Duty of Care & Foreseeability

July 17, 2009

By: David K. Jaffe

Imperative to a Negligence Cause of Action

"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. 2 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 25:05, pp. 25-27. Although it has been said that no universal test for duty has ever been formulated; see e.g., W. Prosser & W. Keeton, Torts (5 th Ed. 1984) § 53, p. 358; the threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. Jaworski v. Kiernan, 241 Conn. 399, 405 (1997).

The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised. By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary person in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? See Frankovitch v. Burton, 185 Conn. 14, 20-21 (1981).

A simple conclusion that the harm to the plaintiff was foreseeable, however, 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 which lead the law to say that the plaintiff is entitled to protection. While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. The problem for the law is to limit the legal consequences of wrongs to a controllable degree." Gomes v. Commercial Union Ins. Co, 258 Conn. 603, 615 (2001).

The 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. Lodge v. Arett Sales Corp., 246 Conn. 563, 572 (1998).

In a recent bellwether case, Monk v. Temple George Associates, LLC, 273 Conn. 108 (2005), the Connecticut Supreme Court, in attempting to make a determination on the issue of foreseeability, used a "totality of the circumstance" approach in analyzing the situation, finding that the defendant conducted it business in the evening in an area where serious crimes had occurred in the vicinity and that the defendant knew or should have known that such serious crimes had occurred. With these basic facts, the Court in Monk found that it was "quite foreseeable that ... an attack on a patron of the premises could occur, whether spontaneously or as precipitated by an argument at one of the neighboring clubs. It is also probable that the presence of a parking attendant would have decreased the likelihood that such an attack would occur. Monk, supra, at 115.

In Monk, the plaintiff, after parking her car in the defendant's parking facility, went to a nearby nightclub where she was accosted by her husband's former girlfriend who then followed her back to the defendant's parking lot and criminally attacked her, causing severe injuries. The court examined the public policy in support of the 'totality of the circumstances' test for determining whether a duty is owed in criminal attack cases and concluded that such a test was more consistent with the public policy goals of Connecticut's legal system and jurisprudence that any of the other approaches to this issue. In doing so, the court noted that "[w]e 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 top those parties that reasonably may foresee harm on their premises." Monk, supra, at 122.

Monk recognized that the analysis of duty necessarily included public policy considerations such as (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.

If the facts show that an attack was intentional, it does not mitigate the defendant's foreseeability. The Court in Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 609 (1995) expressly disavowed any intention to elevate the burden of proof involving intentional conduct beyond the civil standard of a "fair preponderance of the evidence" to the requirement of a "fairly strong degree of certainty" that a criminal or intentional intervening act is within the scope of the risk of a negligent actor's conduct.