Demond v. Project Serv., LLC

• Decision Date: 11 June 2019
• Docket Number: SC 20025, (SC 20026), (SC 20027), (SC 20028)
• Citation: 331 Conn. 816,208 A.3d 626
• Court: Connecticut Supreme Court
• Parties: Gregory DEMOND, Coadministrator (Estate of Benjamin Demond), et al. v. PROJECT SERVICE, LLC, et al.

331 Conn. 816

208 A.3d 626

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.

Argued April 30 and May 1, 2018

Officially released June 11, 2019

Daniel J. Krisch, with whom were Rachel J. Fain, Hartford, and, on the brief, Hartford, Michelle I. Schaffer, James M. Campbell, pro hac vice, and Jacob J. Lantry, for the appellant in Docket No. SC 20025 and the appellee in Docket No. SC 20028 (defendant Alliance Energy, LLC).

Randy Faust, pro hac vice, with whom were Stephen G. Murphy, Jr., and, on the brief, Christopher F. Wanat, Branford, for the appellant in Docket No. SC 20026 and the appellee in Docket No. SC 20028 (named defendant).

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, Hartford, for the appellants in Docket No. SC 20028 and the appellees in Docket Nos. SC 20025, SC 20026 and SC 20027 (plaintiffs).

Palmer, McDonald, Robinson, D'Auria, Mullins, Kahn and Ecker, Js.^*

ECKER, J.

Section 324A of the Restatement (Second) of Torts imposes negligence liability, when certain conditions are met, on a party whose negligent performance of a contractual undertaking causes foreseeable physical harm to a nonparty to the contract. The present appeals require us to determine the scope of this duty under unusual circumstances. For approximately one week preceding March 9, 2012, a temporarily homeless man named Willis Goodale lived out of his Jeep at the Montville Service Plaza (service plaza) located on Interstate 395 (I-395) in Montville. On the evening of March 9, after consuming a large amount of alcohol while parked at the service plaza, Goodale drove his Jeep onto I-395, where he caused a multivehicle crash. Benjamin Demond was killed. Demond's young sons, Alexander Demond (Alexander) and Nicholas Demond (Nicholas), were severely injured, as was Andrew Crouch, the driver of another vehicle on the roadway at the time. The present lawsuit was brought on behalf of these victims against the parties responsible for operating and maintaining the service plaza. The theory of negligence underlying the plaintiffs' lawsuit derives from a contract (concession agreement) between the named defendant, Project Service, LLC (Project Service), and the Connecticut Department of Transportation (DOT), which owned the service plaza. The concession agreement imposed the responsibility on Project Service to operate and maintain the service plaza in all respects. Project Service subcontracted the day-to-day operation of the service plaza, or certain portions of it, to the defendant Alliance Energy, LLC (Alliance), which, in turn, subcontracted the operation of the convenience mart, parking area and plaza to the defendant 4MM, LLC (4MM), while retaining control over the fuel service area. As part of the concession agreement, Project Service and its subcontractors agreed not to allow the consumption of alcohol or loitering at the service plaza.

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 § 324A of the Restatement (Second), to protect them from the increased risk of harm created by the defendants' failure to perform their contractual obligations.¹ The trial court rendered summary judgment on the plaintiffs' public nuisance claims but submitted their negligence claims to the jury. The jury returned a verdict in the plaintiffs' favor based on its express findings that the defendants were liable in negligence under the principles set forth in § 324A. The trial court rendered judgment against the defendants in the amount of $ 5,347,000.²

On appeal,³ the defendants contend that their contractual 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 not allow the consumption of alcohol or loitering at the service plaza (no alcohol/no loitering provisions).⁴

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 turn-around 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 others.⁵ The second amended complaint alleged that the March 9, 2012 crash was the result of the defendants' negligent conduct, including, among other things, their failure to notify state or local police that Goodale was living at the service plaza and consuming alcohol there, or to take other steps to prevent him from engaging in those activities, as required by the no alcohol/no loitering provisions of the concession agreement and the various subcontracts. The plaintiffs also alleged that the defendants had maintained a public nuisance by allowing Goodale to live and to consume alcohol at the service plaza.

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...