268 Conn. 559 | Conn. | 2004
Opinion
This appeal arises out of a negligence action brought by the plaintiff, John Murdock, a former officer for the Hartford police department, against the named defendant, Joseph Croughwell, the former chief of the Hartford police department, and the defendant city of Hartford (city), to recover damages for injuries sustained in an off-duty, physical altercation
Prior to the physical altercation at issue in the present case, the plaintiff, Cancel and other members of the CAPERS division had gathered at the restaurant following the end of their shift. Croughwell was not present. The police officers, including the plaintiff and Cancel, consumed several alcoholic beverages while discussing work-related issues, such as overtime pay. The plaintiff told Cancel that, as sergeant, he should be more assert
The plaintiff brought the present action to recover damages for his injuries against Cancel, Croughwell and the city, in a five count complaint. Counts one
After the verdict was accepted and recorded, the defendants filed a motion for judgment notwithstanding the verdict, a motion to set aside the verdict and a motion for remittitur. Prior to the court’s ruling on the motions, the plaintiff reached a settlement with Cancel and withdrew count two of the complaint.
The plaintiff subsequently appealed from the trial court’s judgment to the Appellate Court. Upon the plaintiffs motion, we transferred the appeal to this court pursuant to Practice Book § 65-2 and General Statutes § 51-199 (c).
We begin by setting forth the standard by which we review the plaintiffs claim. “The trial court’s function in setting aside a verdict and this court’s role in reviewing that action are well settled. . . . The trial court should not set a verdict aside where there was some evidence upon which the jury could reasonably have based its verdict, but should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . . . .” (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 106-107, 708 A.2d 937 (1998). The existence of a duty, the pivotal issue in this appeal, however, is a matter of law. Accordingly, our review of this issue is plenary. Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 138, 811 A.2d 687 (2002).
“With respect to the second inquiry, namely, the policy analysis, there generally is no duty that obligates one party to aid or to protect another party. See 2 Restatement (Second), Torts § 314, p. 116 (1965). One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another. See W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 56, pp. 373-74; see also 2 Restatement (Second), supra, §§ 314A, 315 .... In delineating more precisely the parameters of this limited exception to the general rule, this court has concluded that, [in the absence of] a special relationship of custody or control, there is no duty to protect a third person from the conduct of another. . . . Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996).” (Citations omitted; emphasis in original; internal quotation marks omitted.) Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 525-26, 832 A.2d 1180 (2003).
Before analyzing subsections (a) and (b) separately, we reiterate that, as a whole, § 315, by its express terms, is an exception to the general rule that there is no duty to control the conduct of a third person. The comments to § 315 make this point explicitly, stating that “[t]he rule stated in this Section is a special application of the general rule stated in § 314.” 2 Restatement (Second), supra, § 315, comment (a), p. 122. Section 314 of the Restatement (Second), supra, in turn, provides: “The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.” Mindful that the starting point of our analysis is the general prohibition against imposing upon an individual a duty to control the conduct of a third party, we address the plaintiffs contention that the employment relationship between Croughwell and Cancel is a special relationship within the meaning of § 315 (a).
The plaintiff argues that, pursuant to § 315 (a) of the Restatement (Second), Croughwell and Cancel, as supervisor and subordinate, had a special relationship that created a duty on the part of Croughwell to control Cancel’s off-duty conduct. Section 315 provides in relevant part: “There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes
The text of § 315 (a) of the Restatement (Second) does not define the special relationships that give rise to a duty to control the conduct of a third party.
Sections 316, 318 and 319 of the Restatement (Second) all identify specific relationships that give rise to a duty to control a third party pursuant to § 315 (a). Section 316
Section 317
We next turn to the plaintiffs claim that § 315 (b) of the Restatement (Second) imposes a duty on Croughwell, as chief of police, to protect the plaintiff, his subordinate, from harm by an off-duty, fellow police officer, Cancel. Section 315 of the Restatement (Second), supra, provides in relevant part: “There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless . . . (b) a special relation exists between the actor and the other which gives to the other a right to protection.”
Although § 315 (b), like subsection (a), is silent as to the definition of a special relationship, the accompanying comments again set forth those relationships that fall within the ambit of § 315 (b). Thus, “[t]he relations between the actor and the other which require the actor to control the conduct of third persons for the protection of the other are stated in §§ 314A and 320.” 2 Restatement (Second), supra, § 315, comment (c). Neither § 314A nor § 320 is applicable to the facts of the present case.
Section 320 of the Restatement (Second)
In support of his claim that § 315 of the Restatement (Second) imposes a duty on Croughwell, the plaintiff relies on extrajurisdictional authority applying the special relationship exception from the Restatement (Sec
The plaintiff also relies on the New Hampshire case of Marquay v. Eno, 139 N.H. 708, 719-20, 662 A.2d 272 (1995), for the proposition that other states recognize a special relationship between employers and employees. Like Funkhouser, Marquay involved sexual abuse of schoolchildren. Moreover, the New Hampshire Supreme Court later distinguished Marquay and expressly stated that § 314A of the Restatement (Second) does not impose a duty on employers to protect employees from the criminal acts of a third party. See Dupont v. Aavid Thermal Technologies, Inc., 147 N.H. 706, 709-10, 798 A.2d 587 (2002) (“[w]e decline to hold that the employment relationship is the type of ‘special’ relationship that gives rise to a duty to protect against foreseeable criminal attacks by third parties”). Indeed, the Dupont court explicitly disavowed attempts to liken the employer-employee relationship to the school-student relationship. Id., 711 (“[w]e are unpersuaded by the plaintiffs attempts to liken the employer/employee relationship to the school/student relationship in Marquay”).
The plaintiff also claims that the department’s code of conduct imposed a duty on Croughwell to protect the plaintiff from harm by Cancel. We disagree. The code of conduct is the mechanism by which the chief of police, in this case, Croughwell, regulates the “efficiency, discipline, and good conduct of the department . . . .” By its terms, the code of conduct establishes standards of conduct, both on and off duty, the violation of which may subject a department employee to disciplinary action. It does not, however, impose any affirmative obligation on the part of Croughwell to enforce the code of conduct’s provisions, and therefore does not establish any duty owed by Croughwell to the plaintiff.
The plaintiffs final claim
The judgment is affirmed.
In this opinion the other justices concurred.
The plaintiff named Cancel, Croughwell and the city as defendants. Following the jury verdict, the plaintiff reached a settlement with Cancel and withdrew his claims against him. Accordingly, Cancel is not a party to this appeal. We refer in this opinion to Croughwell and the city as the defendants.
The plaintiff raises three other claims in his appeal to this court. First, he claims that the trial court improperly granted the defendants’ motion to set aside the verdict and improperly rendered judgment notwithstanding the verdict based upon its conclusion that Croughwell was shielded from liability by governmental immunity. Second, the plaintiff claims that the trial court improperly granted the defendants’ motion to set aside the verdict and improperly rendered judgment notwithstanding the verdict based upon its conclusion that a claim pursuant to General Statutes § 7-465 was without merit because Croughwell was protected by governmental immunity. Because we conclude that Croughwell did not owe a duty of care to the plaintiff, we do not address these claims. Additionally, the plaintiff claims that the trial court improperly excluded evidence of a prior altercation between Cancel and another police officer that would have established that Croughwell had constructive notice of Cancel’s violent tendencies. Neither actual nor constructive notice of Cancel’s violent tendencies would alter our conclusion that Croughwell owed no duty to the plaintiff on the facts of this case, and we therefore do not consider this evidentiary issue.
In the event that this court would find error and reverse the trial court’s judgment, the defendants raise the following claims in their brief: a new trial should be ordered because the jury failed to apportion properly the negligence between the plaintiff, Cancel and Croughwell pursuant to General Statutes § 52-572h; the defendants are entitled to a setoff in the amount equal to the plaintiffs postverdict settlement with Cancel; and the case should be remanded to the trial court for a determination as to whether the award of $890,000 in noneconomic damages was excessive as a matter of law. Because we affirm the trial court’s judgment, we do not address these issues.
The record reveals some confusion as to the exact date of the incident. It appears that the parties went to the restaurant some time before midnight on June 8,1995, and that the actual altercation occurred in the early morning hours of June 9, 1995. For the sake of clarity, in this opinion, we refer to the events as having occurred on June 9, 1995.
The CAPERS division, now known as major crimes, consisted of six to seven detectives and a supervising officer. It handled homicides, sexual assaults, robberies and carjackings.
The plaintiff withdrew count one prior to trial.
General Statutes § 7-465 provides in relevant part: “(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person’s civil rights or for physical damages to person or property, except as hereinafter set forth, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. . . .”
The jury, in its interrogatory on count three against the city, specifically found that Cancel was not acting within the scope of his employment at the time of the incident.
In response, the defendants filed a motion, which the trial court granted, to amend their initial remittitur motion to reflect Cancel’s settlement.
In making this claim, the plaintiff argues, in his brief to this court, that this appeal presents a question of proximate cause. We reject the plaintiffs characterization of the basis of the trial court’s ruling, which clearly determined that Croughwell owed no duty of care to the plaintiff.
Section 315 of the Restatement (Second) of Torts provides: “There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
“(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
“(b) a special relation exists between the actor and the other which gives to the other a right to protection.”
In his reply brief and at oral argument before this court, the plaintiff attempted to establish that Croughwell’s duty to control Cancel’s conduct arose within the scope of his employment, when Croughwell failed to investigate, properly train or discipline Cancel for his violent tendencies. Whether the purported duty arose on or off duty is irrelevant under § 315 of the Restatement (Second), which does not reference the employment relationship, let alone, at which point the purported duty arose.
We note that the plaintiff, in his brief to this court, does not discuss the commentary accompanying § 315 of the Restatement (Second).
Section 316 of the Restatement (Second), supra, provides: “A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
“(a) knows or has reason to know that he has the ability to control the
“(b) knows or should know of the necessity and opportunity for exercising such control.”
Section 318 of the Restatement (Second), supra, provides: “If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor
“(a) knows or has reason to know that he has the ability to control the third person, and
“(b) knows or should know of the necessity and opportunity for exercising such control.”
Section 319 of the Restatement (Second), supra, provides: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”
Section 317 of the Restatement (Second), supra, provides: “A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
“(a) the servant
“(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
“(ii) is using a chattel of the master, and
“(b) the master
“(i) knows or has reason to know that he has the ability to control his servant, and
“(ii) knows or should know of the necessity and opportunity for exercising such control.”
Section 320 of the Restatement (Second), supra, provides: “One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm
“(a) knows or has reason to know that he has the ability to control the conduct of the third persons, and
“(b) knows or should know of the necessity and opportunity for exercising such control.”
Section 814A of the Restatement (Second), supra, provides: “(1) A common carrier is under a duty to its passengers to take reasonable action
“(a) to protect them against unreasonable risk of physical harm, and
“(b) to give them first aid after it knows or has reason to know that they are ill or iqjured, and to care for them until they can be cared for by others.
“(2) An innkeeper is under a similar duty to his guests.
“(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
“(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.”
The plaintiff argues that the trial court improperly relied on extrajurisdictional authority by citing Escobar v. Madsen Construction Co., 226 Ill. App. 3d 92, 589 N.E.2d 638 (1992). We conclude that the trial court’s reference to Escobar was proper and note that the plaintiffs argument is inconsistent with his own reHance on several out-of-state cases with fact patterns readHy distinguishable from the present case.
The plaintiff further argues that this court should recognize a special relationship between an employer and an employee because we previously have recognized the duty of a board of education to protect students from harm by third parties. See Purzycki v. Fairfield, supra, 244 Conn. 111. The relationship between a board of education and its minor students is materiaUy different from that between the chief of police and his subordinate adult officers. We therefore reject this claim.
The plaintiff also maintains that a duty exists pursuant to General Statutes § 31-49. Because a claim based on this statute was not raised before the trial court, however we decline to address it here. See Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control, 253 Conn. 453, 485, 754 A.2d 128 (2000) (we ordinarily will not review an issue that has not been properly raised before trial court); Practice Book § 60-5 (“court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial”).
Because we conclude that no relationship existed giving rise to a duty under the policy prong of our duty analysis, we do not consider whether the incident was foreseeable. See, e.g., Ryan Transportation, Inc. v. M & G Associates, supra, 266 Conn. 529 (“[i]n light of our determination that there did not exist a relationship involving . . . custody of or control over the plaintiff that would warrant the imposition of a duty to protect the plaintiff from third party conduct, we need not address the issue of foreseeability”).