This certified appeal arises out of a vicious attack on the named plaintiff, Nateysha Monk,
The following relevant facts are undisputed. “On December 26, 1998, the plaintiff attended a New Haven nightclub and parked her car at the defendants’ parking
The plaintiff alleges the following additional facts that are relevant to the resolution of her claims. On the evening that the plaintiff entered the defendants’ lot and paid the attendant, she saw multiple signs posted around the premises. One of those signs stated that parking was not permitted if the lot was unattended.
The defendants denied those allegations and thereafter filed a motion for summary judgment, claiming that (1) they did not have a legal duty to protect the plaintiff from such an attack, and (2) their conduct was not the proximate cause of the attack. The trial court granted summary judgment, concluding that, because the type of harm alleged was not reasonably foreseeable, the defendants did not have a legal duty to protect the plaintiff from such an attack, and, furthermore, that even if the defendants owed a duty to the plaintiff, she would fail on the issue of proximate cause. Id., 662.
The plaintiff thereafter appealed from the judgment to the Appellate Court. The Appellate Court did not consider the issue of proximate causation, but nevertheless affirmed the judgment of the trial court on public policy grounds, holding that “[t]he policy goals of the tort compensation system would . . . not be met if we were to permit a legal duty to be imposed on the defendants.
The plaintiff claims that the Appellate Court improperly affirmed the judgment of the trial court on the basis of its determination that because the plaintiff was familiar with her assailant, the defendants did not owe the plaintiff a duty of reasonable care. Specifically, the plaintiff contends that the defendants did owe her a duty because: (1) such a determination is not inconsistent with public policy; and (2) creating an exception to duty in premises liability cases based on the relationship between a victim and her assailant is illogical. The plaintiff also asks this court to invoke its supervisory powers to consider whether the trial court properly determined that there is no genuine issue of material fact as to proximate cause. In response, the defendants contend that: (1) the Appellate Court’s judgment was correct because public policy considerations do not support the imposition of liability on the defendants under the circumstances of the present case; (2) this court should not invoke its supervisory powers because the record is inadequate for review; and (3) the trial court properly concluded that there are no genuine issues of material fact because the alleged negligent lack of security was not the proximate cause of the attack. We agree with the plaintiff.
As a preliminary matter, we set forth the applicable standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment
I
WHETHER THE DEFENDANTS OWED THE PLAINTIFF A DUTY OF CARE
The test for determining legal duty is a two-pronged analysis that includes: (1) a determination of foreseeability; and (2) public policy analysis. Jaworski v. Kiernan,
In the present case, the defendants’ lot was located in the nightclub area of New Haven, a major Connecticut city. The defendants conducted business during the evening hours, at a time when many people would be seeking parking for the purpose of attending the clubs in the surrounding area. According to Sullivan’s report, “serious crimes had occurred in the vicinity prior to this incident . . . [and the] [defendants knew or should have known that such serious crimes occurred. The police department deployment for crowd control was another cue that should have alerted [the] defendants to the risk of personal injury or property damage to patrons’ vehicles or persons. . . . [Moreover] [although lighting in the lot appeared to be adequate at the time of [Sullivan’s] inspection, the obscured site lines from the street created an opportunity for someone to commit an assault out of the view of the police who were posted nearby.”
It seems quite foreseeable that, under these circumstances, an attack on a patron of the premises could occur, whether spontaneously or as precipitated by an argument at one of the neighboring nightclubs. It also is probable that the presence of a parking attendant would have decreased the likelihood that such an attack would occur. Indeed, Sullivan makes these very conclusions in his report.
Foreseeability notwithstanding, it is well established that Connecticut courts will not impose a duty of care on the defendants if doing so would be inconsistent with public policy. The plaintiff claims that the Appellate Court’s conclusion with respect to this issue; see footnote 6 of this opinion; was improper because: (1) a duty of care was imposed on a similarly situated parking
The defendants’ arguments on appeal largely are premised on the nature of the relationship between the plaintiff and her assailant, and the fact that the attack was not a random one. This is the primary distinction between the present case and Stewart, and a basis for the Appellate Court’s opinion in the present case.
Similarly, the defendants’ claims on appeal and the Appellate Court’s conclusion in the present case misconstrue the scope of the duty owed to the plaintiff. The defendants, because of the nature of their relationship with the plaintiff, owed her a duty to exercise
We recognize that “[i]n considering whether public policy suggests the imposition of a duty, we . . . consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.” (Internal quotation marks omitted.) Id., 670 (Bishop, J., dissenting), citing Murillo v. Seymour Ambulance Assn., Inc.,
Assuming that the activity in question is parking in the defendants’ lot, the first factor, the participants’
The second factor, encouraging participation in the activity, also militates in favor of imposing a duty. As a matter of public policy, it is desirable to promote business activity in Connecticut cities, and to encourage citizens to support local enterprises. The availability of parking has a direct impact on this. By extension, it is, therefore, in the interest of public policy to encourage parking lot owners to conduct business. Although imposing a duty of reasonable care on lot owners would increase their cost of doing business, which likely would be passed on to customers, it is unlikely to dampen business. To the contrary, the benefits of reasonable security probably would outweigh the burden of a marginal increase in parking costs for most customers, and more people would be likely to drive into the city if the parking lots located there were safer.
The third factor, which is the likelihood that imposing such a duty would avoid increased litigation, is an admittedly weaker factor; it does not, however, compel the conclusion that imposing a duty of care on the
Finally, the fourth factor, concerning the decisions of other jurisdictions, is not particularly helpful because there are multiple ways in which our sister states handle the question of duty with respect to premises liability. Some jurisdictions require prior similar incidents to have occurred on or in the immediate vicinity of the premises for lot owners to be treated as having been on notice. See Selektor v. Smiles Parking Co., 210 App. Div. 2d 18,
We conclude that a totality of the circumstances rule, although more expansive than the other aforementioned approaches, is most consistent with the public policy goals of our legal system, as well as the general tenor of our jurisprudence.
II
WHETHER THIS COURT SHOULD EXERCISE ITS SUPERVISORY POWERS TO DETERMINE WHETHER THERE IS A GENUINE ISSUE OF MATERIAL FACT RESPECTING THE ISSUE OF CAUSATION
The plaintiff additionally requests that we invoke our supervisory powers to consider whether the trial court improperly concluded that there was no genuine issue of fact as to the defendants’ liability, an issue left undecided by the Appellate Court. The defendants, however, contend that the record is inadequate for such review because the plaintiff failed to file a revised designation of specific pleadings or a new docketing statement, as required by Practice Book § 63-4 (a) (2) and (4), and also failed to include complete transcripts of the testimony of the parties and witnesses. We disagree with the defendants.
“[P]ursuant to Practice Book § 60-2 . . . the exercise of our supervisory authority ... is appropriate when the record is adequate to allow review of the merits and the parties have briefed the issues.” (Citations omitted; internal quotation marks omitted.) State v. James,
The plaintiff claims that the trial court improperly granted the defendants’ summary judgment motion because there exists, at the very least, a genuine issue of material fact as to whether the defendants’ alleged negligence proximately caused the attack. In support of her contention, the plaintiff cites Sullivan’s report, in which he reviewed the crime statistics of the region, as well as the shape and location of the lot itself, and concluded that the attack on the plaintiff was both foreseeable and likely preventable. In response, the defendants contend that their alleged negligence was not the proximate cause of the attack because the suggestion that an attendant would have prevented the attack is purely speculative, particularly in light of the
The trial court’s determination that the present case lacked genuine issues of material fact was based on its improper association of: (1) lack of duty with the nature of the relationship between the plaintiff and Denson; and (2) lack of notice with the absence of a prior attack on the premises. We have, however, rejected the propositions that: (1) a victim’s relationship with her assailant can bar liability for premises owners; and (2) notice requires the occurrence of a prior similar act on the premises, as opposed to one block away. See part I of this opinion. Accordingly, the relevant question is whether, assuming a breach of duty on the part of the defendants, a fact finder reasonably could find that the defendants’ conduct was a proximate cause of the attack on the plaintiff. We answer that question in the affirmative.
“[P]roximate cause [is] defined as an actual cause that is a substantial factor in the resulting harm .... [T]he inquiry fundamental to all proximate cause questions . . . [is] whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.” (Citations omitted; internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi,
Sullivan’s report regarding crime statistics in New Haven and the area surrounding the parking lot suggests that the defendants had, at the very least, a constructive awareness of the potential for violent crime in the vicinity of their property. They, however, dispute the plaintiffs general description and characterization of the area. It is, therefore, a genuine issue of material fact as to whether the attack was foreseeable.
Similarly, there appears to be a genuine issue of fact regarding the extent to which the defendants’ alleged negligence in failing to supervise the lot properly was a substantial factor in causing the plaintiffs injuries from the attack. In his report, Sullivan opines that “[a] parking attendant would have provided a deterrent to criminal activity on the premises.” The defendants dispute this contention and claim that it is too speculative with respect to the impact an attendant would have had on the plaintiffs injuries.
In a similar case, however, Stewart v. Federated Dept. Stores, Inc., supra,
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court, and to remand the case to the trial court for further proceedings according to law.
In this opinion the other justices concurred.
Notes
Although Jermaine Monk, Nateysha Monk’s husband, was also a plaintiff and sought damages for loss of consortium, he is not involved in this appeal. Hereafter all references in this opinion to the plaintiff are to Nateysha Monk.
During the attack, Denson slashed the plaintiff about the face, neck, chest and thigh. As a result, the plaintiff has suffered painful permanent injuries, including: shock to her nervous system; multiple lacerations; keloid and regular scarring; and skin fibrosis. She has lost time from work and has incurred medical expenses.
During her deposition, the plaintiff testified that she saw signs around the lot, but could not recall what they said. The plaintiffs allegation about the content of this particular sign is, therefore, based, at least in part, on a site visit and report prepared by her expert witness, Neil A. Sullivan. See footnote 4 of this opinion.
The plaintiff testified at her deposition that she did not, in fact, have any direct knowledge that the lot was unattended at the time of the incident because, although the attendant was neither in sight nor responsive to the situation, the plaintiff never actually searched for the attendant either. Notably, the defendants have never affirmatively denied that their lot was unattended at the time of the incident; they have simply denied the claim in the complaint that “[o]n and before December 26, 1998, [the] parking lot was in a dangerous, defective and unsafe condition in that it was inadequately supervised, secured and lighted.” For the puiposes of the present appeal, we view the facts in a light most favorable to the plaintiff and assume that the lot was unattended at the time of the attack.
We note that a copy of Sullivan’s report was appended to the plaintiffs memorandum in opposition to the defendants’ motion for summary judgment; the trial court was, therefore, aware of the area’s incidence of crime when making its determination.
The Appellate Court explained its public policy analysis as follows: “To impose a legal duty on the defendants under the circumstances of this case would (1) be tantamount to imposing strict liability on a parking lot owner or operator for any injury occurring on its property no matter what the circumstances, (2) not act as a deterrent, given the unique circumstances of the attack at issue, where a known attacker attacked the plaintiff because of a personal dispute that arose two years earlier and (3) shift the cost of the plaintiff’s harm to parties who were not directly, if at all, responsible for the injuries.” Monk v. Temple George Associates, LLC, supra,
We note that the Appellate Court specifically declined to address this issue because it was unnecessary to its resolution of the present case. See Monk v. Temple George Associates, LLC, supra,
For the purposes of liability, the defendants correctly point out that they must also have created or increased the risk of the harm that occurred to the plaintiff, and must have been a substantial factor in causing it. See 2 Restatement (Second), Torts § 442B, pp. 469-72 (1965). These, however, are matters of causation rather than duty, and are addressed in part II of this opinion.
In Stewart v. Federated Dept. Stores, Inc., supra,
The Appellate Court made reference to “the unique circumstances of the attack . . . where a known attacker attacked the plaintiff because of a personal dispute that arose two years earlier”; Monk v. Temple George Associates, LLC, supra,
We want to encourage parking lot owners and managers to exercise reasonable care in their dealings with customers immediately as a matter of sound public policy, instead of hiding behind a bright line rule and waiting for the first criminal act to occur on their premises. Although a bright line rule would promote judicial expediency, this concern is outweighed in the present instance by the policy interest in: (1) encouraging businesses to take reasonable measures for the safety of their customers; and (2) assigning liability as accurately as possible to those parties that reasonably may foresee harm on their premises. We do not consider attacks perpetrated in the vicinity of one’s premises to be significantly different for the purposes of foreseeability than attacks committed directly on one’s premises, other things being equal. By contrast, the extent to which a criminal act was reasonably foreseeable to a particular plaintiff in any given case is a question of facts and circumstances.
Practice Book § 60-3 provides: “In the interest of expediting decision, or for other good cause shown, the court in which the appeal is pending may suspend the requirements or provisions of any of these rules in a particular case on motion of a party or on its own motion and may order proceedings in accordance with its direction.”
We note that this issue was raised in the Appellate Court so at the very least, we would be reversing the Appellate Court and sending the case back for the Appellate Court, to decide the causation issue. Under these circumstances, because the issue will get reviewed by some court, in the interests of judicial economy we will not parse this case into two separate appeals.
In Cardona v. Valentin,
Similarly, the present case is distinguishable from Doe v. Manheimer,