015).
The duty analysis in the present case is complicated by the particular context in which the allegations of negligence arose against these defendants. The parties have framed the ultimate question as whether, under
First, a person typically has no duty of care to protect third persons from harm caused by a primary tortfeasor, or to control the conduct of that tortfeasor, unless there is a special relationship between the defendant and either the third person or the tortfeasor, or other exceptional circumstances exist. See Cannizzaro v. Marinyak, 312 Conn. 361, 366-67, 93 A.3d 584 (2014) (” [T]here generally is no duty that obligates one party to aid or to protect another party. . . . One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another.” [Citation omitted; internal quotation marks omitted.]); see also Doe v. Boy Scouts of America Corp., 323 Conn. 303, 323-25, 147 A.3d 104 (2016) (discussing affirmative duty of care to protect minor participants from sexual abuse by patrol leader); Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004) (special relationship of custody or control may give rise to duty to protect third person from conduct of another); Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996) (same).
Second, it is significant to our analysis that an owner or possessor of property in this state generally cannot be held liable in negligence for harms caused by adults who consume alcohol on that property but cause injury only after leaving to drive on the public roads.14 This limitation holds true even when the owner or possessor plays an active role in creating the risk by actually serving the defendant the alcohol.15 See Bohan v. Last, 236 Conn. 670, 676, 674 A.2d 839 (1996) (“[a]lthough we have never held that purveyors of alcohol have no [common-law] duty to exercise due care to protect the foreseeable victims of those who drink and drive, we have, nonetheless, declined to recognize a claim in negligence“); Quinnett v. Newman, 213 Conn. 343, 345, 568 A.2d 786 (1990) (“[a]t common law there is no cause of action based upon negligence in selling alcohol to adults who are known to be intoxicated“), overruled on other grounds by Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003); Nolan v. Morelli, 154 Conn. 432, 443, 226 A.2d 383 (1967) (“the plaintiff has pointed to no common-law duty resting on these defendants, as sellers, proprietors or otherwise, to [prevent the tortfeasor, who had purchased and consumed alcohol on their property, from driving] or otherwise to guard against injuries sustained at unknown distances from the defendants’ premises and at places and under circumstances wholly outside the defendants’ knowledge or control“).16
In support of this claim, the plaintiffs cite numerous cases involving a party‘s contractual undertaking to keep premises safe in which the courts held that the undertaking party had a duty to a third person injured as the result of the negligent performance of the undertaking. See, e.g., Gazo v. Stamford, supra, 255 Conn. 252 (when owner of property abutting public sidewalk had duty to clear sidewalk of ice and snow, and owner contracted with defendant to perform that duty, defendant had duty to plaintiff who slipped on icy sidewalk and was injured under
We consider these cases inapposite in the present circumstances, however, because each involves an undertaking party who takes on a preexisting duty already owed by the contracting party (the party hiring the undertaking party) to the plaintiff. In cases involving a preexisting (sometimes called a “pass-through“) duty, the undertaking party is found to have the same duty to the injured person as the duty already owed by the contracting party itself. If Goodale had injured a patron or employee on the service plaza premises, for example, cases like Gazo would strongly support the conclusion that the defendants could be held liable for their negligent performance of the no alcohol/no loitering provisions because they undertook the DOT‘s preexisting duty “to keep its premises in a reasonably safe condition” for the benefit of invitees; (internal quotation marks omitted) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012); which includes the duty to protect invitees from the dangers created by allowing alcohol consumption on the premises. See Merhi v. Becker, 164 Conn. 516, 518–23, 325 A.2d 270 (1973) (when defendant union rented premises where it held picnic for union members and their guests, who were required to pay admission fee, and defendant failed to provide adequate security, defendant was liable when picnic attendee who had been consuming his own alcohol intentionally drove car toward third person and struck plaintiff, who was on premises); see also footnote 13 of this opinion. But this pass-through liabil-ity, which is imposed by
With the pass-through cases distinguished, we have arrived at the true center of the parties’ dispute regarding the existence of a duty owed by the defendants to the plaintiffs. The plaintiffs argue that a duty of care arose under the facts of this case because the defendants’ contractual
The defendants propose a very different duty analysis under
After careful consideration, we cannot subscribe entirely to the duty analysis proposed by either side, although, due in part to the idiosyncratic features of the present case, we end up adopting an approach closer to the one proposed by the defendants. Our reservation concerning the defendants’ argument is the undue weight it gives to the contractual origin of the duty owed to third parties under
This concern, though substantial, does not lead us to conclude that the duty arising under
As we have observed, the precise terms of a contractual undertaking will not strictly delimit the extent of the legal duty to protect third parties under
Our conclusion in this regard is fully consistent with the historical origins of
In our view, the same policy considerations underlying the preexisting Connecticut common law require, in the context of the present case, either an express contractual undertaking or evidence of an unambiguous intention on the part of the contracting parties before the law will impose a duty to protect third persons from off premises harm caused by an intoxicated driver. Unless there is sufficient evidence to support a jury finding that the contracting parties actually intended to depart from the preexisting liability rules, or some other basis for imposing a duty—e.g., a special caretaking or supervisory relationship between the defendant and either the primary tortfeasor or the victim—a landowner or possessor who undertakes to prevent the consumption of alcohol as part of its on premises responsibilities does not thereby incur a duty to protect third parties from off premises physical harm caused by a driver who became intoxicated before leaving the premises. The undertaking party‘s duty to protect third persons from off premises harm under these circumstances, in the absence of an express understanding between the contracting parties or an affirmative duty arising from some other source, is coextensive with the preexisting duty of the property owner under the common law. See DiLullo v. Joseph, 259 Conn. 847, 851, 792 A.2d 819 (2002) (determination as to appropriate default contract provision is based on policy considerations); State v. King, 361 Or. 646, 658, 398 P.3d 336 (2017) (contractual “[d]efault rules may be based on . . . basic principles of justice” [internal quotation marks omitted]).
In this regard, it is important to understand that the duty analysis under
There is no evidence in the present case that the parties intended contractually to alter or extend the existing common-law rules holding that a party in the defendants’ position has no duty to protect off premises travelers from the risks posed by intoxicated drivers who consumed alcohol while loitering at the service plaza. The contractual documents themselves do not mention or suggest the existence of any such duty. The documents establish only that Project Service undertook a contractual obligation to prohibit alcohol con-
sumption and loitering at the service plaza, to notify the police of any consumption of alcohol or loitering, and to train all subcontractors and employees of subcontractors to comply with those contractual obligations. There is no reference to highway travelers or their protection in connection with the no alcohol/no loitering provision.21 Simply put, no aspect of the contract expresses an actual intention to protect highway motorists from the risk of harm created by alcohol consumption by individuals at the service plaza.
Nor does any extrinsic evidence presented by the plaintiffs demonstrate any such contractual intent. The
The plaintiffs also submitted evidence at the summary judgment stage showing that loitering and alcohol consumption were ongoing problems at service plazas in this state while Project Service was operating the service plaza. In one inspection report, the DOT advised the operator of a service plaza that it had removed a sleeping homeless person from the service plaza and that “the hassle free experience at this plaza is your responsibility.” In another inspection report, the DOT noted that the manager of the McDonald‘s restaurant at a service plaza wanted the operator of the service plaza “to remove [a] homeless man as [his presence] reduces sales and makes potential customers uncomfortable.” In yet another inspection report, the DOT advised the operator of a service plaza that a “drunk man was harassing one of the [McDonald‘s restaurant] employees at the drive [through] window.” Other inspection reports noted the presence of panhandlers and beggars at service plazas. These inspection reports do not provide the necessary evidence of contractual intention to create a jury issue. To the contrary, they tend to confirm the defendants’ position that the purpose of the no alcohol/no loitering provisions was to ensure the safety and comfort of customers and employees of the service plaza. The reports cast no light on whether there was a specific intention to protect highway travelers.
We conclude that the evidence presented by the plaintiffs was insufficient as a matter of law to support a finding that the contracting parties had the specific intent to protect passing motorists from the risk of harm created by the consumption of alcohol at the service plaza. Because we hold that proof of such an intention is required in the particular context of this case, we must reverse the judgment of the trial court with respect to the plaintiffs’ negligence claims and remand the case with direction to render judgment in favor of the defendants on those claims.
We recognize that the plaintiffs and their families have suffered a horrible tragedy, through no fault of their own. The plaintiffs’ harm was caused by a wrongdoer, Goodale, who is morally and legally culpable for the unspeakable loss caused by his conduct. Although we understand the plaintiffs’ desire to hold accountable all entities who might have contributed to their loss, we conclude for the foregoing reasons that the imposition of liability on the defendants is inconsistent with the present state of Connecticut law. Accordingly, we must reverse in part the judgment of the trial court.
III
It is unnecessary to reach the other grounds for reversal of the plaintiffs’ negligence claims advanced by the defendants, but we do so briefly to demonstrate that the flaws contained in the plaintiffs’ theory of liability run deep, and the judgment would not be saved even if we were to assume that Project Service undertook a duty to protect passing motorists from the risk of harm posed by intoxicated drivers. These additional grounds relate to the specific predicates to liability necessary under subsections (a) and (c) of
We find Jain persuasive as applied to the circumstances in this case and, therefore, reject the plaintiffs’ suggestion that the negligent performance of an undertaking itself ordinarily will satisfy the increased risk requirement of
There is no evidence in the present case that the defendants’ acts or omissions did anything to increase the risk of harm within the meaning of
We likewise would conclude that liability under
A more substantial question under
In summary, we conclude that the defendants’ undertaking to prevent alcohol consumption and loitering at the service plaza, standing alone, did not constitute an undertaking to protect passing motorists from the risk of harm created by persons who consumed alcohol at the service plaza and then drove, thereby giving rise to a duty to such motorists under
IV
We next address the plaintiffs’ claim that the trial court improperly granted summary judgment in favor of the defendants on the plaintiffs’ public nuisance claims. The plaintiffs contend that the defendants created a public nuisance by creating “an environment that allowed and encouraged Goodale to loiter and [to] consume alcohol at the . . . service plaza for over a week.”25 We affirm the judgment of the trial court on this claim.
The standard of review is not disputed. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a
The substantive law governing public nuisance claims is also well established. “Section 821B of the Restatement (Second) of Torts defines a public nuisance as ‘an unreasonable interference with a right common to the general public.’ . . . Whether an interference is unreasonable in the public nuisance context depends, according to the Restatement (Second), on ‘(a) [w]hether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by [law] . . . .‘”
The rights common to the general public can include, but certainly are not limited to, such things as the right to use a public park, highway, river or lake.
“To prevail [on] a claim for public nuisance . . . a plaintiff must prove the following elements: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries and damages. . . . In addition, the plaintiff must prove that the condition or conduct complained of interferes with a right common to the general public. . . . Nuisances are public where they . . . produce a common injury. . . . The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence.” (Citation omitted; internal quotation marks omitted.) Shukis v. Board of Education, 122 Conn. App. 555, 586-87, 1 A.3d 137 (2010).
In Quinnett v. Newman, supra, 213 Conn. 348, this court considered the question whether “the sale of substantial amounts of alcohol to one who thereafter operates a motor vehicle upon a public highway is analogous to the types of acts that have been held to be public nuisances.” We concluded that this type of conduct by one in possession of land does not give rise to a public nuisance for the same reason that it does not give rise to a claim for negligence, namely, that the proximate cause of the plaintiff‘s decedent‘s death was the intoxicated motorist‘s “own immoderate use of the alcohol and not in its service to him by the defendant sellers.” Id., 349.
The plaintiffs attempt to distinguish Quinnett on the ground that, in that case, “the inherently dangerous condition claimed to constitute a nuisance [was] the intoxicated adult operator of the motor vehicle“; id.; whereas, in the present case, the claimed dangerous condition was the “creation of an environment that allowed and encouraged Goodale to loiter and [to] consume alcohol at the highway service plaza for over a week.” The supposed distinction does not survive examination on this record. As we have indicated, the plaintiff in Quinnett contended that the defendants’ “sale of substantial amounts of alcohol to one who thereafter operates a motor vehicle upon a public highway” created a public nuisance. (Emphasis added.) Id., 348. Our statement that the intoxicated driver was
The judgment is reversed with respect to the plaintiffs’ claims for negligence and the case is remanded with direction to render judgment for the defendants as to those claims; the judgment is affirmed in all other respects.
In this opinion the other justices concurred.
Notes
“Q: Do you have an understanding as to why it is that the consumption of alcohol is prohibited on the Montville service plaza premises?
. . .
“A. Yes.
“Q. Why is that?
“A. Obviously, driving and drinking is not a healthy thing to partake in.
“Q. So, I‘m sure this is obvious, but so we get it clear on the record, you were aware and you understood that drinking alcohol and driving is a serious danger?
“A. Yes, sir.
“Q. And it poses even greater dangers on a highway service plaza, correct?
“A. It‘s bad everywhere.
“Q. I assume you were aware and you would agree that at all times prior to March 9 of 2012, you knew that the consumption of alcohol on the premises of the Montville service plaza not only posed a risk of harm to patrons at the plaza itself, but also to individuals on the highway as people would leave the plaza, correct?
“A. Absolutely.
“Q. . . . I noticed in a number of the documents, the bid proposal for instance was one of them, this document, there was an emphasis on the safety of motorists traveling on the highways in the immediate vicinity of the rest area.
“A. Yes.
“Q. You‘ve seen that, correct?
“A. Yes, yes.
“Q. And that was and continues to be a primary concern of Project [Service], correct?
“A. Absolutely.
. . .
“Q. It is their responsibility if there is a consumption of alcohol on the property to follow the action plan that‘s set out for the employee, correct?
“A. That‘s correct.
“Q. And there is an awareness that if there‘s a failure to do that, that there is a serious danger to the motorists passing on the highway, correct?
“A. I would say there would be or could be.”
On appeal the plaintiffs also rely on the following trial testimony given by Landino:
“Q. And there was an awareness that if there was a failure to follow that emergency action plan, if there was a consumption of alcohol, that there is a serious danger to the motorists passing on the highway, true?
“A. Yes.”
. . .
“Q. And you were aware, were you not, that if there was a failure to follow this action plan in the presence of consumption of alcohol at the Montville plaza as of March 9 of 2012, that there was a serious danger to passing motorists on the highway, true?
“A. There could be, yes.”
. . .
“Q. And isn‘t it true, and you told me this in your deposition, and you reiterated it when I was asking you questions, that you were aware, and Project Service was aware, that . . . if they failed to control [the consumption of alcohol and living at the service plaza], that there was a serious danger or could be a serious danger to motorists on the passing highway; isn‘t that what you told me?
“A. Yes, sir.”