PALMER, J.
The plaintiff Olga Rivera (Olga) commenced this negligence action, both in her individual capacity and as next friend and parent of the named plaintiff, Adriana Ruiz (Adriana),
The record reveals the following facts, most of which are undisputed.
On May 14, 2008, Saribel Cruz resided in a third floor apartment in the building with her ten year old son, Luis Cruz (Luis). Olga and Adriana, who is Saribel Cruz' niece, resided in another apartment in the building. On that day, Luis and Adriana, along with as many as a dozen other children, all of whom were being watched by several adults, were playing in the backyard. Luis decided that he wanted to see if he could break a piece of concrete. To that end, at about 4 p.m., Luis picked up a piece of concrete from the backyard that weighed approximately eighteen pounds, carried it up to his family's third floor apartment, and dropped it from the window or balcony of that apartment to the ground below. Luis saw his cousin Adriana below and yelled, urging her to get out of the way, but the rock struck her on the head, causing very serious injuries, including a crushed skull, traumatic brain injury and paralysis on her right side. As a result of these injuries, Adriana had two surgeries and had been hospitalized for nearly two months.
The plaintiffs subsequently commenced this action against the defendant, alleging that the defendant was negligent in failing to remove the loose concrete and other debris from the backyard of the apartment building, and that this negligence was a cause of Adriana's injuries because it was a substantial factor in producing those injuries.
The plaintiffs appealed to the Appellate Court from the judgment of the trial court. The Appellate Court reversed the trial court's judgment, concluding that the trial court, in evaluating whether Adriana's injuries were foreseeable, failed to consider whether the harm that she suffered was within the general scope of the risk created by the defendant's failure to remove potentially dangerous debris from the backyard and, instead, improperly focused on the specific manner in which the injuries occurred. See Ruiz v. Victory Properties, LLC, supra, 135 Conn.App. at 126-27, 43 A.3d 186. In other words, the Appellate Court determined that the trial court had framed the nature of the risk in too narrow of terms. See id. In its view, the risk of harm created by the defendant's conduct was not, as the trial court had concluded, a child carrying a piece of concrete to a third floor apartment and dropping it to the backyard below but, rather, that of a child "getting hurt by a large [piece of concrete] thrown by another child," conduct that, according to the Appellate Court, a fact finder reasonably could find to be foreseeable. Id., at 127, 43 A.3d 186. The Appellate Court further concluded that imposing a duty of care on the defendant was in accord with this state's long-standing public policy requiring a landlord to maintain the common areas of a rental property in a reasonably safe condition, particularly when, as in the present case, the landlord is aware that children regularly play in those areas. See id., at 129-30, 43 A.3d 186.
Judge Alvord dissented from the majority opinion of the Appellate Court. She agreed with the trial court that the foreseeability inquiry should be characterized more narrowly, that is, "as whether the defendant would reasonably foresee that a ten year old child would pick up an eighteen pound cinder block, carry it up several flights of stairs to the third floor of the apartment building and drop it on the head of [a] seven year old...." (Emphasis omitted.) Id., at 137-38, 43 A.3d 186 (Alvord, J., dissenting). Believing that such a series of events was not reasonably foreseeable, and that imposing a duty of care on the defendant would lead to increased litigation and drive up the costs of property ownership, Judge Alvord concluded that the defendant owed Adriana no duty of care. Id., at 138 and n. 7, 43 A.3d 186 (Alvord, J., dissenting).
On appeal to this court following our granting of certification, the defendant contends that the Appellate Court incorrectly concluded that the defendant owed Adriana a duty of care and improperly rejected its claim that, even if the defendant did owe her such a duty, the defendant's conduct was not a proximate cause of her injuries. We disagree with both contentions and, accordingly, affirm the judgment of the Appellate Court.
Our analysis of the defendant's claim is governed by the following principles. A cause of action in negligence is comprised of four elements: duty; breach of that duty; causation; and actual injury. E.g., Mirjavadi v. Vakilzadeh, 310 Conn. 176, 191, 74 A.3d 1278 (2013). Whether a duty exists is a question of law for the court, and only if the court finds that such a duty exists does the trier of fact consider whether that duty was breached. See, e.g., id.
Foreseeability is determined in the context of causation, which has two components. With respect to the first component, causation in fact, we ask whether the injury would have occurred but for the actor's conduct. E.g., Winn v. Posades, 281 Conn. 50, 56, 913 A.2d 407 (2007). The second component of causation is proximate cause. Id. "Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions." First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 604, 724 A.2d 497 (1999). "The test for proximate cause is whether the defendant's conduct was a substantial factor in producing the plaintiff's injury.... This substantial factor test reflects the inquiry fundamental to all proximate cause questions, namely, whether the harm [that] occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." (Citation omitted; internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 321, 852 A.2d 703 (2004).
Additionally, it is well established that a landlord owes a duty to maintain the common areas of an apartment building in a reasonably safe condition for the benefit of the tenants who reside in the building. See, e.g., Giacalone v. Housing Authority, 306 Conn. 399, 407-408, 51 A.3d 352 (2012); see also LaFlamme v. Dallessio, 261 Conn. 247, 256, 802 A.2d 63 (2002) ("[t]he general rule regarding premises liability in the landlord-tenant context is that landlords owe a duty of reasonable care as to those parts of the property over which they have retained control" [internal quotation marks omitted]). "What defines the landlord's duty is the oblitation to take reasonable measures to ensure that the space over which it exercises dominion is safe from dangers, and a landlord may incur liability by failing to do so." (Emphasis omitted.) Giacalone v. Housing Authority, supra, at 408, 51 A.3d 352. "The ultimate test of the duty is to be found in the reasonable foreseeability of harm resulting from a failure to exercise reasonable care to keep the premises reasonably safe." Noebel v. Housing Authority, 146 Conn. 197, 200, 148 A.2d 766
Finally, whether the injury is reasonably foreseeable ordinarily gives rise to a question of fact for the finder of fact, and this issue may be decided by the court only if no reasonable fact finder could conclude that the injury was within the foreseeable scope of the risk such that the defendant should have recognized the risk and taken precautions to prevent it. See, e.g., Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 331-32 and n. 25, 87 A.3d 546 (2014). In other words, foreseeability "becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Internal quotation marks omitted.) Gutierrez v. Thorne, 13 Conn.App. 493, 501, 537 A.2d 527 (1988). Guided by these principles, we now turn to the merits of the defendant's claims.
The defendant first contends that a landlord's duty to exercise reasonable care in maintaining the common areas of leased premises is inapplicable to the present case because the harm that Adriana suffered was not foreseeable. In support of this contention, the defendant argues that "Connecticut law does not require one to anticipate that a child will misuse an inherently harmless object in a dangerous way," and that the "buckets, trash, rocks and broken concrete pieces" at issue in this case are "no more dangerous than many common objects occurring in nature or appearing routinely in homes [or] yards where children live and play." (Internal quotation marks omitted.) The defendant further contends that, even if such objects could be considered dangerous, Adriana's injuries are not of the kind that one reasonably would expect to result from the misuse of those objects, and, in any event, public policy militates against imposing a duty under the facts and circumstances presented.
We disagree with the defendant's first argument because we reject its underlying premise, namely, that broken concrete pieces, discarded buckets, rocks and other similar debris are inherently harmless when left in the backyard of an apartment building where children are known to play. Indeed, even the trial court, which ultimately agreed with the defendant that Adriana's injuries were not foreseeable, recognized that, "[i]n a backyard where children routinely play outside, a landlord may have a duty to attempt to prevent foreseeable hazards," which would include a duty "to clean up and remove loose or sharp concrete [on] which a child might twist an ankle or fall and cut herself." In her dissenting opinion in the Appellate Court, Judge Alvord also acknowledged that "[i]t certainly was foreseeable that a child might trip and fall over the debris or even throw a piece of concrete at another child." (Emphasis added.) Ruiz v. Victory Properties, LLC, supra, 135 Conn.App. at 138, 43 A.3d 186 (Alvord, J., dissenting). For our part, we are hard pressed to conceive of any set of circumstances in which it would be reasonable for a landlord, on the basis of his or her belief that pieces of broken concrete pose no inherent danger to children, to allow such debris to accumulate in an area frequented by children at play. Even if we agreed, however, that pieces of broken concrete are inherently harmless, we are aware of no authority that stands for the proposition that a person cannot be held liable for injuries resulting from such objects.
Consequently, "[o]ur cases have attempted to safeguard children of tender years from their propensity to disregard dangerous conditions. It definitely has been established by frequent repetition of the statement that the degree of care required of children is such care as may reasonably be expected of children of similar age, judgment and experience.... As to the care required of others in relation to children, the same propensity of children has been taken into consideration in evaluating the negligence of these others."
As we previously indicated, both the trial court and Judge Alvord, in her dissenting opinion in the Appellate Court, concluded that the harm that befell Adriana in this case was not foreseeable. See Ruiz v. Victory Properties, LLC, supra, 135 Conn.App. at 134, 138, 43 A.3d 186 (Alvord, J., dissenting). Judge Alvord, in particular, reasoned that, although it was foreseeable that a child might throw a piece of concrete at another child, the catastrophic injuries that Adriana sustained were not within the scope of that risk and, therefore, could not reasonably have been anticipated. See id., at 138, 43 A.3d 186 (Alvord, J., dissenting). On appeal, the defendant urges us to adopt Judge Alvord's reasoning and reject the reasoning of the Appellate Court majority, which, as we have explained, concluded that the trial court and Judge Alvord improperly had framed the foreseeability question too narrowly to encompass only the specific facts of this case, namely, whether it was foreseeable that a ten year old child would carry a heavy piece of concrete from the backyard to a third floor balcony and drop it on Adriana's head. We disagree that the Appellate Court majority's analysis of foreseeability was improper. To the contrary, as this court previously has explained, "[as] long as harm of the general nature as that which occurred is foreseeable there is a basis for liability even though the manner in which the accident happens is unusual, bizarre or unforeseeable." Pisel v. Stamford Hospital, 180 Conn. 314, 333, 430 A.2d 1 (1980); see also Lodge v. Arett Sales Corp., 246 Conn. 563, 587, 717 A.2d 215 (1998) (Berdon, J., dissenting) (focus of foreseeability inquiry should be "on the general nature of the harm and not the specific manner in which the injury occurred or the conduct of a third party"); Figlar v. Gordon, 133 Conn. 577, 581-82, 53 A.2d 645 (1947) (foreseeability "does not mean that one charged
Comment (i) to § 29 of the Restatement (Third) of Torts underscores this point: "Courts often respond to efforts by advocates to employ excessive detail in characterizing the type of harm in order to make it appear more unforeseeable with the dictum that the manner of harm is irrelevant. Factfinders, no doubt, respond to these efforts with their own judgment and common sense to decide the appropriate specificity with which to assess the scope of liability." 1 Restatement (Third), Torts, Liability for Physical and Emotional Harm § 29, comment (i), p. 504 (2010). Although, in some cases, the injury is so remotely or tenuously connected to the conduct of the defendant that it must be deemed unforeseeable as a matter of law, this is not such a case. Because reasonable people can disagree as to whether the defendant should have anticipated that a child playing in the common backyard reasonably might by injured by another child's mishandling of the broken concrete or other debris that had accumulated there, the plaintiff is entitled to have a jury decide that question.
In the present case, the defendant does not dispute that the risk of harm created by its failure to remove the buckets, trash, broken concrete pieces and other debris from the backyard was that children playing in the area might trip on them or throw them at other children. The types of injuries one would expect to result from this type of behavior run the gamut from cuts and bruises to broken bones, concussions and even fractured skulls. Adriana's injuries, although severe, fall squarely along this continuum of harm. That they occurred in an unusual manner, namely, by a child dropping a piece of concrete into the backyard playground from a third floor balcony instead of throwing it while in the backyard, does not alter this fundamental fact. We therefore agree with the Appellate Court that Adriana's injuries were sufficiently foreseeable that it was inappropriate for the trial court to foreclose the foreseeability question as a matter of law.
Of course, "[a] simple conclusion that the harm to the plaintiff was foreseeable... 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 [that] lead the law to say that the plaintiff is entitled to protection.... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 594, 945 A.2d 388 (2008). "[I]n considering
Relying primarily on the trial court's analysis of the policy issue, the defendant contends that, even if a jury reasonably could conclude that Adriana's injuries were foreseeable, public policy militates against imposing a duty under the circumstances of this case. We disagree with this assertion for several reasons. First, the defendant's analysis fails to give due consideration to the preexisting common-law and statutory duty requiring landlords in this state to maintain the common areas of leased premises in a reasonably safe condition. In light of that duty, the only real issue in this case is whether a compelling reason exists to conclude that this duty is not controlling of the policy question raised by the defendant. Clearly, the first two considerations that bear on that question — the expectations of the participants and the public policy of encouraging participation in the activity under review — do not support the defendant's position. The Appellate Court explained that the activity at issue is a tenant's use of the common area of an apartment building — in this case a backyard — as a place for children to play. See Ruiz v. Victory Properties, LLC, supra, 135 Conn.App. at 129, 43 A.3d 186. The law imposes a duty on landlords to maintain the common areas of rental property in a reasonably safe condition precisely because it is expected that tenants will use those areas for a variety of purposes, including as a place for their children to recreate. Cf., e.g., Indianapolis Housing Authority v. Pippin, 726 N.E.2d 341, 346 (Ind.App.2000) (public policy supports imposing duty on owner of multifamily housing complex to consider safety of common areas where children are known to play). With respect to the public policy of encouraging participation in the activity under review, we agree with the Appellate Court that it is hardly controversial that public policy supports "the maintenance of common areas in properties such as the apartment building in this case, so that children can socialize and play in safe environments. A finding against the imposition of a duty would discourage parents from allowing their children to play and utilize [these] areas.... It would also require tenants in such dwellings to exercise a much higher degree of vigilance in monitoring their children's activities in order to prevent exposure to potentially dangerous materials [in areas over which they have no control]. There is certainly a strong public policy in favor of facilitating and encouraging children to play and socialize without forcing an overly heightened degree of vigilance [on] parents."
With respect to the third policy consideration, avoidance of increased litigation, the defendant argues that, if this court permits a jury to decide whether the defendant breached a duty to the plaintiff by failing to remove the broken pieces of concrete from the backyard, then almost any item found in the common area of an apartment building could be deemed dangerous, including sticks and stones, flower pots, umbrellas or even lawn chairs. The defendant asserts that this will result in landlords being held strictly liable for injuries caused by a wide array of harmless objects, expose all property owners, not just landlords, to increased litigation and property costs, and "encourage an unhealthy `sanitizing' of areas where children play" in order to avoid such litigation and costs. First, we reject the defendant's contention that imposing a duty under the circumstances of this case is tantamount to imposing strict liability. To the contrary, concluding that a duty exists simply affords the plaintiffs in the present case the opportunity to prove to a jury that Adriana's injuries were foreseeable, that the defendant failed to take reasonable steps to avoid them, and that this failure was a substantial factor in bringing about those injuries. It is by no means clear, however, that the plaintiffs will prevail on any of these components of their claim. As in every negligence action, the jurors will be free to reject the claim if they find, in light of their common knowledge and experience, that Adriana's injuries were not reasonably foreseeable, or that the defendant exercised reasonable care under the circumstances, or that the defendant's conduct was not a substantial factor in causing Adriana's injuries.
Nor do we agree that our resolution of this appeal will lead to a significant increase in litigation or drive up the costs of property ownership, which might occur if we were recognizing a new cause of action or otherwise breaking new ground in the area of premises liability. In the present case, we merely conclude that there is a triable issue of fact as to whether the defendant breached its duty to maintain the common areas of the plaintiffs' apartment building in a reasonably safe condition, such that the question of liability should be decided by a jury and not by the court as a matter of law. Indeed, we agree with the Appellate Court that, rather than unnecessarily and unwisely increasing litigation, imposing a duty in this case will likely prompt landlords to act more responsibly toward their tenants in the interest of preventing foreseeable harm caused by unsafe conditions in areas where tenants are known to recreate or otherwise congregate. Moreover, the cost of maintaining the common areas of an apartment building in a reasonably safe condition is likely one of the least costly aspects of rental property ownership, and one that the defendant in the present case assumed by virtue of such ownership. We cannot imagine that picking up pieces of loose concrete and other debris that had accumulated in the common backyard, and periodically inspecting the yard for new hazards, would require more than a few
Finally, we are not persuaded that our conclusion is likely to cause landlords to "sanitize" the common areas where children play, thereby depriving those children of the opportunity to recreate in a fun and enjoyable environment. Our holding requires only that landlords take reasonable steps to protect against foreseeable injuries to children playing in those common areas, and when a landlord is sued for allegedly breaching that duty, summary judgment remains available unless a jury reasonably could determine that the landlord failed to act reasonably under the circumstances.
With respect to the fourth consideration, namely, the decisions of other jurisdictions, the defendant relies primarily on a line of Illinois cases,
Although we acknowledge that Luis' actions were a direct and substantial
The judgment of the Appellate court is affirmed.
In this opinion ROGERS, C.J., and ESPINOSA, J., concurred.
ZARELLA, J., with whom McDONALD, J., joins, dissenting.
I disagree with the majority's decision to affirm the judgment of the Appellate Court, which reversed the trial court's judgment in favor of the defendant, Victory Properties, LLC. In my view, the trial court correctly concluded that the defendant, the property owner in this case, did not have a legal duty to prevent ten year old Luis Cruz from taking an eighteen pound piece of cinder block (cinder block) from the backyard of his apartment building, carrying the cinder block up to the balcony of his third story unit, and dropping it on the named plaintiff, Adriana Ruiz,
I begin by setting forth the governing legal principles. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). At issue in the present case is the first element, duty. "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.... [T]he determination of whether a duty exists between individuals is a question of law.... Only if a duty is found to exist does the trier of fact go on to determine whether the defendant has violated that duty." (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 571, 717 A.2d 215 (1998).
There is no question that the defendant in the present case owed the plaintiff a duty of reasonable care. As the majority accurately notes, all landlords owe their tenants a duty to maintain the common areas of an apartment building in a reasonably safe condition; see, e.g., Giacalone v. Housing Authority, 306 Conn. 399, 407-408, 51 A.3d 352 (2012); and it is undisputed that Cruz took the cinder block that injured the plaintiff from a common area of the apartment building. The precise question before this court is whether the scope of the defendant's duty of care included preventing the plaintiff's injuries. To determine the scope of the defendant's duty, a two step analysis is required. This involves: "(1) a determination of whether an ordinary person in the defendant's position,
The first step of the duty analysis requires an examination of whether the harm of the general nature suffered by the plaintiff was a reasonably foreseeable consequence of the alleged negligence. "[T]he analysis of foreseeability logically cannot be extended so far that the term `general harm' incorporates any accident involving [the defendant's conduct] ... with no consideration given to the direct cause of the accident. It is impractical, if not impossible, to separate the question of duty from an analysis of the cause of the harm when [as in the present case] the duty is asserted against one who is not the direct cause of the harm.
If the harm the plaintiff suffered was reasonably foreseeable, then the second step of the duty analysis requires consideration of the following four public policy 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.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 118, 869 A.2d 179 (2005). When these policy considerations weigh in favor of finding a duty, liability may be imposed. This court has recognized "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." (Internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. at 386, 650 A.2d 153.
In applying the foregoing principles to the present case, I begin with the first step of the duty analysis, considering whether an ordinary person in the position of the defendant would anticipate that harm of the general nature suffered by the
The question of foreseeability in cases such as the present one, in which a third party, rather than the defendant, directly caused the plaintiff's injuries, turns largely on the foreseeability of the third party's conduct. In assessing the foreseeability of a third party's conduct, courts focus on whether the defendant had, or should have had, notice of the third party's propensity to engage in such conduct, or knowledge of past instances of the same type of conduct in the same location. See, e.g., Monk v. Temple George Associates, LLC, supra, 273 Conn. at 115-16, 869 A.2d 179 (physical attack on plaintiff in nightclub parking lot was foreseeable, in part, because serious crimes previously occurred in same vicinity); Indian Acres of Thornburg, Inc. v. Denion, 215 Va. 847, 851, 213 S.E.2d 797 (1975) (plaintiff's injuries were caused by child dropping piece of concrete from observation tower on camping ground was not reasonably foreseeable, in part, because property owner had no knowledge that children previously were dropping rocks or other objects from tower); cf. 1 Restatement (Third), Torts, Liability for Physical and Emotional Harm § 19, comment (d), p. 217 (2010) (identifying "likelihood of improper conduct on the part of the plaintiff or a third party" as one factor to be considered in determining liability); 2 Restatement (Second), Torts § 302 B, illustration (14), pp. 92-93 (1965) (defendant liable for damage caused by children's misuse of construction equipment on Halloween night when defendant left equipment unguarded in neighborhood in which children "habitually" engaged in mischief on Halloween night).
Another factor that courts consider in assessing foreseeability, specific to cases in which the defendant is alleged to have negligently allowed a third party access to an object that the third party uses and thereby injures the plaintiff with, is the physical proximity between the location where the defendant left the object and the location where the third party ultimately injured the plaintiff. As one court has stated, "[i]t is not the nature of the object in the abstract that matters, it is the nature of the object in the matrix of all the circumstances that surround the event [in question that matters]...." Beffa v. Terminal Railroad Assn., 208 Ill.App.3d 7, 14, 152 Ill.Dec. 969, 566 N.E.2d 846 (1991). In general, it is more foreseeable that a third party will misuse an object when a defendant has left the object in a location in which the third party is more likely to have access to it or be in a position to misuse it. See Feichtner v. Cleveland, 95 Ohio App.3d 388, 396, 642 N.E.2d 657 (third party's dropping of construction debris from overpass bridge onto vehicle below was not foreseeable, in part, because construction companies left debris "at least twenty-five to thirty yards away from the bridge"), appeal denied, 70 Ohio St.3d 1476, 640 N.E.2d 848 (1994); 1 Restatement (Third), supra, § 19, illustration (3), pp. 218-19 (father may be found liable for ten year old son's shooting of another child when father placed loaded gun on coffee table in family room); cf. Neal v. Shiels, Inc., 166 Conn. 3, 13, 347 A.2d 102 (1974) (child's injuries from being struck by car were foreseeable when defendant ice cream truck vendor deliberately attracted children to street by ringing bells).
In the present case, the defendant's alleged negligence and the direct cause of the plaintiff's injuries, namely, Cruz' dropping of the cinder block from a third story balcony, were simply too attenuated for
What further makes the plaintiff's injuries not reasonably foreseeable is the intentional nature of Cruz' conduct. While Cruz did not intend to injure the plaintiff, Cruz' conduct was intentional insofar as he intended to drop the cinder block from the third story balcony and was aware that he was dropping it in the general vicinity of the plaintiff. This type of intentional conduct is of the same nature as intentional, tortious acts and is unforeseeable for the same reason that an ordinary person would not anticipate that even a child would knowingly endanger another person in this manner. This is reflected in § 442 B of the Restatement (Second) of Torts, relating to intervening causes, in which one illustration makes clear that a property owner is not liable for a child's intentional conduct, such as Cruz' actions in the present case: "The employees of the A Theatre Company negligently leave a chair on the railing of the balcony, creating the risk that it may accidentally or negligently be knocked off the railing in the dark, and will injure some person below. Without any reason whatever on the part of the Theatre Company to anticipate such conduct, B, a boy attending the theatre, deliberately throws the chair off of the railing, and it falls upon C and injures him. A Theatre is not liable to C." 2 Restatement (Second), supra, § 442 B, illustration (9), pp. 471-72. This illustration does not provide that the "boy" intended to harm C, who was injured by the chair, and, yet, it notes that the defendant is not liable for the boy's conduct. Id. As this illustration demonstrates, the scope of a property owner's duty of reasonable care does not encompass preventing this type of intentional third-party conduct.
Finally, the harm that the plaintiff suffered was not reasonably foreseeable because there is no evidence in the record that the defendant knew or should have known that either Cruz or other tenants had a propensity for throwing objects from their balconies. According to the plaintiff's allegations, the defendant was aware that broken cinder blocks and other debris had accumulated in the backyard of the apartment building and that children regularly played in this area. Thus, as the trial
I turn next to the second step of the duty analysis, which requires consideration of four factors to determine whether public policy supports allowing an extension of the defendant's legal duty to prevent the plaintiff's injuries. I undertake the second step of the duty analysis despite concluding that the harm suffered by the plaintiff was not reasonably foreseeable because, even if the harm that the plaintiff suffered was reasonably foreseeable, I would decide on public policy grounds that the defendant should not be held responsible for injuries that Cruz caused the plaintiff to suffer when he dropped the cinder block on her.
As I previously noted, the four factors relevant to the public policy inquiry are: "(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.) Monk v. Temple George Associates, LLC, supra, 273 Conn. at 118, 869 A.2d 179. Assuming that the activity in question is children playing in the out-door common areas of apartment buildings, I firmly believe that none of the four public policy factors weighs in favor of imposing a duty on the defendant in these circumstances, and that the second, third, and fourth factors weigh against imposing such a duty.
The first factor, the normal expectations of children and their parents when children play in outdoor common areas, does not support imposing a duty on the defendant. The expectations of children and their parents regarding the outdoor common areas of apartment buildings are actually quite well defined, given the abundance of statutory and common law relating to premises liability and children. See, e.g., General Statutes § 47a-7 (a)(3) (requiring landlords to "keep all common areas of the premises in a clean and safe condition"); Noebel v. Housing Authority, 146 Conn. 197, 200, 148 A.2d 766 (1959) (noting that landlords have duty to exercise reasonable care in maintaining premises). Landlords undoubtedly owe their tenants a duty to maintain common areas in a reasonably safe condition, and that is what their tenants expect. See Giacalone v. Housing Authority, supra, 306 Conn. at 407-408, 51 A.3d 352. This duty, however, does not require landlords to secure or remove from an apartment building's out-door common areas all objects that potentially could be dangerous when brought inside the apartment and dropped from an upper story. Nor do tenants expect landlords to do so, as demonstrated by a photograph that was introduced into evidence in the present case and shows that
The second factor, the public policy of encouraging children to play safely in out-door common areas of apartment buildings, also weighs against imposing a duty on the defendant. We unquestionably want to encourage children to play with one another for a variety of reasons, including the physical benefit they receive from exercise as well as the social benefit gained from interacting with their peers. Imposing a duty on the defendant in the present case, however, will not increase participation in this obviously desirable activity. Rather, imposing a duty on the defendant to remove the cinder blocks and debris from the backyard to protect against the type of harm that the plaintiff suffered would create a concomitant duty to remove all comparable objects from the backyard, such as decorative rocks, bird baths, lawn ornaments, lawn furniture, sprinklers, garden tools, stones from a stone wall, and countless other items. As the trial court observed, "[i]f thrown off a balcony, practically anything can constitute a dangerous missile."
Requiring landlords to strip outdoor common areas bare would not encourage children to play outdoors because it would remove many objects that facilitate out-door play but that can be dangerous when misused. For instance, Cruz could just as easily have picked up the cinder block that was securing the basketball hoop and dropped it from the balcony of his apartment unit, instead of the cinder block that he did, and, according to the majority's theory, the defendant would have been equally liable. If the defendant had been required to remove the cinder block that was stabilizing the basketball hoop, the children in that apartment building would have had one less activity available to them, or at least had an activity that was less safe because the basketball hoop likely would have been unstable in the absence of that cinder block. Thus, imposing a duty on the defendant in this case ultimately could decrease children's participation in playing in the outdoor common areas of apartment buildings.
Moreover, requiring landlords to secure or remove from outdoor common areas every object that could be dangerous when thrown from the third story of a building also would carry significant economic costs, which landlords would almost surely pass on to their tenants in the form of increased rent. See, e.g., Saelzler v. Advanced Group 400, 25 Cal.4th 763, 777, 23 P.3d 1143, 107 Cal.Rptr.2d 617 (2001) (recognizing that costs of premises liability are eventually borne by renters); Miller v. Whitworth, 193 W.Va. 262, 268, 455 S.E.2d 821 (1995) (same); see also 1 Restatement (Third), supra, § 3, comment (e), p. 31 (noting that financial burden of risk prevention is generally passed on from actors to their customers). Ultimately, increased rental costs could price certain low income families out of the market, depriving them of housing that includes outdoor common areas in which children can play.
The third factor, the avoidance of increased litigation, is the factor that most heavily weighs against imposing a duty on the defendant. As the defendant claimed in the Appellate Court, imposing a duty on the defendant in these circumstances is tantamount to making landlords "strictly liable for the actions of the children of their tenants while they are playing in common areas of the property." Ruiz v. Victory Properties, LLC, supra, 135 Conn. App. at 127, 43 A.3d 186. The logical consequence of expanding premises liability as the court does today is an increase in litigation, as plaintiffs will seek redress for injuries caused by children misusing a potentially limitless number of objects from the common areas of apartment buildings. Not only would imposing a duty on the defendant make landlords strictly liable for injuries caused by children in common areas, but it would also make homeowners potentially liable for injuries that neighboring children cause by misusing otherwise harmless objects on their property. I believe that the majority overestimates property owners' ability to immediately conform to the duty that it imposes today, given the potentially unlimited number of objects that it requires them to ensure are beyond the reach of a curious child. Indeed, imposing a duty on the defendant in this case will significantly increase litigation between tenants, landlords, and homeowners in Connecticut.
Finally, the fourth factor, the decisions of other jurisdictions, also weighs heavily against imposing a duty on the defendant. The majority concludes that the decisions of other jurisdictions are split on this issue without citing a single factually similar case in which a court has decided that a landlord had a duty to protect a child from a third party such as Cruz. In the most factually similar case that I have discovered, the court decided that preventing such harm was not within the scope of the landlord's duty.
In Indian Acres of Thornburg, Inc. v. Denion, supra, 215 Va. at 847, 213 S.E.2d 797 (Indian Acres), the Supreme Court of Virginia concluded that an owner of a camping ground did not owe the plaintiff a duty to remove rocks and construction debris to protect her from injuries that she sustained when a twelve year old child dropped a piece of concrete on her from an observation tower on the camping ground. See id., at 847-48, 851, 213 S.E.2d 797. In Indian Acres, the plaintiff's family owned
Other cases have addressed a property owner's legal duty in situations in which children caused injuries by misusing an object in a dangerous manner in the common area itself. In those cases, the authority is split. For example, in Englund v. Vital, 838 N.W.2d 621 (S.D.2013), the South Dakota Supreme Court declined to impose liability on a landlord for injuries that a nine year old tenant (plaintiff) sustained when she was struck with a rock thrown by a twelve year old tenant (child) in the backyard. Id., at 630. The rock came from a pile of landscaping materials that the landlord had expressly agreed to remove before the plaintiff was injured. Id., at 625. Moreover, the court assumed, for purposes of its analysis, that the landlord knew that the child who threw the rock previously had thrown rocks in the backyard area. Id., at 630. Nevertheless, the court determined that the landlord did not owe the plaintiff a duty to protect her from the child who threw the rock because the child's conduct was not sufficiently foreseeable. Id. Although the court also decided that the landlord was not liable in part because he had ceded full control over the property on which the rock was thrown, and therefore owed no duty to maintain it as a common area; id.; Englund is analogous to our case insofar as Cruz threw the cinder block from his family's private residence, an area that the defendant was not responsible for maintaining. Englund is also instructive because the court separately decided that the landlord did not owe the plaintiff a duty to
In other jurisdictions, courts have found that the landlord had such a duty. See Qureshi v. Ahmed, 394 Ill.App.3d 883, 892-93, 916 N.E.2d 1153 (2009) (court could not conclude, as matter of law, that homeowners did not owe child duty to protect her from injuries caused by treadmill); Grant v. South Roxana Dad's Club, 381 Ill.App.3d 665, 673, 319 Ill.Dec. 780, 886 N.E.2d 543 (2008) (operator of playground owed child duty of care to remove pile of dirt on which child hurt himself); Mayer ex rel. Mayer v. Housing Authority, 84 N.J.Super. 411, 423-24, 202 A.2d 439 (App. Div.1964) (defendant owed duty of care to child who was injured by rock that was thrown by another child in recreational area in which children regularly threw rocks), aff'd, 44 N.J. 567, 210 A.2d 617 (1965).
The majority notes that this lack of uniformity is likely due to the fact that what constitutes a reasonably foreseeable injury under the circumstances is "a highly fact-sensitive issue," susceptible to the slightest factual variations. Footnote 10 of the majority opinion. But the foregoing cases, which involve children's misuse of objects within common areas, are not factually similar to the present case and, in any event, do not support the majority's decision to expand the defendant's scope of liability, because the cases are split. The case that is most analogous to the present case, however, Indian Acres, suggests that the question of the defendant's duty is not one for the jury and that the defendant should prevail as a matter of law. See Indian Acres of Thornburg, Inc. v. Denion, supra, 215 Va. at 851, 213 S.E.2d 797.
Collectively, the four policy factors militate against imposing a duty on the defendant in this case. Tort law is grounded in the fundamental principle that an actor should be required to take reasonable precautions against risks only when the
I now address the central flaws in the majority's reasoning. The majority contends that harm of the general nature that the plaintiff suffered was a reasonably foreseeable consequence of the defendant's alleged negligence in leaving the cinder block in the backyard. The crux of the majority's contention is that the foreseeability inquiry must be framed broadly and should not focus on the specific manner in which the plaintiff was injured. The majority relies on the principle that "[s]o long as harm of the general nature as that which occurred is foreseeable there is a basis for liability even though the manner in which the accident happens is unusual, bizarre or unforeseeable." Pisel v. Stamford Hospital, 180 Conn. 314, 333, 430 A.2d 1 (1980). Applying this principle, the majority focuses on the types of injuries that cinder blocks could cause, and concludes that, because the plaintiff's injuries fall along that "continuum of harm," the harm of the general nature that the plaintiff suffered was reasonably foreseeable. I do not believe this is the correct approach.
The majority unduly broadens the foreseeability inquiry to a level of generality at which every conceivable accident involving the cinder block that Cruz used to injure the plaintiff would be deemed foreseeable. While it is true that the foreseeability inquiry should not narrowly focus on the manner in which the plaintiff was injured, it is incorrect to suggest that the circumstances giving rise to the plaintiff's injuries are never relevant. To the contrary, the majority concedes that determining the foreseeability of a plaintiff's injuries involves a fact-sensitive inquiry; see footnote 10 of the majority opinion; and a survey of our case law reveals that we often have considered the manner in which a plaintiff's injuries occurred to be highly relevant to the foreseeability inquiry.
Indeed, we recognized in Lodge that, in cases in which a third party, rather than the defendant, is the direct cause of the harm to the plaintiff, one cannot consider the scope of the defendant's duty without also considering the direct cause of the harm. As the court in Lodge stated, "[i]t is impractical, if not impossible, to separate the question of duty from an analysis of the cause of the harm when the duty is asserted against one who is not the direct cause of the harm." Lodge v. Arett Sales Corp., supra, 246 Conn. at 574, 717 A.2d 215. Our analysis and holding in Lodge demonstrate that, in cases such as the present one, we cannot properly determine the scope of the defendant's duty without considering all of the circumstances in which the plaintiff was injured, and specifically the defendant's relation to the third party tort-feasor. The majority's refusal to consider the circumstances that precipitated the plaintiff's injuries in the present case is therefore misguided.
In concluding that the harm of the general nature that the plaintiff suffered should be defined without considering the manner in which it occurred, the majority also relies on § 29 of the Restatement (Third) of Torts. Section 29, however, supports the view that the manner in which a plaintiff is injured is relevant to the foreseeability analysis, as comment (o) to that section provides: "Some aspects of the manner in which the harm occurs are relevant to a determination of the scope of an actor's liability.... [T]he manner of harm can be of critical importance in determining whether the harm is within the scope of liability...." (Emphasis in original.) 1 Restatement (Third), supra, § 29, comment (o), pp. 509-10. Thus, the Restatement (Third) of Torts instructs that, in determining the foreseeability of the harm of the general nature that the plaintiff suffered, it is not only appropriate but necessary to consider all of the circumstances giving rise to the plaintiff's injuries,
Another misstep in the majority's analysis is its mistaken conclusion that the cinder block that Cruz used to injure the plaintiff was an inherently dangerous object. The majority asserts that the cinder blocks and debris were dangerous objects because children could have tripped over them or even thrown pieces of them at one another, and that, even if they were inherently harmless, one can nevertheless be held liable for injuries resulting therefrom.
The majority mischaracterizes the true nature of the cinder block in question and fails to grasp its significance. The Restatement (Third) of Torts explains that the nature of an object is relevant insofar as the greater the danger an object presents, the greater precautions an ordinarily prudent person would take to minimize the risk of harm the object poses. See id., § 3, comment (e), p. 31. For example, a parent who leaves a loaded gun on a coffee table in his family room can be held liable if his child were to use the gun to shoot another child because it would be obvious to a prudent person that the lethal nature of the object in question, the gun, demands greater precautions when it is left unguarded in an area to which children have access. See id., § 19, illustration (3), pp. 218-19. There is no doubt that a broken cinder block is not as inherently dangerous as a loaded gun, explosives, broken glass, poisonous substances, toxic waste, or exposed electrical wires. See id., § 3, comment (e), p. 31 (listing dangerous objects or activities). The majority mistakenly equates an object that can be dangerous when misused with one that is inherently dangerous, such as the foregoing items. But for Cruz' decision to transport the cinder block from the backyard and to drop it off a third floor balcony, the cinder block in question would have been no more harmful than a decorative lawn ornament or chair in the common area. The fact that the cinder block was an inherently harmless object made it less foreseeable that the plaintiff would suffer the harm that she did.
Finally, the majority contends that a jury reasonably could find that the defendant owed the plaintiff a duty to protect her from Cruz because this case involved children, and the presence of children sometimes requires actors to take additional precautions. See footnote 6 and accompanying text of the majority opinion. The majority expressly relies on § 339 of the Restatement (Second) of Torts, which pertains to a landowner's liability for artificial conditions that are highly dangerous to trespassing children. 2 Restatement (Second), supra, § 339, p. 197; see footnote 6 of the majority opinion. That principle, however, on its face, does not apply to the present case. First, the doctrine does not apply because neither the plaintiff nor Cruz was trespassing. Rather, they were both tenants properly using the backyard of their apartment building and, in Cruz' case, the balcony of his third story unit. Second, the cinder block lying on the ground in the backyard was not a condition that the defendant should have realized
For all of the foregoing reasons, I would conclude, as a matter of law, that protecting the plaintiff from Cruz was outside the scope of the defendant's legal duty. The defendant should not be exposed to liability for Cruz' conduct because the harm that the plaintiff suffered was not reasonably foreseeable, and, furthermore, public policy dictates that it would be unwise to expand a landlord's duty of reasonable care under the facts of this case. I therefore would reverse the judgment of the Appellate Court and reinstate the judgment of the trial court in favor of the defendant. Accordingly, I respectfully dissent.
The other case on which the dissent primarily relies, namely, Englund v. Vital, 838 N.W.2d 621 (S.D.2013), is similarly inapposite. In Englund, the injured victim, a young girl, was struck by a rock thrown by her neighbor, a young boy, who resided with his parents in a rental property owned by the defendant Robert Smith. Id., at 624-26. The victim's parents filed an action against Smith, among others, on the victim's behalf, alleging that the rock that the neighbor threw at the victim constituted debris from landscaping work that Smith was performing on the rental property, that Smith knew that the neighbor had a propensity to throw rocks, and that Smith had indicated that he would remove the rocks from the rental property but did not do so. Id., at 625-26. The victim's parents alleged that Smith's failure to remove the rocks was a breach of the duty he owed the victim to protect her from the neighbor's propensity to throw rocks. Id., at 628-29. The South Dakota Supreme Court affirmed the trial court's judgment rendered in favor of Smith, concluding that Smith could not be held liable for the victim's injuries, first, because he had ceded control of the rental property to the neighbor's parents; id.; and, second, because, even though he knew that the neighbor sometimes threw rocks, he could not have foreseen the neighbor's intentional or criminal misconduct in throwing a rock at a person. Id., at 629-30. It is clear that there is nothing in the court's decision in Englund that bears even remotely on the proper resolution of the present case.
More telling, the majority does not offer a case from another jurisdiction as factually similar as Indian Acres is to the present case, and, yet, it concludes that the decisions of other jurisdictions support expanding the scope of the defendant's duty.
