Opinion
No. FBT-CV-07-5007388
February 18, 2011
MEMORANDUM OF DECISION
The revised amended complaint of February 19, 2008 alleges that on January 29, 2007 the plaintiff, Janine Cannizzaro, and the defendant Stephan Marinyak, were operating vehicles proceeding northbound on Connecticut Route 15, the Merritt Parkway, in the vicinity of exit 48 in Trumbull. As Marinyak attempted to pass Cannizzaro's vehicle, he collided into it causing Cannizzaro catastrophic injuries, resulting in the amputation of her leg and a traumatic brain injury. The first count of the complaint alleges that Cannizzaro's injuries were caused by Marinyak's negligence. The second count alleges that her injuries were caused by Marinyak's recklessness. The third count alleges that Cannizzaro's injuries were caused by the negligence of the defendant Town Fair Tire.
The defendant Marinyak is referred to throughout the various filings with the court as both Stephan Marinyak and Stepan Marinyak.
The fourth, fifth and sixth counts are against the defendant Diane Jennings Mayo and are the subject of the motion before the court. The fourth count, entitled "negligent supervision, alleges that Mayo owned a home, located at 194 Black Rock Turnpike in Redding (the Redding property), at which various individuals, including Marinyak, were employed for a year prior to the time of the subject accident, doing remodeling, renovations and additions. Cannizzaro alleges that Mayo "caused to be served" alcoholic beverages to employees including Marinyak and that Mayo "knew or should have known that these employees or individuals who consumed alcoholic beverages on her premises would become intoxicated and thereafter leave the premises by driving on the roadways."
Specifically, the fourth count alleges that Cannizzaro's injuries were caused by Mayo's negligence in that: (a) Mayo allowed Marinyak, "during the course of his employment, to consume alcoholic beverages to the point where he became visibly intoxicated"; (b) "she provided alcoholic beverages to Marinyak to the point he became intoxicated"; (c) "she allowed her employees, including . . . Marinyak, to consume alcoholic beverages during the course of work when she knew or should have known that those same employees would then leave the place of employment and drive on the roadways"; (d) "she knew or should have known at various times prior to January 29, 2007 . . . Marinyak, as well as numerous other employees, consumed a large quantity of alcoholic beverages on the premises"; (e) "she never prohibited or prevented the consumption of alcoholic beverages by her employees, including . . . Marinyak, at the premises when in the exercise of reasonable care she should have prevented" it; (f) "she continued to serve or allowed to be served, alcoholic beverages to . . . Marinyak who was already impaired and visibly intoxicated prior to his leaving his employment"; (g) "in providing and allowing alcoholic beverages to be provided to her employees, including . . . Marinyak, she encouraged said employees to consume alcoholic beverages while on the job and become intoxicated"; (h) "she failed to supervise . . . Marinyak in a proper manner"; and (i) "she allowed Marinyak to drink alcohol openly while on duty and in her employ."
The fifth count, entitled "negligent service of alcohol," alleges that Mayo and her other employees served alcoholic beverages to Mayo's employees, that Mayo knew or should have known that those employees so served would become intoxicated and thereafter drive on the roadways, and that on the date of the subject accident, while on the job at Mayo's residence, Marinyak drank alcohol and then attempted to drive to his residence, severely injuring Cannizzaro in the process.
In particular, the fifth count alleges that Cannizzaro's injuries were caused by Mayo's negligence in that: (a) she or her employees "distributed unlimited quantities of alcoholic beverages to persons at the [Redding] residence including . . . Marinyak"; (b) "they distributed unlimited quantities of alcoholic beverages to . . . Marinyak when they knew or should have known he was visibly impaired by alcohol"; (c) "they failed to properly supervise persons at the . . . residence, including Marinyak, when they knew or should have known that alcoholic beverages were being consumed by persons on that premises"; (d) "they continued to serve alcoholic beverages to . . . Marinyak who was already impaired"; (e) "they should not have offered unlimited quantities of alcohol to persons at the . . . residence, including . . . Marinyak; and (f) "they should not have provided alcohol to . . . Marinyak and encourage[d] him to consume it."
The sixth count, entitled "reckless or wanton service of alcohol," alleges that the plaintiff's injuries "were caused by the reckless disregard of . . . Mayo for the safety of others in that: (a) "it was a common occurrence that alcoholic beverages in unlimited quantities would be served to employees at her home"; (b) "the employees were not required to remain on the premises or prevented from driving vehicles"; (c) "the consumption of alcoholic beverages was encouraged"; and (d) "Marinyak was served and allowed to consume alcohol when he was visibly intoxicated."
Mayo has moved for summary judgment on the fourth, fifth and six counts of the complaint and Cannizzaro has objected thereto. The parties have submitted the following evidence for the court's consideration: (1) a State Police Investigation Report of the accident; (2) Mayo's affidavit; (3) an excerpt from Mayo's deposition; (4) Mayo's answers to interrogatories; (5) a transcript of Marinyak's in-court testimony at a hearing prior to the return date; (6) the complete deposition transcript of John Wanat, an electrical contractor who was informally retained by Mayo to act as a general contractor on the Redding property renovations; and (7) Marinyak's complete deposition transcript.
I
Before addressing the merits of Mayo's motion, the court addresses two preliminary issues raised by Cannizzaro. First, Cannizzaro states that Mayo "has only partially responded to relevant discovery requests." Nevertheless, she has not requested "a continuance to permit affidavits to be obtained or discovery to be had. See Practice Book § 17-47." Commissioner of Administrative Services v. Jenkins, 47 Conn.Sup. 334, 337, 792 A.2d 915 (2002).
"The [plaintiff] could have submitted an affidavit in opposition to the defendant's motion for summary judgment asserting that discovery was necessary in order for the plaintiffs to present evidence essential to justify that opposition. Such affidavits are provided for in Practice Book § 17-47, which provides: `Should it appear from the affidavits of a party opposing the motion for summary judgment that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.'" Gould v. Mellick Sexton, CT Page 5567 263 Conn. 140, 152, 819 A.2d 216 (2003). "In the absence of an affidavit stating reasons for the defendants' inability to obtain evidentiary affidavits, the court's discretionary authority to deny a motion on such ground is not invoked." Chekroun v. Weil, Superior Court, judicial district of Fairfield, Docket No. CV 09 5022360 (September 1, 2010); see Sheridan v. Board of Education, 20 Conn.App. 231, 238, 565 A.2d 882 (1991). In the absence of a request for a continuance by Cannizzaro, supported by affidavit, the court deems the issue of Mayo's purported noncompliance with discovery requests not properly or distinctly raised.
Second, citing Raboin v. North American Industries, Inc., 57 Conn.App. 535, 538, cert denied, 254 Conn. 910 (2000), Cannizzaro argues that the issue of duty is a mixed question of law and fact, inappropriate for summary judgment.
In Raboin, the plaintiff, an independent contractor, suffered injuries as a result of an electric shock he received while working in a foundry building owned by the defendant General Signal and being used by the co-defendant North American Industries, Inc. Because of a previous incident in which an employee of North American had received a shock, North American had "summoned employees of General Signal to investigate the cause of the shock. General Signal employees investigated and were not able to determine the source of the shock." Id., 536-37. The plaintiff sued General Signal and North American alleging that his injuries were caused by their negligence.
General Signal moved for summary judgment, relying on the doctrine that a contractee or proprietor is not liable for injuries caused by an independent contractor to another person. Id., 538. The trial court granted the motion; the Appellate Court reversed, observing that "there were several exceptions to the nonliability rule," one of which was "where the employer retains control of the premises . . ." Id., 539. The court held that "[t]he first exception to the nonliability rule applies to the current situation because in inspecting the foundry, General Signal retained control of the premises. The trial court improperly assumed that the inspection by General Signal was reasonable on basis of the erroneous conclusion that General Signal did not owe the plaintiff a duty to provide a safe working environment. A genuine issue of material fact exists as to whether the inspection was reasonable given General Signal's assumption of control over the foundry area where the independent contractors were working." Id. Thus, in CT Page 5568 Raboin, summary judgment was denied not simply because the issue of duty, in the abstract, involved elements of both fact and law but because, viewing the evidence in the light most favorable to the nonmovant, there was a genuine issue of material fact as to whether the movant had owed a duty and breached it. Id., 540-41.
Cases before and after Raboin have confirmed that even where an issue involves a mixed question of law and fact, if, after viewing the evidence in a light most favorable to the nonmovant, there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law and summary judgment should be granted. See Ham v. Greene, 248 Conn. 508, 522, 729 A.2d 740 (1999); Crone v. Connelly, 74 Conn.App. 788, 800-01, 813 A.2d 1084 (2003).
II
The court turns to the merits of the motion for summary judgment. "The party moving for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which under applicable principles of substantive law, entitle him to judgment as a matter of law. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . If appropriate, a judgment shall be rendered 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 thus entitled to judgment as a matter of law . . . A `material fact' is simply a fact which will make a difference in the result of the case . . . and a summary disposition should be rendered in the limited instances where the evidence is such that no room for disbelief could exist in the minds of the jury and in circumstances which would require a directed verdict for the moving party . . . As, generally speaking, summary judgment is an attempt to dispose of cases in a manner which is speedier and less expensive for all concerned than a full-dress trial . . . the function of the trial court is only to determine whether there is a genuine issue as to any material fact, but not to decide that issue if it does exist until the parties are afforded a full hearing . . . Issue finding, rather than issue determination, is the key to the procedure." Yanow v. Teal Industries, Inc., 178 Conn. 262, 268-69, 422 A.2d 311 (1979); see Practice Book § 17-49.
Practice Book § 17-49 provides: "The judgment sought 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 as a matter of law."
Disposition of Mayo's motion depends on what, if any, duty she had to third parties, such as Cannizzaro, with respect to Marinyak's drinking alcohol on the job and whether she breached that duty. Mayo argues that it was not foreseeable that Marinyak would drink on the job site, get drunk and harm another person. Mayo further argues that at the time of the accident, and for the three preceding days, she was in Florida, and therefore could not have observed any drinking at her home on the day of the accident. In addition, she contends that she never provided alcohol to anyone working at her home. She also argues that she never knew that anyone working at her home was drinking alcohol on the job.
Cannizzaro contends that there are genuine issues of material fact precluding the entry of summary judgment in Mayo's favor. In particular, Cannizzaro argues that Mayo owed her a duty to exercise reasonable care by virtue of the facts and circumstances surrounding Mayo's employer-employee relationship with Marinyak. Moreover, Cannizzaro contends that Marinyak and other of Mayo's employees regularly consumed alcohol while working at the Redding property, that Mayo's son had occasionally purchased beer for the employees, that Marinyak consumed alcohol at the Redding property on the day of the accident and that his blood alcohol content level was 0.2% at the time of the accident. Cannizzaro further argues that Mayo knew or "should have known that the drinking of alcohol was taking place since it was happening for approximately a year and a half before the subject accident." Finally, Cannizzaro argues that drinking on the job is against the public policy of Connecticut.
The plaintiff does not allege that Mayo is vicariously liable for Marinyak's tortious acts. "Vicarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of policy that one person should be liable for the act of the other. Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another . . . Thus, a principal whose liability rests solely upon the doctrine of respondeat superior and not upon any independent act of the principal is not a joint tortfeasor with the agent from whose conduct the principal's liability is derived . . . Essentially, aside from the relationship between the parties creating the doctrine of vicarious liability, the principal is not a tortfeasor in the true sense of the word because he is not independently liable based upon his own independent actionable fault." (Citations omitted; internal quotation marks omitted.) Alvarez v. New Haven Register, 249 Conn. 709, 720-21 (1999). Marinyak had left work and was on his way home when the accident occurred. Hence, he was not within the scope of his employment. See True v. Longchamps, Inc., 171 Conn. 476, 478, 370 A.2d 1018 (1976) (As a general matter, "an injury sustained by an employee on a public highway while traveling to or from his place of employment is not compensable."). The plaintiff's claims against Mayo all involve active negligence, by act or omission.
At the outset, the court finds that there is no genuine issue of material fact that Mayo never served, provided or distributed alcohol to any of the employees. Mayo herself so states in her affidavit and this evidence is corroborated by the deposition testimony of Wanat and buttressed by the deposition testimony of Marinyak. There is no evidence to the contrary. See Vitale v. Kowal, 101 Conn.App. 691, 699-701, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007) (uncontroverted evidence from defendant that, inter alia, he did not serve alcohol to plaintiff's decedent nor encourage him to drink alcohol warranted granting defendant's motion for summary judgment, notwithstanding plaintiff's claim that defendant should not be believed.).
In her affidavit, Mayo states that she was in Florida from January 26, 2007 through January 31, 2007 visiting her daughter; she never caused any alcoholic beverages to be served to any of the individuals working on her property; she never authorized any agents, servants, or employees to cause any alcoholic beverages to be served to any of the individuals working on her property; she never provided alcoholic beverages to any of the individuals working on her property; she never provided alcoholic beverages to Stephan Marinyak; she never allowed any employees to consume alcoholic beverages during the course of their employment; she had no knowledge that any of the individuals working on her property ever consumed alcoholic beverages while working; she never saw any of the individuals working on her property consume alcoholic beverages while working; she never allowed any of the individuals working on her property to openly consume alcoholic beverages; she never authorized any agents, servants, or employees to encourage any alcoholic beverages to be consumed by any other employees working on her property; she never encouraged any alcoholic beverages to be consumed by anyone working on her property; and, she was not aware of her son providing any alcoholic beverages to workers on her property.
The fourth and fifth counts of the complaint against Mayo sound in negligent supervision and negligent service of alcohol. "Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so." Dean v. Hershowitz, 119 Conn. 398, 407-08, 177 A. 262 (1935). "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care . . . [T]he test for the existence of a legal duty of care entails (1) a determination of whether 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, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . .
"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).
Connecticut subscribes to 2 Restatement (Second), Torts § 315. Murdock v. Croughwell, 268 Conn. 559, 566-73, 848 A.2d 363 (2004); Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996); Bohan v. Last, 236 Conn. 670, 679, 674 A.2d 839 (1996); Kaminski v. Fairfield, 216 Conn. 29, 33-34, 578 A.2d 1048 (1990); Kolodziej v. Durham Agricultural Fair BVSN., 96 Conn.App. 791, 901 A.2d 1242 (2006). Section "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.'" Murdock v. Croughwell, supra, 268 Conn. 567.
2 Restatement (Second), Torts § 315 consists of two paragraphs. Paragraph (a) of § 315 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 . . ." 2 Restatement (Second), supra, § 315(a).
"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. The comments to § 315(a), however, are particularly enlightening in this regard because they reference corresponding Restatement (Second) sections that delineate precisely those relationships that fall within the purview of § 315(a). See 2 Restatement (Second), supra, § 315, comments (a) through (c). `The relations between the actor and a third person which require the actor to control the third person's conduct are stated in §§ 316-19.' Id., comment (c).
"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 imposes a duty on a parent to prevent his minor child from intentionally harming a third party. Section 318 imposes a duty on the possessor of land or chattels to control the conduct of a licensee. Finally, § 319 requires those exercising custodial control over an individual, such as sheriffs or wardens, to prevent such an individual from harming third parties. An employment relationship, such as that between [Mayo] and [Marinyak] is not within the scope of these sections.
"Section 317 of the Restatement (Second) does address a duty arising out of an employment relationship but by its express terms, § 317 is inapposite to the present case." (Footnotes omitted.) Murdock v. Croughwell, supra, CT Page 5572 268 Conn 568-70. 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." (Emphasis added.)
In Murdock v. Croughwell, supra, 268 Conn. 559, the Supreme Court interpreted this section of the Restatement. In Murdock, the plaintiff and the defendant Cancel, both off-duty Hartford police officers were involved in a physical altercation in a restaurant parking lot. The plaintiff sued the named defendant, Croughwell, as chief of police, alleging that he failed to supervise Cancel properly. The jury returned a verdict for the plaintiff against Croughwell. "The jury, through their interrogatories, specifically found that . . . Croughwell was negligent because `he knew or should have known that [Cancel] had violent and aggressive tendencies which placed co-workers at risk and failed to take any action to protect or warn Cancel's subordinates . . . of such risk; he failed to properly investigate or discipline [Cancel] as to incidents of violent and aggressive behavior; [and] he failed to train or retrain [Cancel] . . . [to] prevent or minimize his violent and aggressive tendencies . . .'" Id., 564. The jury also found that Cancel was not acting within the scope of his employment at the time of the assault. Id., 564 n. 8.
The trial court set aside the verdict on the basis that "Croughwell had no duty to protect the plaintiff or to control the off-duty conduct of Cancel." Id., 561. The Supreme Court affirmed. The court held that Restatement (Second), Torts § 317 did not apply. "Section 317 imposes a duty on an employer to control the conduct of an off-duty employee when the conduct complained of occurs on the employer's premises or utilizes a chattel of the employer's, if the employer knows or has reason to know that he can control the employee and recognizes the necessity of doing so. Therefore, § 317 does not apply in the present case because the altercation between the plaintiff and Cancel occurred off department premises and did not involve any chattel of Croughwell or the city." Id., 570. This interpretation is supported by Comment b to Restatement (Second), Torts § 317. Comment b states: " Master's duty to police his premises and use made of his chattels. A master is required to police his own premises and those upon which, though in the possession of another, he has a privilege of entry for himself and his servants, to the extent of using reasonable care to exercise his authority as a master in order to prevent his servant from doing harm to others. So too, he is required to exercise his authority as master to prevent them from misusing chattels which he entrusts to them for use as his servants. This is true although the acts of the servant while upon the premises or in the use of the master's chattels are done wholly for the servant's own purposes and are, therefore, outside the course of the servant's employment and this does not subject the master to liability under the rules of the law of Agency. On the other hand, the master as such is under no peculiar duty to control the conduct of his servant while he is outside of the master's premises, unless the servant is at the time using a chattel entrusted to him as servant. Thus, a factory owner is required to exercise his authority as master to prevent his servants while in the factory yard during the lunch hour from indulging in games involving an unreasonable risk of harm to persons outside the factory premises. He is not required, however, to exercise any control over the actions of his employees while on the public streets or in a neighboring restaurant during the lunch interval, even though the fact that they are his servants may give him the power to control their actions by threatening to dismiss them from his employment if they persist." (Emphasis in original.) See also Prugue v. Monley, 29 Kan.App.2d 635, 28 P.3d 1046 (2001); Thies v. Cooper, 243 Kan. 149, 154, 753 P.2d 1280 (1988) (stating: "The majority of jurisdictions have refused to impose liability on employers who have furnished liquor to employees for injury which occurred when the employee became intoxicated and caused injury to a third party off the premises"); Joly v. Northway Motor Car Corporation, 132 A.D.2d 790-91, 517 N.Y.S.2d 595 (1987).
Joly v. Northway Motor Car Corporation, 132 A.D.2d 790-91, 517 N.Y.S.2d 595 (1987), was subsequently followed by the New York Court of Appeals in D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896 (1987).
Thus, under Murdock, the tortious acts or omissions of the employee which injure the plaintiff must occur on the employer's premises, not just the negligent supervision of the employer, unless the employee is using a chattel of the employer. Since the tortious acts of Marinyak occurred off of Mayo's premises, section 317 of the Restatement (Second), Torts is inapplicable and the general rule of § 315, that there is no duty to control the conduct of another person to prevent him from causing physical harm to another applies. See Bruce v. Chas Roberts Air Conditioning, 166 Ariz. 221, 228, 801 P.2d 456 (App. 1990) (stating that the employee's on-premises "excessive drinking did not in and of itself create an unreasonable risk of bodily harm to others. What did so was [the employee's] conduct in driving his pickup truck while intoxicated. That conduct took place away from [the employer's] business premises and some three hours later. [The employer] had no duty under § 317 to exercise care to control [the employee's] conduct in any respect once he left the picnic and headed for home.").
Citing General Statutes § 31-284 for support, the plaintiff argues that drinking alcohol on the job is against public policy. The court disagrees. "`Primarily, it is for the legislature, which is the arbiter of public policy, to determine what it shall be.' General Motors Corporation v. Mulquin, CT Page 5581 134 Conn. 118, 132, 55 A.2d 732 (1947). "A statute declares public policy." Laurel Bank Trust Co. v. Mark Ford, Inc., 182 Conn. 437, 442, 438 A.2d 705 (1980)."General Statutes § 31-284 simply provides that workers' "compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication." See, e.g, Paternostro v. Arborio Corp., 56 Conn.App. 215, 742 A.2d 409 (1999). Neither § 31-284 nor any other statute or administrative regulation identified by the parties prohibits drinking alcohol on the job. There is a wide range of human behavior that is foolish but neither illegal, tortious or against public policy.
The court next turns to paragraph (b) of Restatement (Second) § 315. 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) imposes a duty of care upon a person who takes custody of another person so as to deprive him of his normal powers of self-protection. As the comments to § 320 make clear, this rule is applicable to sheriffs, jailers, officials charged with the care of mentally impaired individuals, private schools and hospitals and public schools. 2 Restatement (Second), supra, § 320, comment (a). Section 314A of the Restatement (Second) imposes a duty upon common carriers, innkeepers and possessors of land who hold their land open to the public. It also contains a provision providing for care of those who have been taken into custody and deprived of their normal powers of self-protection. 2 Restatement (Second), supra, § 314A (4)." Murdock v. Croughwell, supra, 268 Conn. 570-71. Mayo had no such relationship with the plaintiff. In fact, she had no relationship with the plaintiff. Therefore neither paragraph of 2 Restatement (Second), Torts § 315 applies to the facts of this case. Accordingly, Mayo owed no duty to the plaintiff to supervise or control Marinyak.
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 him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor
"(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 314A 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 injured, 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 relies largely on Seguro v. Cummiskey, 82 Conn.App. 186, 194, 844 A.2d 244 (2004), in her argument that Mayo owed her a duty to supervise Marinyak. In Seguro, the Appellate Court upheld a verdict against a tavern owner whose employee bartender drank on the job, with the owner's knowledge, becoming intoxicated and later causing a motor vehicle accident resulting in serious injuries to the plaintiff. Id., 188-89.
Seguro, however, is not applicable to the facts here because, as the Seguro court clearly and repeatedly indicated, its holding was limited to taverns and their employees. The trial court in Seguro had denied the defendant's motion for a directed verdict based on "the proposition that Connecticut recognizes a cause of action for negligent supervision of tavern employees." (Footnote omitted.) Id., 189. On appeal, the Seguro court agreed, holding that "employers have a duty to supervise tavern employees at the workplace as to their consumption of intoxicating liquor." (Emphasis added.) Id., 198. The duty to supervise was predicated on two bases. The first basis was that "the jury could have found it foreseeable that the defendant's failure to prevent [his employee's] drinking could have resulted in [the employee's] driving home from work while intoxicated and injuring a third party." Id., 194-95.
The court recognized that foreseeability alone "cannot by itself mandate a determination that a legal duty exists." Id., 192. An additional "determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results," was required. Id., 193. Accordingly, the second basis for the finding of a duty in CT Page 5576 Seguro was public policy associated with the business of selling alcohol. "We are persuaded . . . that proprietors of establishments that serve alcohol do indeed have a duty to protect third parties from the conduct of bartenders and other servers who drink intoxicating liquor on the job." (Emphasis added.) Id., 191. "We must therefore determine whether it is foreseeable that the negligent supervision of an employee in a bar or restaurant that results in the consumption of intoxicating liquor on those premises may result in harm to third parties after the employee leaves the premises. We find that such an outcome is indeed foreseeable." (Emphasis added.) Id., 193. Addressing the relevant policy factors in determining what if any duty was owed by the defendant in Seguro, the court stated: "We first consider the normal expectations of the participants in the underlying activity, as well as the expectations of third persons regarding their safety with respect to the supervision of employees who serve alcohol. The underlying activity is the consumption of alcoholic beverages in bars and restaurants. In light of our state's Dram Shop Act, General Statutes § 30-102, in which sellers may be liable in negligence for selling alcohol to an intoxicated patron who later injures a third party, employees are entrusted to make important decisions regarding the service of alcohol. It follows that the same employees who must monitor strictly the amount others drink must themselves be restricted from drinking intoxicating liquor in a manner that would compromise the safety of those who would encounter them either at work or after work. We thus conclude that bar and restaurant owners could expect that they might be held liable if their employees cause harm to third parties after consuming intoxicating liquors on the job. In addition, third parties could expect that their safety will not be compromised due to the negligent supervision of employees who serve alcohol."
"The second factor requires us to consider the benefits, if any, of encouraging the underlying activity — the consumption of alcoholic beverages in bars and restaurants. It is not illegal to consume alcoholic beverages, and many establishments derive their business from that legal activity. Further, many businesses legitimately rely on the sale of alcohol, and our laws have protected a business' right to do so." (Emphasis added.) Id., 195-96. Nonetheless, based on considerations of public policy the court concluded that: "Establishment of such a duty [to supervise employees to prevent their irresponsible consumption of liquor] will therefore encourage the responsible consumption of alcoholic beverages in bars and restaurants." (Emphasis added.) Id., 196.
Next, the Seguro court considered "the potential for increased litigation." Id., 196. The court concluded that: "Extending the scope of liability to include the negligent supervision of employees who sell liquor merely would hold accountable those who have not taken responsibility to implement reasonable policies regarding the consumption of alcohol during the hours of employment." (Emphasis added.) Id., 196.
Finally, in considering the decision of other jurisdictions, the court observed that "[r]elevant case law is more limited with respect to negligent supervision of tavern employees. Courts have recognized a duty, however, under circumstances in which an employee's intoxication has a connection to his employment." (Emphasis added.) Id., 197.
The Seguro court found: "It is consistent with the development of our law to recognize a duty of employers at an establishment that serves liquor to third parties to supervise employees and to protect the public from an employee who drinks on the job." (Emphasis added.) Id., 198.
"It is the general rule that a case resolves only those issues explicitly decided in the case . . . Furthermore, it is well to note that traditional doctrine is that the precedential value of a decision should be limited to the four corners of the decision's factual setting . . . [T]he statement of a rule of law in a given case must be tempered by the facts which give rise to its pronouncement." (Citations omitted; inter al quotation marks omitted.) State v. Ouellette, 190 Conn. 84, 91-92, 459 A.2d 1005 (1983). Ultimately, the Seguro court found: "It is consistent with the development of our law to recognize a duty of employers at an establishment that serves liquor to third parties to supervise employees and to protect the public from an employee who drinks on the job." (Emphasis added.) Seguro v. Cummiskey, supra, 82 Conn.App. 198. Thus, the holding in Seguro does not control this case where Mayo was not the proprietor of a tavern nor the server of alcohol.
Moreover, Seguro is inconsistent with Murdock v. Croughwell in its interpretation of the Restatement. In Seguro, the Appellate Court rejected the argument of the defendant-employer, based on 2 Restatement (Second), Torts § 317, that it owed "no duty to control an employee outside the scope of employment." Id., 194 n. 8. In doing so, the court stated: "The negligence in question did not occur off-site, but rather involved the actions and inactions of the defendant in failing to supervise [the employee] as to consumption of intoxicating liquor." Id. This interpretation is contrary to the interpretation of the same Restatement section in Murdock v. Croughwell, supra, in which the Supreme Court stated: "Section 317 imposes a duty on an employer to control the conduct of an off-duty employee when the conduct complained of occurs on the employer's premises or utilizes a chattel of the employer's . . . Therefore, § 317 does not apply in the present case because the altercation between the plaintiff and Cancel occurred off department premises and did not involve any chattel of Croughwell or the city." (Emphasis added.) Murdock v. Croughwell, supra, 268 Conn. 570. Thus, contrary to Seguro, under Murdock the tortious actions of the employee that injure another person, not just the employer's negligent supervision, must occur on the employer's premises. Here, the tortious acts of Marinyak that injured the plaintiff occurred off of Mayo's premises. Accordingly, Mayo did not owe a duty to the plaintiff. The motion for summary judgment of the defendant Diane Jennings Mayo is granted.
Notably, the opinion in Murdock v. Croughwell was officially released 28 days after the release of the opinion in Seguro v. Cummiskey, supra, 82 Conn.App. 186. Therefore, the Appellate Court did not have the benefit of the Murdock court's analysis of the Restatement when it issued its opinion.