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*********************************************** 
GREGORY DEMOND, COADMINISTRATOR

(ESTATE OF BENJAMIN DEMOND),

ET AL. v. PROJECT

SERVICE, LLC,

ET AL.

(SC 20025)

(SC 20026)

(SC 20027)

(SC 20028)

Palmer, McDonald, Robinson, D’Auria,

Mullins, Kahn and Ecker, Js.*

Syllabus

Pursuant to the Restatement (Second) of Torts (§ 324A), ‘‘[o]ne who undertakes, gratuitously or for consideration, to render services to another

which he should recognize as necessary for the protection of a third

person . . . is subject to liability to the third person for physical harm

resulting from his failure to exercise reasonable care to [perform] his

undertaking . . . .’’

The plaintiffs sought to recover damages from the defendants, the operators

of an interstate highway service plaza owned by the state, for, inter alia,

the wrongful death of the named plaintiff’s decedent, D, in an automobile

accident caused by a drunken driver, G, a temporarily homeless man

who for the week preceding the accident had been living out of his

vehicle at the service plaza. On the date of the accident, G consumed

a large amount of alcohol while parked at the plaza and then proceeded

to depart the plaza and drive on the adjacent highway where he caused

a multivehicle accident, killing D and injuring D’s two children and

another motorist who was driving on the highway at the time. The

defendant P Co. previously had entered into a concession agreement

with the state to operate and maintain the service plaza. P Co. subcontracted the day-to-day operation of the service plaza to the defendant

A Co., and A Co. in turn subcontracted the operation of certain portions

of the service plaza to the defendant F Co. Pursuant to the agreement,

the defendants agreed not to permit the consumption of alcohol or

loitering on the premises of the service plaza, to notify the police of

any consumption of alcohol or loitering, and to train all subcontractors

and their employees to comply with those contractual obligations. The

plaintiffs alleged, inter alia, that the defendants breached a duty, arising

under § 324A of the Restatement (Second) of Torts, to protect the plaintiffs from the increased risk of harm created by the defendants’ failure

to perform their contractual obligations and that the accident was caused

by the defendants’ negligence. The plaintiffs also alleged that the defendants created a public nuisance by permitting G to loiter and consume

alcohol at the plaza. The defendants filed motions for summary judgment, contending, inter alia, that, under the circumstances, they did not

owe a duty of care to the plaintiffs. The trial court granted the defendants’

motions for summary judgment as to the public nuisance claims but

denied them as to the negligence claims. Thereafter, a jury trial was

held on the negligence claims. The trial court instructed the jury that

the defendants owed a duty of care to the plaintiffs as a matter of

law for the purpose of determining liability under § 324A, and the jury

returned a verdict in favor of the plaintiffs, finding that the defendants

were negligent, that their negligence increased the risk of harm to the

plaintiffs beyond that which existed without the defendants’ contractual

undertaking, and that the plaintiffs or others had relied on the defendants

to exercise reasonable care. Subsequently, the court denied the defendants’ motions to set aside the verdict and to direct judgment in their

favor as a matter of law, concluding that the defendants owed a duty

to the plaintiffs, which was created by the concession agreement and

willingly assumed by the defendants. The court further concluded that

the jury reasonably could have found that the defendants had agreed

that the provisions in the agreement prohibiting the consumption of
alcohol and loitering at the service plaza were intended to protect motorists on the adjacent highway. The trial court rendered judgment for the

plaintiffs on their negligence claims and for the defendants on the public

nuisance claims, and the plaintiffs and the defendants filed separate

appeals. Held:

1. The trial court incorrectly determined that the defendants, by undertaking

a contractual obligation to prevent the consumption of alcohol and

loitering at the service plaza, owed a duty of care to the plaintiffs under

§ 324A and, therefore, improperly denied the defendants’ motions to set

aside the verdict and to direct judgment in their favor on the negligence

claims: a landowner or possessor of property has no common-law duty

to prevent the risk of harm to third persons off the property that is

caused by a person’s consumption of alcohol on the property, and, to

impose such a duty under § 324A of the Restatement (Second) of Torts,

there must be an express contractual undertaking or evidence of an

unambiguous intention on the part of the contracting parties to protect

third persons from foreseeable, physical harm within the scope of the

services to be performed under the contract; in the present case, the

evidence was insufficient as a matter of law to support a finding that

the parties to the concession agreement, the state and P Co., had a

specific intent to protect motorists on the highway adjacent to the

service plaza from the risk of harm created by the consumption of

alcohol at the service plaza, as the agreement itself did not mention an

actual intention to provide such protection and there was no extrinsic

evidence that demonstrated any such contractual intent; moreover, evidence that harm to passing motorists is a foreseeable result of the

negligent failure to prevent alcohol consumption at the service plaza

was not sufficient to establish that the no alcohol and no loitering

provisions in the concession agreement were included with the intention

of protecting highway travelers.

2. This court concluded that it was unnecessary, in light of its determination

that the defendants owed no duty of care to the plaintiffs, to address

the defendants’ claims, raised as alternative grounds for reversing the

judgment of the trial court, that, even if they owed a duty of care to

the plaintiffs, they were not liable for negligence under either § 324A

(a), because they did not increase the risk of harm to the plaintiffs by

negligently performing their contractual undertaking, or under § 324A

(c), because neither the state nor a third person relied on the defendants

to protect highway motorists; nonetheless, this court observed that there

was no evidence that the defendants’ acts or omissions served to increase

the risk of harm to the plaintiffs, and the evidence was insufficient to

establish that either highway motorists or the state had relied on the

defendants to protect motorists on the highway adjacent to the service plaza.

3. The plaintiffs could not prevail on their claim that the trial court improperly

granted the defendants’ motions for summary judgment with respect to

their claim that the defendants created a public nuisance by allowing

G to loiter and consume alcohol at the service plaza for one week; even

if the defendants’ conduct in allowing G to loiter and consume alcohol at

the plaza contributed to such a dangerous condition, the sole proximate

cause of the automobile accident was G’s immoderate consumption of

alcohol and G’s act of driving his vehicle while intoxicated rather than

the defendants’ conduct in allowing G to loiter and consume alcohol at

the plaza.

Argued April 30 and May 1, 2018—officially released June 11, 2019

Procedural History

Action to recover damages for, inter alia, the wrongful

death of the named plaintiff’s decedent, and for other

relief, brought to the Superior Court in the judicial district of Waterbury, where the case was transferred to

the Complex Litigation Docket; thereafter, the trial

court, Zemetis, J., granted in part the motions for summary judgment filed by the named defendant et al.;

subsequently, the action was withdrawn as to O, R &

L Facility Services, LLC; thereafter, the case was tried

to the jury before Zemetis, J.; verdict for the plaintiffs;
subsequently, the trial court, Zemetis, J., granted the

plaintiffs’ motion for additur and rendered judgment for

the plaintiffs, from which the plaintiffs and the named

defendant et al. filed separate appeals. Reversed in part;

judgment directed.

Daniel J. Krisch, with whom were Rachel J. Fain

and, on the brief, 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,

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, for the

appellants in Docket No. SC 20028 and the appellees

in Docket Nos. SC 20025, SC 20026 and SC 20027

(plaintiffs).
Opinion

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,3the defendants contend that their con-
tractual 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 I395. 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 highway in proximity to the plaza.’’

Their central argument was that the defendants were

liable under § 324A of the Restatement (Second),

because, among other reasons, the no alcohol/no loitering provisions gave rise to an ‘‘undertaking’’ by the

defendants to use due care to prevent harm of this

nature from befalling the plaintiffs and other travelers.

With respect to the public nuisance claims, the plaintiffs

contended that the defendants had interfered with the

right of the public to travel on the highway by permitting

Goodale to live and to consume alcohol at the service plaza.

At oral argument on the motions for summary judgment, the trial court expressed its views that the issues

arising from the negligence claims were ‘‘novel,’’ that

none of the cases cited by the parties was directly on

point, and that ‘‘we’re stretching every aspect of tort

liability to see whether there is responsibility here.’’

The trial court’s written memorandum of decision

reflects the court’s serious engagement with the legal

issues presented, as well as the difficulty posed by some

of those issues. The trial court initially set forth the

general rule that ‘‘[w]hether a duty exists is a question

of law for the court . . . .’’ (Internal quotation marks

omitted.) To answer that question, the court discussed

this court’s only decision addressing the applicability of

§ 324A of the Restatement (Second) under Connecticut

law, Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505

(2001), which held that a contractor who undertakes

the snow removal duties of a landowner is liable to a

plaintiff who slips as a result of the contractor’s negligent performance. Id., 253; see id. (‘‘[u]nder § 324A [b]

of the Restatement [Second] [the defendant contractor]

is subject to liability to the plaintiff for his physical

injuries if the plaintiff can show that [the contractor]

failed to exercise reasonable care when performing the

duty owed by [the landowner who hired the contractor]

to the plaintiff’’); see also id., 250 n.4 (‘‘[i]t should be

emphasized that [the contractor] may be held liable to

the plaintiff [under § 324A (b)] only to the extent that

[1] his contractual undertaking permits, and [2] his

breach of duty to the plaintiff is part and parcel of [the

landowner’s] duty to the plaintiff’’).

Contrary to its initial inclination to decide the question of duty as a matter of law, the trial court ultimately

concluded that ‘‘[t]he question of whether any or all of

the defendants owe a legal duty of care to the plaintiffs

is a question of fact for the trier of fact.’’ The court did

not directly address whether (or why) the no alcohol/
no loitering provisions created a duty to motorists on

I-395, but it appears to have assumed that the duty

would apply to passing motorists under § 324A of the

Restatement (Second) if harm to those motorists was

a foreseeable result of the defendants’ alleged failure

to exercise reasonable care in enforcing the no alcohol/

no loitering provisions. The court denied the defendants’ motions for summary judgment as to the negligence claims on the ground that ‘‘[t]he finder of fact

may conclude that [§ 324A] (a) and/or (b) [of the

Restatement (Second)]6

impose a legal duty on any or

all of the defendants for failure to adequately train,

supervise, [and/or] implement the [relevant portions of

the concession agreement] or otherwise comply with

contractual obligations with respect to . . . Goodale’s

loitering and intoxication at the [s]ervice [p]laza.’’

(Footnote added.) The trial court granted, however,

the defendants’ motions for summary judgment with

respect to the public nuisance claims, on the ground

that ‘‘there is no claim that unreasonable or unlawful

use of the defendant(s)’ land interfered with public

rights.’’ (Emphasis in original.)

The plaintiffs thereafter filed a third amended complaint, which is the operative pleading for purposes of

these appeals, in which they reasserted the negligence

claims against the defendants. At the conclusion of the

plaintiffs’ case-in-chief at trial, Alliance filed a motion

for a directed verdict in which it renewed its claim that

it had no duty to protect the plaintiffs from Goodale’s

tortious conduct because a person in control of premises has no duty to protect motorists from persons who

consume alcohol on the premises and then drive off

the premises. The trial court denied the motion.

Two particular circumstances regarding the submission of the case to the jury are relevant on appeal. First,

although the trial court previously had determined, in

its summary judgment ruling, that the existence of a

duty owed by the defendants to the plaintiffs presented

a factual issue for the jury, the court instructed the jury

at trial that the defendants owed a duty of care to the

plaintiffs for purposes of determining liability under

§ 324A of the Restatement (Second) as a matter of law.

7

Second, the core jury findings with respect to liability

under § 324A were made in response to written interrogatories. These interrogatories required the jury to determine whether each of the defendants had negligently

performed their contractual undertaking pursuant to

the concession agreement and safety plan and the various subcontracts, and, if so, whether that defendant’s

negligence had increased the risk of harm to the plaintiffs beyond that which existed without the contractual

undertaking (the determinative consideration under

§324A [a]), or induced reliance by the DOT or the plaintiffs (the determinative consideration under § 324A

[c]).8
The jury found that the defendants each were negligent, that their negligence increased the risk of harm

to the plaintiffs, and that the plaintiffs or another had

relied on each defendant to exercise reasonable care.

Accordingly, the jury rendered a verdict in favor of the

plaintiffs. The defendants filed timely motions to set

aside the verdict and to direct judgment in their favor

as a matter of law. In a supporting memorandum,

adopted in full by Project Service, Alliance argued that

it had no duty to the plaintiffs as a matter of law under

§ 324A (a) of the Restatement (Second) because the

contractual undertaking to prevent the consumption of

alcohol and loitering at the service area did not increase

the risk of harm to motorists on I-395 beyond what

the risk would have been if there had been no such

contractual undertaking. Alliance further contended

that it had no duty to the plaintiffs under § 324A (c)

because ‘‘they were not within the scope of persons for

whom Alliance had a contractual responsibility, i.e.,

‘patrons and [e]mployees of the [p]remises,’ ’’ and,

therefore, the plaintiffs could not have relied on Alliance to protect them from harm. Finally, Alliance contended that no reasonable juror could have concluded

that its negligence was a proximate cause of the plaintiffs’ injuries.

The trial court denied the defendants’ postverdict

motions. With respect to the duty issue, the trial court

stated that it had already found, in its ruling on the

defendants’ motions for summary judgment, that ‘‘a

legal duty of care existed between the defendants and

the plaintiffs as the context of their relationship created

the duty. . . . The contracts created, and the defendants willingly assumed, the duty owed to [the] plaintiffs.’’ The court also determined that the jury

reasonably could have found that the defendants’ representatives had agreed that the no alcohol/no loitering

provisions were intended to protect motorists on the

adjacent highway because ‘‘[e]ach [of the relevant witnesses] acknowledged that if people consumed alcohol

while [at] highway service plazas, they would increase

the risk of harm to passing motorists. Each acknowledged that motorists leaving the highway service plaza

must travel on or along an interstate highway. Allowing

intoxicated motorists to live [i]n highway service plazas,

and operate motor vehicles from service plazas onto

adjacent interstate highways, intensifies and concentrates the risk of collisions caused by drunk drivers in

the area of service plazas.’’9

These appeals followed. The defendants contend in

their appeals that the trial court improperly denied their

motions to set aside the verdict and to direct judgment

in their favor on the negligence claims because they

owed no duty to the plaintiffs and have no liability

to them under § 324A (a) or (c) of the Restatement

(Second). The plaintiffs contend in their cross appeal
that the trial court improperly granted summary judgment in the defendants’ favor on the public nuisance

claims.10 We agree with the defendants and disagree

with the plaintiffs.

II

We first address whether the defendants owed the

plaintiffs a duty of care. The defendants argue that the

trial court improperly denied their motions to set aside

the verdict and to direct judgment in their favor on the

negligence claims as a result of the court’s improper

determination that the defendants owed a duty of care

to the plaintiffs under § 324A of the Restatement (Second). Their argument can be summarized succinctly:

‘‘Project Service [and the other defendants] did not

contractually undertake a duty to prevent drunk driving

on public highways.’’11 In response, the plaintiffs renew

their argument, which succeeded in the trial court, that

Project Service ‘‘undert[ook] . . . for consideration, to

render services to another which [it] should recognize

as necessary for the protection of a third person or

his things, when [it] contractually obligated [itself] to

operate the . . . service plaza in a safe and secure manner for the benefit of its patrons and the traveling public.’’ (Internal quotation marks omitted.) The plaintiffs

further contend that the jury reasonably could have

found that (1) liability attaches under § 324A (a)

because Project Service’s failure to exercise due care

in the performance of its contractual duties increased

the risk of harm to passing motorists, and/or (2) liability

attaches under § 324A (c), because (i) the plaintiffs

relied on Project Service to prevent people from drinking at the service plaza and then using I-395 and would

have avoided the highway if they had known that Project Service was not exercising due care, and/or (ii) the

DOT relied on Project Service to prevent people from

drinking at the service plaza and then using I-395, and

would have taken precautions itself if not for Project

Service’s promise.

Our standard of review is well settled. ‘‘Directed verdicts are not favored. . . . A trial court should direct

a verdict only when a jury could not reasonably and

legally have reached any other conclusion. . . . In

reviewing the trial court’s decision [to deny the defendant’s motion for a directed verdict] we must consider

the evidence in the light most favorable to the plaintiff.

. . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts

proven . . . it may not resort to mere conjecture and

speculation. . . . A directed verdict is justified if . . .

the evidence is so weak that it would be proper for the

court to set aside a verdict rendered for the other party.

. . . The foregoing standard of review also governs the

trial court’s denial of the defendant’s motion for judgment notwithstanding the verdict because that motion

is not a new motion, but [is] the renewal of [the previ-
ous] motion for a directed verdict.’’ (Citation omitted;

internal quotation marks omitted.) Bagley v. Adel Wiggins Group, 327 Conn. 89, 102, 171 A.3d 432 (2017).

Under Connecticut law, ‘‘[t]he existence of a duty is

a question of law and only if such a duty is found to

exist does the trier of fact then determine whether the

defendant [breached] that duty in the particular situation at hand. . . . If a court determines, as a matter of

law, that a defendant owes no duty to a plaintiff, the

plaintiff cannot recover in negligence from the defendant.’’ (Internal quotation marks omitted.) Grenier v.

Commissioner of Transportation, 306 Conn. 523, 538–

39, 51 A.3d 367 (2012). ‘‘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.’’ (Internal quotation marks omitted.) Munn v. Hotchkiss School, 326

Conn. 540, 548, 165 A.3d 1167 (2017). Foreseeability is

a critical factor in the analysis, because no duty exists

unless ‘‘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 . . . .’’ (Internal

quotation marks omitted.) Id.; see also Ruiz v. Victory

Properties, LLC, 315 Conn. 320, 328, 107 A.3d 381

(2015). Our law makes clear that foreseeability alone,

however, does not automatically give rise to a duty of

care: ‘‘[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.)

Munn v. Hotchkiss School, supra, 549–50; see also Lawrence v. O & G Industries, Inc., 319 Conn. 641, 650,

126 A.3d 569 (2015).

The duty analysis in the present case is complicated

by the particular context in which the allegations of

negligence arose against these defendants. The parties

have framed the ultimate question as whether, under

§ 324A of the Restatement (Second), Project Service’s

contractual undertaking to operate the service plaza

triggered a duty on its part to protect motorists on the

highway from the risk of harm created by persons who

consume alcohol on the premises of the service plaza.12

In answering this question, we must keep in mind two

established principles of Connecticut negligence law.
First, a person typically has no duty of care to protect

third persons from harm caused by a primary tortfeasor,

or to control the conduct of that tortfeasor, unless there

is a special relationship between the defendant and

either the third person or the tortfeasor, or other exceptional circumstances exist. See Cannizzaro v. Marinyak, 312 Conn. 361, 366–67, 93 A.3d 584 (2014)

(‘‘[T]here generally is no duty that obligates one party

to aid or to protect another party. . . . 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.’’ [Citation omitted; internal quotation

marks omitted.]); see also Doe v. Boy Scouts of America

Corp., 323 Conn. 303, 323–25, 147 A.3d 104 (2016) (discussing affirmative duty of care to protect minor participants from sexual abuse by patrol leader); Murdock v.

Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004)

(special relationship of custody or control may give

rise to duty to protect third person from conduct of

another); Fraser v. United States, 236 Conn. 625, 632,

674 A.2d 811 (1996) (same). Section 314 of the

Restatement (Second) expresses the general rule in

these terms: ‘‘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.’’ 2 Restatement (Second),

Torts § 314, p. 116 (1965); see also 2 Restatement

(Third), Torts, Liability for Physical and Emotional

Harm § 37, p. 2 (2012) (updated version of § 314 of

Restatement [Second]). Due to the increasingly interdependent nature of our social lives today, in which many

institutional and other caretaking or custodial roles

exist as a matter of course, relationships giving rise to

such a duty of care are not uncommon, but it still is

important to keep in mind that a duty of care does not

exist in the air, and caution must be exercised to ensure

that a special relationship or other factors give rise to

such a duty before negligence liability can be imposed

for harm caused to a third person.13

Second, it is significant to our analysis that an owner

or possessor of property in this state generally cannot

be held liable in negligence for harms caused by adults

who consume alcohol on that property but cause injury

only after leaving to drive on the public roads.14 This

limitation holds true even when the owner or possessor

plays an active role in creating the risk by actually

serving the defendant the alcohol.15 See Bohan v. Last,

236 Conn. 670, 676, 674 A.2d 839 (1996) (‘‘[a]lthough

we have never held that purveyors of alcohol have no

[common-law] duty to exercise due care to protect the

foreseeable victims of those who drink and drive, we

have, nonetheless, declined to recognize a claim in negligence’’); Quinnett v. Newman, 213 Conn. 343, 345,

568 A.2d 786 (1990) (‘‘[a]t common law there is no cause

of action based upon negligence in selling alcohol to
adults who are known to be intoxicated’’), overruled

on other grounds by Craig v. Driscoll, 262 Conn. 312,

813 A.2d 1003 (2003); Nolan v. Morelli, 154 Conn. 432,

443, 226 A.2d 383 (1967) (‘‘the plaintiff has pointed to

no common-law duty resting on these defendants, as

sellers, proprietors or otherwise, to [prevent the tortfeasor, who had purchased and consumed alcohol on their

property, from driving] or otherwise to guard against

injuries sustained at unknown distances from the defendants’ premises and at places and under circumstances

wholly outside the defendants’ knowledge or control’’).16

With these background principles in mind, it becomes

apparent that Project Service had no common-law duty,

arising from its status as possessor of the premises, to

prevent the risk of harm to the plaintiffs; the alleged

duty derives, if at all, from Project Service’s contractual

undertaking to prevent alcohol consumption and loitering at the service plaza. In other words, the question

in this case is whether Project Service, by undertaking a

contractual obligation to prevent alcohol consumption

and loitering on the premises, assumed a duty of care

to off premises highway travelers that the DOT did not

have in the first instance. The plaintiffs contend that

Project Service’s contractual undertaking gave rise to

a duty to protect passing motorists from the risk of

harm caused by persons who consume alcohol at the

service plaza because the no alcohol/no loitering provisions were ‘‘necessary for the protection of’’ passing

motorists. 2 Restatement (Second), supra, § 324A, p.

142 (‘‘[o]ne who undertakes . . . to render services to

another which he should recognize as necessary for the

protection of a third person . . . is subject to liability

to the third person for physical harm resulting from his

failure to exercise reasonable care’’). They argue that

regardless of any limitation on the usual common-law

duties of a property owner, Project Service assumed a

duty to protect passing motorists because it knew or

should have known that its contractual undertaking to

prevent alcohol consumption at the service plaza would

function to protect such motorists from the foreseeable

risk of harm created by persons who consumed alcohol

at the plaza and then drove onto the highway.17

In support of this claim, the plaintiffs cite numerous

cases involving a party’s contractual undertaking to

keep premises safe in which the courts held that the

undertaking party had a duty to a third person injured

as the result of the negligent performance of the undertaking. See, e.g., Gazo v. Stamford, supra, 255 Conn.

252 (when owner of property abutting public sidewalk

had duty to clear sidewalk of ice and snow, and owner

contracted with defendant to perform that duty, defendant had duty to plaintiff who slipped on icy sidewalk

and was injured under § 324A of Restatement [Second]);

Clay Electric Cooperative, Inc. v. Johnson, 873 So. 2d

1182, 1187 (Fla. 2003) (electric company that contracted

to maintain street lights on public street had duty to
pedestrian who was killed as result of company’s failure

to maintain lights under § 324A);18 Ironwood Springs

Christian Ranch, Inc. v. Walk to Emmaus, 801 N.W.2d

193, 200 (Minn. App. 2011) (concluding that there was

genuine issue of material fact as to whether entity that

rented premises from owner had assumed duty to keep

premises safe for benefit of invitee for purposes of

§ 324A); Palka v. Servicemaster Management Services

Corp., 83 N.Y.2d 579, 585–86, 634 N.E.2d 189, 611

N.Y.S.2d 817 (1994) (company that contracted with hospital to supervise preventative maintenance program

was liable for injuries sustained by nurse when wallmounted fan fell on her); Tushaj v. Elm Management

Associates, Inc., 293 App. Div. 2d 44, 48, 740 N.Y.S.2d

40 (2002) (managing agent of apartment building was

liable to superintendent employed by building owner

for injuries sustained as result of agent’s failure to

undertake repairs within its contractual obligation); see

also Marland v. Asplundh Tree Expert Co., Docket No.

1:14-CV-40 (TS), 2017 WL 639241, *1–2 (D. Utah February 16, 2017) (under Utah law, when power company

had duty to prevent people from coming in contact with

power line, and defendant contracted to undertake that

duty on behalf of power company, defendant had duty

to plaintiff who was injured as result of defendant’s

negligent performance of contractual undertaking

under § 324A).

We consider these cases inapposite in the present

circumstances, however, because each involves an

undertaking party who takes on a preexisting duty

already owed by the contracting party (the party hiring

the undertaking party) to the plaintiff. In cases involving

a preexisting (sometimes called a ‘‘pass-through’’) duty,

the undertaking party is found to have the same duty

to the injured person as the duty already owed by the

contracting party itself. If Goodale had injured a patron

or employee on the service plaza premises, for example,

cases like Gazo would strongly support the conclusion

that the defendants could be held liable for their negligent performance of the no alcohol/no loitering provisions because they undertook the DOT’s preexisting

duty ‘‘to keep its premises in a reasonably safe condition’’ for the benefit of invitees; (internal quotation

marks omitted) DiPietro v. Farmington Sports Arena,

LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012); which

includes the duty to protect invitees from the dangers

created by allowing alcohol consumption on the premises. See Merhi v. Becker, 164 Conn. 516, 518–23, 325

A.2d 270 (1973) (when defendant union rented premises

where it held picnic for union members and their guests,

who were required to pay admission fee, and defendant

failed to provide adequate security, defendant was liable when picnic attendee who had been consuming his

own alcohol intentionally drove car toward third person

and struck plaintiff, who was on premises); see also

footnote 13 of this opinion. But this pass-through liabil-
ity, which is imposed by § 324A (b) of the Restatement

(Second), is the one theory of liability under §324A that

was unavailable to the plaintiffs in the present case,

because the DOT itself had no preexisting duty to protect highway travelers from the risk of harm posed by

intoxicated drivers off the premises of the service plaza.

See, e.g., Nolan v. Morelli, supra, 154 Conn. 443 (when

tortfeasor consumed alcohol on landowner’s property,

landowner had no duty to guard against injuries caused

by tortfeasor at off premises location wholly outside

of landowner’s control).

With the pass-through cases distinguished, we have

arrived at the true center of the parties’ dispute regarding the existence of a duty owed by the defendants to

the plaintiffs. The plaintiffs argue that a duty of care

arose under the facts of this case because the defendants’ contractual undertaking to prevent consumption

of alcohol and loitering at the service plaza constituted

‘‘services to another which he should recognize as necessary for protection of a third person’’ under § 324A

of the Restatement (Second) and, therefore, created

a duty of reasonable care owed to the plaintiffs. The

plaintiffs contend that foreseeability is the touchstone

of duty under § 324A—once the defendants agreed to

the undertaking, they assumed a duty of care to all

persons who sustained physical harm as a foreseeable

result of the defendants’ negligent performance of

that undertaking.

The defendants propose a very different duty analysis

under § 324A of the Restatement (Second). They argue

that their contractual obligation was limited to safeguarding patrons and employees of the service plaza

at the service plaza, period. The defendants contend

that, even if harm to passing motorists on the highway

was foreseeable, nothing in the concession agreement

reflects an intention to safeguard those travelers; no

duty to those travelers arose because the purpose of

the contractual undertaking was not to make the highway safe or to protect travelers on the highway.

After careful consideration, we cannot subscribe

entirely to the duty analysis proposed by either side,

although, due in part to the idiosyncratic features of the

present case, we end up adopting an approach closer

to the one proposed by the defendants. Our reservation

concerning the defendants’ argument is the undue

weight it gives to the contractual origin of the duty

owed to third parties under § 324A of the Restatement

(Second). The third-party duty imposed under § 324A

is implied in law. It is triggered in the first instance by

a voluntary contractual (or gratuitous) undertaking, but

the duty owed by the undertaking party under § 324A,

once in existence, is not limited solely by reference to

the underlying contract or defined solely by the intentions of the contracting parties. The duty of reasonable

care imposed under § 324A exists regardless of whether
there is a contract (the undertaking may be gratuitous)

or whether the plaintiff is a third-party beneficiary of

the contract. The terms of a contract may be relevant

to the existence and scope of an undertaking, but they

do not determine whether a duty exists.19 Courts construing § 324A consistently have observed that ‘‘liability

. . . does not arise from, nor is it circumscribed by,

the contract [but] arises, if at all, from [the defendant’s]

undertaking’’ to render services to protect another.

Thompson v. Bohlken, 312 N.W.2d 501, 507 (Iowa 1981);

see also Davis v. Protection One Alarm Monitoring,

Inc., 456 F. Supp. 2d 243, 251 (D. Mass. 2006) (‘‘the

scope of [the] defendant’s duty to exercise due care

cannot be limited merely to the precise boundaries of

its contract, but instead are defined by the scope of the

undertaking it is performing’’); 2 Restatement (Third),

supra, § 43, reporters’ note to comment (h), p. 121

(although ‘‘[t]he existence of a contract may be relevant

to the question of whether an undertaking exists . . .

an undertaking does not require a valid contract, or

indeed any contract, as gratuitous undertakings are sufficient’’ [citation omitted]). Although the contract may

help to define the scope of the undertaking, ‘‘the congruence between the two need not be perfect,’’ and the

‘‘ability of an injured party to recover [does not] rise

or fall based on the exact language of the contract (or

indeed [on] whether the parties had formed an enforceable contract at all) . . . .’’ Davis v. Protection One

Alarm Monitoring, Inc., supra, 251.

This concern, though substantial, does not lead us

to conclude that the duty arising under § 324A of the

Restatement (Second) extends to the outer limits of

foreseeability, as the plaintiffs would have it. The plaintiffs’ pure foreseeability model has superficial appeal

because it is simple, it employs a familiar concept of

foreseeability used in most negligence cases and, not

insignificantly, it is tolerably compatible with the language of § 324A—’’should recognize as necessary for

protection of a third person . . . .’’20 Closer examination, however, gives rise to fundamental concerns that

prevent us from adopting foreseeability as the sole

determinant of duty under § 324A.

As we have observed, the precise terms of a contractual undertaking will not strictly delimit the extent of

the legal duty to protect third parties under § 324A of

the Restatement (Second), but it would be anomalous

if the nature and scope of the contractual undertaking

were wholly irrelevant to the nature and scope of the

duties arising from it. The foreseeability reference in

§ 324A is not free-floating but instead is anchored to

the reasonable expectations of the undertaking party

arising from the services to be performed. See 2

Restatement (Second), supra, § 324A, p. 142 (referring

to ‘‘services . . . which [the undertaking party] should

recognize as necessary for the protection of a third

person’’). It makes good sense that the scope of the
duties will not be entirely independent of the scope of

the undertaking when the undertaking is the original

source of the duty. To summarize, under § 324A, the

undertaking party not only will assume duties to third

parties expressly set forth in the contract itself, as well

as pass-through duties owed by the hiring party that

are assigned or transferred to the undertaking party,

but also will assume a duty of care to protect third

parties from foreseeable, physical harm within the

scope of the services to be performed.

Our conclusion in this regard is fully consistent with

the historical origins of § 324A of the Restatement (Second) itself. Section 324A derives from the ‘‘modern’’

common-law rule, first adopted a century ago, that a

defendant who undertakes to perform contractual services to another cannot raise a nonprivity defense

against a third person who is injured by the defendant’s

negligent performance. See Glanzer v. Shepard, 233

N.Y. 236, 239, 135 N.E. 275 (1922) (Cardozo, J.) (‘‘We

do not need to state the duty in terms of contract or

of privity. Growing out of a contract, it has none the

less an origin not exclusively contractual. Given the

contract and the relation, the duty is imposed by law

. . . .’’); see also Artiglio v. Corning Inc., 18 Cal. 4th

604, 613, 957 P.2d 1313, 76 Cal. Rptr. 2d 479 (1998)

(§ 324A embodies principle set forth in Glanzer);

Kaplan v. U.S. Bank, N.A., 166 S.W.3d 60, 70 (Mo. App.

2003) (§ 324A embodies ‘‘one of the [well recognized]

exceptions to the privity rule’’). The animating principle

behind § 324A recognizes that many modern and contemporary social activities, including commercial activities flowing from contractual undertakings, may have

foreseeable effects on strangers to the transaction, and

the law sensibly imposes a duty of due care on the

undertaking party to protect such persons who are put

at increased risk by the negligent performance of the

undertaking. The elimination of a privity defense, however, does not eliminate all other defenses that an undertaking party may have regarding the nature and scope

of the duty imposed; nor does the elimination of privity

expand the scope of the duty to third parties without

limitation. Section 324A precludes a defendant from

arguing that it owes no duty to third parties to the

transaction merely because they are third parties. The

defendant still can argue, however, that a particular

third-party plaintiff belongs to a class that is outside

the scope of protection afforded by § 324A due to the

limited scope and nature of the particular undertaking

at issue.

Under the circumstances of the present case, our

task is simplified because the dispute regarding the

scope of the duty arises in a very specific context involving third-party harm caused by a drunken motorist.

Existing and well established Connecticut common-law

rules provide significant guidance under these circumstances. As discussed previously, these rules, which the
plaintiffs do not request us to revisit or rescind, exhibit

a strong policy against imposing negligence liability for

off premises harm caused by drunk drivers. Indeed, the

defendants would not be exposed to negligence liability

even if they had been operating a bar or liquor store

rather than a service plaza, and had poured Goodale

the alcohol that caused him to become intoxicated that

day. The question presented in these appeals is whether

by undertaking a contractual obligation to prevent alcohol consumption and loitering on the premises of the

service plaza, the foregoing background common-law

assumptions were altered such that the defendants will

be deemed to have undertaken an obligation to prevent

the risk of harm posed to passing motorists by intoxicated drivers under § 324A of the Restatement (Second).

In our view, the same policy considerations underlying the preexisting Connecticut common law require,

in the context of the present case, either an express

contractual undertaking or evidence of an unambiguous intention on the part of the contracting parties

before the law will impose a duty to protect third persons from off premises harm caused by an intoxicated

driver. Unless there is sufficient evidence to support a

jury finding that the contracting parties actually

intended to depart from the preexisting liability rules,

or some other basis for imposing a duty—e.g., a special

caretaking or supervisory relationship between the

defendant and either the primary tortfeasor or the victim—a landowner or possessor who undertakes to prevent the consumption of alcohol as part of its on

premises responsibilities does not thereby incur a duty

to protect third parties from off premises physical harm

caused by a driver who became intoxicated before leaving the premises. The undertaking party’s duty to protect third persons from off premises harm under these

circumstances, in the absence of an express understanding between the contracting parties or an affirmative duty arising from some other source, is coextensive

with the preexisting duty of the property owner under

the common law. See DiLullo v. Joseph, 259 Conn. 847,

851, 792 A.2d 819 (2002) (determination as to appropriate default contract provision is based on policy considerations); State v. King, 361 Or. 646, 658, 398 P.3d

336 (2017) (contractual ‘‘[d]efault rules may be based

on . . . basic principles of justice’’ [internal quotation

marks omitted]).

In this regard, it is important to understand that the

duty analysis under § 324A of the Restatement (Second)

remains subject to policy based limitations. See Ruiz

v. Victory Properties, LLC, supra, 315 Conn. 337 (‘‘[t]he

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]);

see also Premo v. General Motors Corp., 210 Mich.

App. 121, 123–24, 533 N.W.2d 332 (1995) (holding that
Michigan public policy militated against imposing duty

to third persons on employer who allowed intoxicated

worker to drive away from workplace in alleged contravention of internal policy of preventing intoxicated

employees from driving); 1 Restatement (Third), Torts,

Liability for Physical and Emotional Harm § 7 (b), p.

77 (2010) (‘‘[i]n exceptional cases, when an articulated

countervailing principle or policy warrants denying or

limiting liability in a particular class of cases, a court

may decide that the defendant has no duty’’); 2

Restatement (Third), supra, § 43, comment (b), p. 115

(‘‘[e]ven though an affirmative duty might exist pursuant to this [s]ection, a court may decide, based on special problems of principle or policy, that no duty or a

duty other than reasonable care exists’’). The commonlaw rules that govern the premises liability of a property

owner or possessor in this context embody the public

policy determinations of the courts and the legislature

regarding the appropriate allocation of rights and obligations among the various parties. See Munn v. Hotchkiss School, supra, 326 Conn. 549 (‘‘duty . . . 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’’ [internal quotation marks omitted]); see also Barry v. Quality Steel Products, Inc.,

263 Conn. 424, 440, 820 A.2d 258 (2003) (‘‘the doctrine

of superseding cause involves a question of policy and

foreseeability regarding the actions for which a court

will hold a defendant accountable’’). There may or may

not come a time in the future when those commonlaw rules change in response to policy developments

relating to the serious social problem of drunken driving. This case presents no occasion to consider the

issue. In the absence of an express contractual provision or evidence of an unambiguous intention on the

part of the contracting parties, we can perceive no reason why the policy considerations underlying our

existing common-law rules of premises liability should

automatically or presumptively be abrogated when a

party’s contract with a property owner includes an obligation to prevent alcohol consumption on the premises,

without more. We therefore conclude that the duty proposed by the plaintiffs will not arise unless the parties

to such a contract agree to expand the undertaking

party’s obligations beyond what is imposed by the

existing law.

There is no evidence in the present case that the

parties intended contractually to alter or extend the

existing common-law rules holding that a party in the

defendants’ position has no duty to protect off premises

travelers from the risks posed by intoxicated drivers

who consumed alcohol while loitering at the service

plaza. The contractual documents themselves do not

mention or suggest the existence of any such duty. The

documents establish only that Project Service undertook a contractual obligation to prohibit alcohol con-
sumption and loitering at the service plaza, to notify

the police of any consumption of alcohol or loitering,

and to train all subcontractors and employees of subcontractors to comply with those contractual obligations. There is no reference to highway travelers or

their protection in connection with the no alcohol/no

loitering provision.21 Simply put, no aspect of the contract expresses an actual intention to protect highway

motorists from the risk of harm created by alcohol

consumption by individuals at the service plaza.

Nor does any extrinsic evidence presented by the

plaintiffs demonstrate any such contractual intent. The

plaintiffs submitted the deposition testimony of Paul

Landino, the chief executive officer of Project Service,

to support their contention that ‘‘[i]t was understood by

Project Service . . . that the reason for [the no alcohol

provision of the concession agreement] was the obvious

danger to patrons of the service plaza and motorist on

the adjacent . . . highway.’’ Landino’s testimony

unquestionably supports the conclusion that the danger

by its very nature is foreseeable, that is, that Project

Service knew, or should have known, that a person who

drove after consuming alcohol at the service plaza—or

anywhere else—posed a foreseeable risk of harm to

motorists on the roads. It is also reasonably clear that

Project Service believed that preventing alcohol consumption at the service plaza could in one sense reduce

the risk of such harm on the portion of the highway

immediately adjacent to the service plaza.22 But evidence that harm to motorists was a foreseeable result

of the negligent failure to prevent alcohol consumption

at the service plaza is not sufficient to establish that

the no alcohol/no loitering provisions were included in

the contract with the intention of protecting highway

travelers. Because Connecticut common law clearly

establishes a rule of nonliability in this context, the

plaintiffs were required to demonstrate that the parties

to the undertaking had an actual intention to protect

motorists when they included the no alcohol/no loitering provisions in the concession agreement. On this

record, no reasonable fact finder could conclude that

the parties to the concession agreement had such a

specific intent.

The plaintiffs also submitted evidence at the summary judgment stage showing that loitering and alcohol

consumption were ongoing problems at service plazas

in this state while Project Service was operating the

service plaza. In one inspection report, the DOT advised

the operator of a service plaza that it had removed a

sleeping homeless person from the service plaza and

that ‘‘the hassle free experience at this plaza is your

responsibility.’’ In another inspection report, the DOT

noted that the manager of the McDonald’s restaurant

at a service plaza wanted the operator of the service

plaza ‘‘to remove [a] homeless man as [his presence]

reduces sales and makes potential customers uncom-
fortable.’’ In yet another inspection report, the DOT

advised the operator of a service plaza that a ‘‘drunk

man was harassing one of the [McDonald’s restaurant]

employees at the drive [through] window.’’ Other

inspection reports noted the presence of panhandlers

and beggars at service plazas. These inspection reports

do not provide the necessary evidence of contractual

intention to create a jury issue. To the contrary, they

tend to confirm the defendants’ position that the purpose of the no alcohol/no loitering provisions was to

ensure the safety and comfort of customers and employees of the service plaza. The reports cast no light on

whether there was a specific intention to protect highway travelers.

We conclude that the evidence presented by the plaintiffs was insufficient as a matter of law to support a

finding that the contracting parties had the specific

intent to protect passing motorists from the risk of

harm created by the consumption of alcohol at the

service plaza. Because we hold that proof of such an

intention is required in the particular context of this

case, we must reverse the judgment of the trial court

with respect to the plaintiffs’ negligence claims and

remand the case with direction to render judgment in

favor of the defendants on those claims.

We recognize that the plaintiffs and their families

have suffered a horrible tragedy, through no fault of

their own. The plaintiffs’ harm was caused by a wrongdoer, Goodale, who is morally and legally culpable for

the unspeakable loss caused by his conduct. Although

we understand the plaintiffs’ desire to hold accountable

all entities who might have contributed to their loss,

we conclude for the foregoing reasons that the imposition of liability on the defendants is inconsistent with

the present state of Connecticut law. Accordingly, we

must reverse in part the judgment of the trial court.

III

It is unnecessary to reach the other grounds for reversal of the plaintiffs’ negligence claims advanced by the

defendants, but we do so briefly to demonstrate that

the flaws contained in the plaintiffs’ theory of liability

run deep, and the judgment would not be saved even

if we were to assume that Project Service undertook a

duty to protect passing motorists from the risk of harm

posed by intoxicated drivers. These additional grounds

relate to the specific predicates to liability necessary

under subsections (a) and (c) of § 324A of the Restatement (Second).

Section 324A (a) of the Restatement (Second)

imposes liability only if the defendants’ negligent conduct increases the risk of harm to the third party, in this

case the passing motorists on I-395. See 2 Restatement

(Second), supra, § 324A (a), p. 142 (person is liable for

failure to perform undertaking with reasonable care if
‘‘his failure to exercise reasonable care increases the

risk of such harm’’). The plaintiffs claim that the defendants increased the risk of harm to them by negligently

performing their undertaking of preventing the consumption of alcohol at the service plaza. They contend

that if the defendants had done their job properly, the

harm would have been prevented, and so their negligent

performance increased the risk of harm. The flaw in

this logic is concisely identified in Jain v. State, 617

N.W.2d 293 (Iowa 2000), in which the Iowa Supreme

Court, analyzing a virtually identical increased risk element found in § 323 of the Restatement (Second),

observed that ‘‘the increase in the risk of harm required

is not simply that which occurs when a person fails to

do something that he or she reasonably should have.

Obviously, the risk of harm to the beneficiary of a service is always greater when the service is performed

without due care. Rather . . . [liability exists] only

when the defendant’s actions increased the risk of harm

to [the] plaintiff relative to the risk that would have

existed had the defendant never provided the services

initially. Put another way, the defendant’s negligent performance must somehow put the plaintiff in a worse

situation than if the defendant had never begun performance.’’ (Citation omitted; internal quotation marks

omitted.) Id., 299.

We find Jain persuasive as applied to the circumstances in this case and, therefore, reject the plaintiffs’

suggestion that the negligent performance of an undertaking itself ordinarily will satisfy the increased risk

requirement of § 324A (a) of the Restatement (Second).

As the court in Jain recognized, under the plaintiffs’

interpretation, the ‘‘increased risk’’ element contained

in § 324A (a) would become an illusory requirement

because the failure to exercise reasonable care when

performing an undertaking that is necessary for the

protection of third persons will always increase the

risk to such persons over the level of risk that would

have existed if the undertaking were performed nonnegligently. We agree with the court in Jain that, in

the ordinary case under § 324A (a), a plaintiff must

establish that the contracting party increased the risk

of harm over the level of risk that would have existed

if there had been no undertaking at all.23

There is no evidence in the present case that the

defendants’ acts or omissions did anything to increase

the risk of harm within the meaning of § 324A (a) of

the Restatement (Second). We reject, in this connection, the plaintiffs’ claim that the defendants placed the

plaintiffs in a worse position than they would have

been in the absence of any undertaking because the

defendants ‘‘made the [service] plaza an attractive

option to Goodale’’ by permitting him to charge his cell

phone in the convenience store, to use the restroom

facilities and to purchase food. These allegations, even

if true, do nothing to show that the conditions at the
service plaza became more dangerous under the defendants’ operation than before Project Service engaged

in the undertaking, or that the defendants made the

service plaza a more attractive option to Goodale than

it would have been if Project Service had never undertaken to prevent loitering and alcohol consumption in

the first instance. Because there is no evidence that the

plaintiffs were placed in a worse position than they

would have been if there had been no undertaking in

the first instance to prevent the consumption of alcohol

at the service plaza, the increased risk requirement of

§ 324A (a) was not satisfied.

We likewise would conclude that liability under

§ 324A (c) of the Restatement (Second) has not been

established on this record because there is insufficient

evidence that either the DOT or passing motorists relied

on the defendants to protect travelers on I-395. See 2

Restatement (Second), supra, § 324A (c), p. 142 (person

is liable for failure to perform undertaking with reasonable care if ‘‘the harm is suffered because of reliance

of the other or the third person upon the undertaking’’).

The plaintiffs assert that Demond and Crouch ‘‘likely

would have avoided I-395 had they known [that] Project

Service . . . [was] allowing an intoxicated alcoholic to

live out of his car at the service plaza’’ but have cited

no evidence that would support such a finding. Nothing

in the record establishes that Demond or Crouch

believed that alcohol consumption at the service plaza

was not permitted or that they would have avoided I395 if they had been aware that the defendants could not

always be depended on to enforce such a prohibition.

A more substantial question under § 324A (c) of the

Restatement (Second) is whether the DOT, by requiring

Project Service and its subcontractors to prohibit loitering and alcohol consumption on the premises, relied

on them to protect drivers on I-395 from the physical

harm caused by drivers who might become intoxicated

by consuming alcohol at the service plaza. It is not

inconceivable to us that the DOT might wish to pursue

the laudable goal of enhancing highway safety by including a provision, expressly reflecting that intention, in

its service plaza concession agreements. If it did so,

and if the undertaking party agreed, then, assuming that

the DOT has authority to impose such a contractual

term,24 the DOT’s reliance on the undertaking party’s

performance presumably would trigger the undertaking

party’s liability to third parties under § 324A (c). But

there is no evidence of any such intention here, as we

previously have discussed in our duty analysis. The

no alcohol/no loitering provisions say nothing about

highway safety, there is nothing elsewhere in the contract to support a conclusion that the provisions were

intended to enhance highway safety, and no witness

testified that the DOT included the provisions to further

that objective or relied on the defendants to help

achieve it. Again, in the absence of such evidence, we
will not presume reliance under the circumstances of

this case in light of the well established, preexisting

common-law rules that inform our analysis.

In summary, we conclude that the defendants’ undertaking to prevent alcohol consumption and loitering at

the service plaza, standing alone, did not constitute an

undertaking to protect passing motorists from the risk

of harm created by persons who consumed alcohol at

the service plaza and then drove, thereby giving rise to a

duty to such motorists under § 324A of the Restatement

(Second). We also conclude that the plaintiffs have not

established that the defendants increased the risk of

harm to them within the meaning of § 324A (a), or that

the plaintiffs or the DOT relied on the undertaking for

the purposes of § 324A (c). Accordingly, we conclude

that the trial court improperly denied the defendants’

motions to set aside the verdict and to render judgment

in their favor on the plaintiffs’ negligence claims, and

we reverse the judgment as to those claims.

IV

We next address the plaintiffs’ claim that the trial

court improperly granted summary judgment in favor of

the defendants on the plaintiffs’ public nuisance claims.

The plaintiffs contend that the defendants created a

public nuisance by creating ‘‘an environment that

allowed and encouraged Goodale to loiter and [to] consume alcohol at the . . . service plaza for over a

week.’’25 We affirm the judgment of the trial court on

this claim.

The standard of review is not disputed. ‘‘In deciding

a motion for summary judgment, the trial court must

view the evidence in the light most favorable to the

nonmoving party. . . . The party seeking summary

judgment has the burden of showing the absence of

any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a

judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue

of material fact.’’ (Internal quotation marks omitted.)

Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly,

P.C., 311 Conn. 282, 290, 87 A.3d 534 (2014).

The substantive law governing public nuisance claims

is also well established. ‘‘Section 821B of the Restatement (Second) of Torts defines a public nuisance as

‘an unreasonable interference with a right common to

the general public.’ . . . Whether an interference is

unreasonable in the public nuisance context depends,

according to the Restatement (Second), on ‘(a)

[w]hether the conduct involves a significant interference with the public health, the public safety, the public

peace, the public comfort or the public convenience, or

(b) whether the conduct is proscribed by [law] . . . .’

4 Restatement (Second), [Torts] § 821B [p. 87, (1979)].
The rights common to the general public can include,

but certainly are not limited to, such things as the right

to use a public park, highway, river or lake. Id., § 821D,

comment (c) [p. 101].’’ (Citation omitted.) Pestey v.

Cushman, 259 Conn. 345, 356 n.5, 788 A.2d 496 (2002).

‘‘To prevail [on] a claim for public nuisance . . . a

plaintiff must prove the following elements: (1) the condition complained of had a natural tendency to create

danger and inflict injury upon person or property; (2)

the danger created was a continuing one; (3) the use

of the land was unreasonable or unlawful; [and] (4) the

existence of the nuisance was the proximate cause of

the plaintiffs’ injuries and damages. . . . In addition,

the plaintiff must prove that the condition or conduct

complained of interferes with a right common to the

general public. . . . Nuisances are public where they

. . . produce a common injury . . . . The test is not

the number of persons annoyed, but the possibility of

annoyance to the public by the invasion of its rights. A

public nuisance is one that injures the citizens generally

who may be so circumstanced as to come within its

influence.’’ (Citation omitted; internal quotation marks

omitted.) Shukis v. Board of Education, 122 Conn. App.

555, 586–87, 1 A.3d 137 (2010).

In Quinnett v. Newman, supra, 213 Conn. 348, this

court considered the question whether ‘‘the sale of substantial amounts of alcohol to one who thereafter operates a motor vehicle upon a public highway is analogous

to the types of acts that have been held to be public

nuisances.’’ We concluded that this type of conduct by

one in possession of land does not give rise to a public

nuisance for the same reason that it does not give rise

to a claim for negligence, namely, that the proximate

cause of the plaintiff’s decedent’s death was the intoxicated motorist’s ‘‘own immoderate use of the alcohol

and not in its service to him by the defendant sellers.’’

Id., 349.

The plaintiffs attempt to distinguish Quinnett on the

ground that, in that case, ‘‘the inherently dangerous

condition claimed to constitute a nuisance [was] the

intoxicated adult operator of the motor vehicle’’; id.;

whereas, in the present case, the claimed dangerous

condition was the ‘‘creation of an environment that

allowed and encouraged Goodale to loiter and [to] consume alcohol at the highway service plaza for over

a week.’’ The supposed distinction does not survive

examination on this record. As we have indicated, the

plaintiff in Quinnett contended that the defendants’

‘‘sale of substantial amounts of alcohol to one who

thereafter operates a motor vehicle upon a public highway’’ created a public nuisance. (Emphasis added.) Id.,

348. Our statement that the intoxicated driver was the

‘‘inherently dangerous condition claimed to constitute

a nuisance’’ merely recognized that the defendants’ sale

of liquor, in and of itself, was not dangerous. To the
extent that the defendants’ conduct contributed to the

creation of the dangerous condition (i.e., the intoxication of the motorist), their liability was cut off by the

intoxicated motorist’s own choice to consume alcohol

immoderately and then drive. See id., 349; see also

Bohan v. Last, supra, 236 Conn. 676 (‘‘Although we

have never held that [landowners who purvey alcohol

to social guests] have no [common–law] duty to exercise due care to protect the foreseeable victims of those

who drink and drive, we have, nonetheless, declined

to recognize a claim in negligence. Such a claim has

uniformly failed for the reason that the subsequent

injury has been held to have been proximately caused

by the intervening act of the immoderate consumer

whose voluntary and imprudent consumption of the

beverage brings about intoxication and the subsequent

injury.’’ [Internal quotation marks omitted.]); Ely v.

Murphy, 207 Conn. 88, 93, 540 A.2d 54 (1988) (‘‘At common law it was the general rule that no tort cause of

action lay against one who furnished, whether by sale

or gift, intoxicating liquor to a person who thereby

voluntarily became intoxicated and in consequence of

his intoxication injured the person or property either

of himself or of another. The reason generally given for

the rule was that the proximate cause of the intoxication

was not the furnishing of the liquor, but the consumption of it by the purchaser or donee. The rule was

based on the obvious fact that one could not become

intoxicated by reason of liquor furnished him if he did

not drink it.’’ [Internal quotation marks omitted.]). Similarly, in the present case, even if we assume that the

defendants’ conduct in allowing Goodale to live and

consume alcohol at the service plaza contributed to the

‘‘dangerous condition’’ (i.e., Goodale’s presence at the

service plaza in an intoxicated state), established legal

principles in Connecticut, which the plaintiffs have not

asked us to overrule, deem the sole proximate cause

of the crash to be Goodale’s choice to consume alcohol

immoderately and then drive on I-395. We conclude,

therefore, that the trial court properly granted the

defendants’ motions for summary judgment on the

plaintiffs’ public nuisance claims.

The judgment is reversed with respect to the plaintiffs’ claims for negligence and the case is remanded

with direction to render judgment for the defendants

as to those claims; the judgment is affirmed in all

other respects.

In this opinion the other justices concurred.

* These appeals originally were argued before a panel of this court consisting of Justices Palmer, McDonald, Robinson, D’Auria, Mullins and Kahn.

Thereafter, Justice Ecker was added to the panel and has read the briefs

and appendices, and listened to a recording of the oral argument prior to

participating in this decision. The listing of justices reflects their seniority

status on this court as of the date of oral argument.

1 Section 324A of the Restatement (Second) provides: ‘‘One who undertakes, gratuitously or for consideration, to render services to another which

he should recognize as necessary for the protection of a third person or his

things, is subject to liability to the third person for physical harm resulting
from his failure to exercise reasonable care to [perform] his undertaking, if

‘‘(a) his failure to exercise reasonable care increases the risk of such

harm, or

‘‘(b) he has undertaken to perform a duty owed by the other to the third

person, or

‘‘(c) the harm is suffered because of reliance of the other or the third

person upon the undertaking.’’ 2 Restatement (Second), Torts § 324A, p.

142 (1965).

We note that the language in the introductory portion of this section, ‘‘to

[perform] his undertaking,’’ apparently included a typographical error and

used the word ‘‘protect’’ instead of ‘‘perform.’’ See Hill v. United States

Fidelty & Guaranty Co., 428 F.2d 112, 115 n.5 (5th Cir. 1970) (‘‘[t]he reporter

for this edition of the Restatement, by a letter to counsel furnished to this

court, has verified that the word ‘protect’ which appears at this point is a

typographical error and should read ‘perform’ ’’).

Section 324A of the Restatement (Second) and the accompanying commentary were substantially revised by § 43 of the Restatement (Third) of

Torts, published in 2012. See 2 Restatement (Third), Torts, Liability for

Physical and Emotional Harm § 43, p. 114 (2012). For reasons not apparent

from the record, the parties have neither cited nor relied on § 43 at any

stage of this litigation. We decide the case as it was litigated, and, although we

refer to § 43 and related provisions of the Restatement (Third) on occasion

to help cast light on the construction and application of § 324A, we offer

no definitive ruling as to whether we would adopt § 43 if asked to do so,

or the effect that adopting § 43 might have on our analysis.

2 The jury awarded damages to the plaintiffs in the amount of $1,835,000,

and apportioned the defendants’ negligence as follows: 40 percent to Project

Service and 20 percent each to the other three defendants. The trial court

thereafter granted the plaintiffs’ motion for additur, increasing the total

damages award to $5,347,000. The plaintiffs accepted the court-ordered

additur on August 18, 2016.

3 The parties filed their appeals in the Appellate Court, and we transferred

the appeals to this court pursuant to General Statutes § 51-199 (c) and

Practice Book § 65-1.

4 The concession agreement required Project Service to ‘‘provide all applicable . . . safety . . . safeguards for operations of the [service plaza] . . .

that are required . . . to protect the health, safety and welfare of the public,

[e]mployees, [the DOT] and its employees and any [DOT] [r]epresentatives

and any of the [s]tate’s [r]epresentatives in accordance with all applicable

[l]egal [r]equirements.’’ The concession agreement also provided that Project

Service ‘‘shall not . . . allow the . . . consumption of any intoxicating or

alcoholic beverages or any fermented ale, wine, liquor or spirits in any part

of the [service plaza].’’ In addition, the safety plan that was incorporated

into the concession agreement provided that ‘‘Project Service . . . has made

a commitment to provide a drug and alcohol-free workplace. . . . The use,

possession of open containers, personal sale, transfer, or acceptance of

alcohol on Project [Service’s] property is strictly prohibited. Project Service

. . . has the right to remove from, or deny access to, our stores anyone on

our property under the influence of [a]lcohol, and/or consuming [a]lcohol

on our property. Project [Service’s] [f]acilities [m]anager may report illegal

activity to the appropriate law enforcement authorities.’’ The safety plan

also required Project Service and its subcontractors to ‘‘[l]ook for anyone

who may be watching or loitering in or around the [service plaza].’’ The

consumption of alcohol and loitering were considered to be emergencies

requiring Project Service and its subcontractors to call the state police. The

trial court found that the no alcohol/no loitering provisions were included

as part of various safety plans, operation manuals and downstream subcontracts binding on Alliance and 4MM.

5 The complaint also named O, R & L Facility Services, LLC, and Global

Partners, LP, as defendants. The claims against those defendants were disposed of before trial and are not at issue in these appeals.

6 At trial, the jury was instructed that Project Service could be held liable

to the plaintiffs under § 324A (a) or (c) of the Restatement (Second), but not

under subsection (b). Subsection (b) is strictly a ‘‘pass-through’’ provision,

which, as we discuss subsequently in this opinion, imposes liability on an

undertaking party based on that party’s assumption of a preexisting duty

owed by the original duty holder. See 2 Restatement (Second), Torts § 324A

(b), p. 142 (1965). Subsection (b) evidently was charged out of this case

because the plaintiffs made no claim that the original duty holder, the DOT,

had a preexisting duty to protect them from the risk of harm created by
persons who consumed alcohol at the service plaza and then drove onto

the highway. Although the jury was instructed that it could not hold Project

Service liable under subsection (b) of § 324A, no such instruction was provided as to Alliance or 4MM. To the contrary, the jury interrogatories and

verdict form permitted the jury to find Alliance and 4MM liable under § 324A

(b) for their negligent performance of a duty owed to the plaintiffs by either

Project Service or the DOT. The record does not disclose why the jury was

informed that Alliance and 4MM might have a duty arising from the DOT’s

duty to the plaintiffs when the parties believed that Project Service had no

such duty.

7 The trial court gave the following instructions to the jury on this issue:

‘‘[T]he defendants have a legal duty to the plaintiffs arising out of the

contracts with the [s]tate of Connecticut, and . . . [the DOT], and with

each other.’’

‘‘Project Service contractually undertook to render services to the [s]tate

of Connecticut. Those services were defined by the [c]oncession [a]greement

and the [s]afety [p]lan. Project Service had to perform its contractual obligations with reasonable care to avoid creating or increasing the risk of physical

harm to a third person, such as the plaintiffs. The contractual obligations

include adequate training and supervising its employees to report and

respond to the consumption of alcoholic beverages, an intoxicated person,

and/or allowing or permitting a person to live/loiter on the [service area]

. . . . Its legal duty is defined by its contractual undertakings.’’ (Emphasis added.)

The trial court also instructed the jury as follows with respect to § 324A

of the Restatement (Second): ‘‘An actor who undertakes to render services

to another and who knows or should know that the services will reduce

the risk of physical harm to which a third party is exposed, such as the

plaintiffs, has a duty of reasonable care to the third person, the plaintiffs,

in conducting the undertaking if:

‘‘(a) failing to exercise reasonable care increases the risk of harm beyond

that which existed without the undertaking, or

‘‘(b) the actor has undertaken to perform a duty owed by the other to a

third person, or

‘‘(c) the persons to whom the services are rendered, the third party, or

another relies on the actor’s exercising reasonable care in the undertaking.

‘‘If Project Service, through its agents, servants, or employees negligently

performed those services or contractual undertakings, as alleged by the

plaintiffs, when it knew or should have known that the contractual duties

were intended or designed to reduce the risk of physical harm to which the

travelers on the adjacent interstate highway, such as the plaintiffs, were

exposed, and

‘‘(a) Project Service’s failure to exercise reasonable care increases the

risk of harm beyond that which existed without the undertaking, or

‘‘(b) the person to whom the services are rendered, [the DOT], the third

party, such as the plaintiffs, or another relies on Project Service’s exercising

reasonable care in the undertaking, then Project Service violated the duty

of care owed to the plaintiffs and is negligent.’’ (Emphasis added.) The

court gave substantially similar jury instructions regarding the liability of

Alliance and 4MM under § 324A of the Restatement (Second), with the

additional instruction that those defendants could be held liable pursuant

to the pass-through provision of § 324A (b) because they undertook to

perform Project Service’s contractual duties. See footnote 6 of this opinion.

In his closing argument to the jury, counsel for the plaintiffs made certain

that the jury did not overlook this point, telling the jurors that the trial court

was going to charge them that Project Service ‘‘had a legal duty to the

plaintiffs arising out of the [contract] with the [DOT] . . . .’’

8 The jury interrogatories provide in relevant part: ‘‘1. Have the plaintiffs

proven by a preponderance of the evidence that Project Service . . .

through its agents, servants, or employees negligently performed the services

or contractual undertakings described by the concession agreement and

safety plan, as alleged by [the] plaintiffs, when it knew or should have known

that the contractual duties were intended or designed to reduce the risk of

physical harm to which the travelers on the adjacent interstate highway,

such as the plaintiffs, were exposed, and

‘‘(a) Project Service’s failure to exercise reasonable care in undertaking

or performing their contractual duties created or increased the risk of harm

beyond that which existed without the undertaking?

‘‘YES NO (Circle your response)

‘‘AND/OR
‘‘(b) the person/entity to whom the contractual services were rendered,

[the DOT], the plaintiffs, or another relied on Project [Service’s] exercising

reasonable care in the undertaking or performing of [its] contractual duties,

such that Project Service violated the duty of care owed to the plaintiffs

and is negligent?

‘‘YES NO (Circle your response).’’

The jury interrogatories included substantially similar instructions with

respect to Alliance and 4MM, with an additional instruction allowing the

jury to find those defendants liable pursuant to the pass-through provision

of § 324A (b) of the Restatement (Second). See footnote 6 of this opinion.

9 We note that the jury was never asked to make a finding as to the scope

of the defendants’ undertaking or the contractual intent of the parties.

10 The plaintiffs also contend that the trial court improperly applied the

nondelegable duty doctrine to the jury’s allocation of negligence. We do not

address this contention because we conclude that the trial court improperly

denied the defendants’ motions to direct a verdict in their favor on the

negligence claims and properly granted summary judgment on the public

nuisance claims.

11 For the sake of clarity and simplicity, we focus our analysis hereinafter

on the question of whether Project Service, the general contractor, owed

any duty or incurred any liability to the plaintiffs arising from its performance

under the no alcohol/no loitering provisions in the concession agreement.

On the facts of this case, the duties and liabilities of the other defendants

derived from Project Service’s undertaking. See footnote 4 of this opinion.

Accordingly, if Project Service had no duty or liability to the plaintiffs, then

it necessarily follows that the other defendants had no duty or liability to

the plaintiffs. In light of our conclusion that Project Service owed no duty

and incurred no liability to the plaintiffs, we need not consider the secondary

argument of Alliance and 4MM that they did not owe the plaintiffs a duty

even if Project Service did.

12 Three observations should be noted at this point to avoid unnecessary

analytical confusion. First, the discussion here is focused on the threshold

question of whether a duty is owed to plaintiffs under § 324A of the

Restatement (Second), not the question of establishing liability once that

duty is found to exist. If a duty is owed, liability under § 324A for breach

of the duty is determined by reference to subsections (a), (b) and (c) of

§ 324A. But the duty question comes first under § 324A, the same as it does

in other areas of tort law, and this threshold inquiry must not be overlooked

in cases under § 324A in which the scope of that duty is disputed. Second,

as we discuss subsequently in this opinion, as in other areas of tort law, there

are some circumstances in which policy considerations will be dispositive

of the duty analysis, regardless of what conclusion would follow under

§ 324A alone. Third, it is important to keep in mind that an undertaking

party can acquire an ‘‘ordinary’’ duty of care to others, directly and without

regard to § 324A, by acts or omissions that create (rather than only increase)

a risk of harm to others. See 2 Restatement (Third), Torts, Liability for

Physical and Emotional Harm § 43, comment (d), p. 115 (2012) (distinguishing acts that increase risk of harm, which are controlled by revised version

of § 324A, and acts that create risk of harm, which are governed by usual

rules governing negligence).

13 To be clear, the discussion here related to a duty to protect in the

context of off premises harm. There are other premises liability rules imposing liability on the possessor of land for harm caused by the conduct of a

third person on the premises. See, e.g., 2 Restatement (Second), supra, § 344,

pp. 223–24 (‘‘[a] possessor of land who holds it open to the public for entry

for his business purposes is subject to liability to members of the public

while they are upon the land for such a purpose, for physical harm caused

by the accidental, negligent, or intentionally harmful acts of third persons or

animals’’); see also Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270 (1973).

14 This rule does not apply when a property owner knowingly allows

minors to consume alcohol on his or her property. See Bohan v. Last, 236

Conn. 670, 681, 674 A.2d 839 (1996) (‘‘[i]n appropriate circumstances, adults

have a duty to refrain from negligently or intentionally supplying alcohol

to minors, whether such adults act as social hosts in their homes or as

purveyors in a bar, because minors are presumed not to have the capacity

to understand fully the risks associated with intoxication’’).

15 Connecticut’s Dram Shop Act, General Statutes § 30-102, governs the

liability of commercial entities that sell alcohol to intoxicated persons. General Statutes § 30-102 provides in relevant part: ‘‘If any person, by such

person or such person’s agent, sells any alcoholic liquor to an intoxicated
person, and such purchaser, in consequence of such intoxication, thereafter

injures the person or property of another, such seller shall pay just damages

to the person injured, up to the amount of two hundred fifty thousand

dollars, or to persons injured in consequence of such intoxication up to an

aggregate amount of two hundred fifty thousand dollars, to be recovered

in an action under this section . . . .’’

16 We recognize that these cases were decided on ‘‘causation’’ rather than

‘‘duty’’ grounds. See Bohan v. Last, supra, 236 Conn. 676 (‘‘Although we

have never held that [landowners who purvey alcohol to social guests] have

no [common-law] duty to exercise due care to protect the foreseeable victims

of those who drink and drive, we have, nonetheless, declined to recognize

a claim in negligence. Such a claim has uniformly failed for the reason that

the subsequent injury has been held to have been proximately caused by the

intervening act of the immoderate consumer whose voluntary and imprudent

consumption of the beverage brings about intoxication and the subsequent

injury.’’ [Internal quotation marks omitted.]). Both doctrines, however, are

driven in significant part by considerations of policy, separate and apart

from the foreseeability of harm, and it is fair to say that the causation doctrine

developed in these cases is based primarily on policy considerations. For

this reason, it is difficult to perceive any meaningful distinction between a

doctrine holding that landowners have no duty to prevent harm to roadway

travelers caused by drunk drivers and one holding that landowners have

such a duty but their liability is categorically barred by the intervening act

of the drunk driver.

17 We address later in this opinion the plaintiffs’ contention that, even if

Project Service may not be held liable to the plaintiffs merely because it

undertook to prevent alcohol consumption at the service plaza, it may be

held liable because the parties to the concession agreement specifically

intended to alter the common-law rule that a person in control of a property

may not be held liable for injuries caused by a person who consumed alcohol

on the property and then drove.

18 Under Florida law, ‘‘a public or private entity which owns, operates, or

controls a property, including a roadway, owes a duty to maintain that

property, and a corresponding duty to warn of and correct dangerous conditions thereon.’’ Pollock v. Dept. of Highway Patrol, 882 So. 2d 928, 933

(Fla. 2004).

19 If the intentions of the contracting parties controlled exclusively, then

there would be no need for § 324A of the Restatement (Second); we would

ask only whether the motorists on I-395 were third-party beneficiaries of the

concession agreement. See Dow & Condon, Inc. v. Brookfield Development

Corp., 266 Conn. 572, 580, 833 A.2d 908 (2003) (‘‘[t]he ultimate test to be

applied [in determining whether a person has a right of action as a thirdparty beneficiary] is whether the intent of the parties to the contract was

that the promisor should assume a direct obligation to the [third-party

beneficiary] and . . . that intent is to be determined from the terms of the

contract read in the light of the circumstances attending its making, including

the motives and purposes of the parties’’ [internal quotation marks omitted]).

Section 324A exists because contractual principles alone have been deemed

insufficient to provide adequate protection to those at risk of harm. See

Gazo v. Stamford, supra, 255 Conn. 253–58 (holding that defendant had

duty to plaintiff under § 324A, even though plaintiff was not third-party

beneficiary of contract); Jenkins v. Best, 250 S.W.3d 680, 695 (Ky. App.

2007) (defendant that agreed to provide perinatal services to hospital owed

tort duty to patient based on § 324A even though patient was not third-party

beneficiary of contract).

20 A pure foreseeability model of duty is ‘‘tolerably compatible’’ with the

relevant language of § 324A of the Restatement (Second) because the

Restatement (Second) refers to ‘‘services to another which the [undertaking

party] should recognize as necessary for the protection of [others] . . . .’’

2 Restatement (Second), supra, § 324A, p. 142. The phrase ‘‘should recognize

as necessary’’ is not a standard utilized in tort law, and its meaning is unclear.

Cf. 1 Restatement (Second), Torts § 11, p. 19 (1965) (defining ‘‘reasonably

believes’’ as used throughout Restatement); id., § 12, pp. 19–20 (defining

‘‘reason to know’’ and ‘‘should know’’). Moreover, the commentary to § 324A

provides no assistance in ascertaining the intended meaning. Courts appear

to assume, without particularized analysis, that the phrase simply requires

foreseeability of the third-party harm. See, e.g., Davis v. Protection One

Alarm Monitoring, Inc., supra, 456 F. Supp. 2d 249–52 (citing § 324A in

support of proposition that one who assumes contractual duty must perform

that duty with reasonable care to third parties who are foreseeably exposed
to danger and injured as result of negligent performance); Platson v. NSM,

America, Inc., 322 Ill. App. 3d 138, 151, 748 N.E.2d 1278 (2001) (‘‘[w]e hold

. . . that [§] 324A would impose liability for [the defendant’s] failure to

protect [the] plaintiff against such dangers provided they were reasonably

foreseeable when [the defendant’s] omission occurred’’); Cantwell v. Allegheny County, 506 Pa. 35, 41, 483 A.2d 1350 (1984) (‘‘[t]his is essentially a

requirement of foreseeability’’); Kuehl v. Horner (J.W.) Lumber Co., 678

N.W.2d 809, 813 (S.D. 2004) (reversing summary judgment in defendant’s

favor based on conclusion that ‘‘material issues of fact [exist] as to [the

defendant’s] assistance in loading the trailer for travel on a public highway

and [its] failure to use reasonable care thereby increasing a foreseeable risk

of harm to the public’’); Stephenson v. Universal Metrics, Inc., 251 Wis. 2d

171, 190, 641 N.W.2d 158 (2002) (‘‘As this court has applied it, the framework

of § 324A comports with Wisconsin’s principles of negligence law. The basic

principle of duty in Wisconsin is that a duty exists when a person fails to

exercise reasonable care—when it is foreseeable that a person’s act or

omission may cause harm to someone.’’). In Gazo v. Stamford, supra, 255

Conn. 245, in which we adopted the principles of liability contained in § 324A

(b), this court itself also underscored the important role that foreseeability

plays in the extension of negligence liability to contractors. Id., 254; see id.

(‘‘[a]lthough we agree that contractors may be liable to parties whom they

could not have necessarily identified specifically when entering into the

original contract, they always have had a duty to perform their work in a

nonnegligent manner, and our conclusion does no more than to hold contractors liable to those parties foreseeably injured by their negligence’’).

21 In a different portion of the concession agreement, Project Service

agreed to ‘‘maintain and control the [service plaza] in such a manner that

neither [Project Service] nor any [s]ubcontractor shall . . . intentionally

impede or endanger the safe and orderly flow of traffic in and along the

[r]oadways,’’ including I-395. (Emphasis added.) This latter provision has

no connection to the no alcohol/no loitering provisions and, therefore, has

no bearing on our analysis.

22 Landino testified as follows:

‘‘Q: Do you have an understanding as to why it is that the consumption

of alcohol is prohibited on the Montville service plaza premises?

* * *

‘‘A. Yes.

‘‘Q. Why is that?

‘‘A. Obviously, driving and drinking is not a healthy thing to partake in.

‘‘Q. So, I’m sure this is obvious, but so we get it clear on the record, you

were aware and you understood that drinking alcohol and driving is a

serious danger?

‘‘A. Yes, sir.

‘‘Q. And it poses even greater dangers on a highway service plaza, correct?

‘‘A. It’s bad everywhere.

‘‘Q. I assume you were aware and you would agree that at all times prior

to March 9 of 2012, you knew that the consumption of alcohol on the

premises of the Montville service plaza not only posed a risk of harm to

patrons at the plaza itself, but also to individuals on the highway as people

would leave the plaza, correct?

‘‘A. Absolutely.

‘‘Q. . . . I noticed in a number of the documents, the bid proposal for

instance was one of them, this document, there was an emphasis on the

safety of motorists traveling on the highways in the immediate vicinity of

the rest area.

‘‘A. Yes.

‘‘Q. You’ve seen that, correct?

‘‘A. Yes, yes.

‘‘Q. And that was and continues to be a primary concern of Project

[Service], correct?

‘‘A. Absolutely.

* * *

‘‘Q. It is their responsibility if there is a consumption of alcohol on the

property to follow the action plan that’s set out for the employee, correct?

‘‘A. That’s correct.

‘‘Q. And there is an awareness that if there’s a failure to do that, that

there is a serious danger to the motorists passing on the highway, correct?

‘‘A. I would say there would be or could be.’’

On appeal, the plaintiffs also rely on the following trial testimony given
by Landino:

‘‘Q. And there was an awareness that if there was a failure to follow that

emergency action plan, if there was a consumption of alcohol, that there

is a serious danger to the motorists passing on the highway, true?

‘‘A. Yes.’’

* * *

‘‘Q. And you were aware, were you not, that if there was a failure to

follow this action plan in the presence of consumption of alcohol at the

Montville plaza as of March 9 of 2012, that there was a serious danger to

passing motorists on the highway, true?

‘‘A. There could be, yes.’’

* * *

‘‘Q. And isn’t it true, and you told me this in your deposition, and you

reiterated it when I was asking you questions, that you were aware, and

Project Service was aware, that . . . if they failed to control [the consumption of alcohol and living at the service plaza], that there was a serious

danger or could be a serious danger to motorists on the passing highway;

isn’t that what you told me?

‘‘A. Yes, sir.’’

23 The Restatement (Third) points out that proof of reliance under § 324A

(c) of the Restatement (Second) may also satisfy the ‘‘increase the risk of

harm’’ requirement of subsection (a) of the Restatement (Second). See 2

Restatement (Third), supra, § 42, comment (f), p. 94 (increase in risk may

be established by proving that ‘‘the plaintiff or another relied on the actor’s

performing the undertaking in a nonnegligent manner and declined to pursue

an alternative means for protection’’); see also id., § 43, comment (e), pp.

115–16 (‘‘Reliance on an undertaking is another way in which the risk of

harm may be increased. An undertaking may create an appearance of safety

or make alternative arrangements appear unnecessary.’’). We address the

issue of reliance separately in the text of this opinion.

24 Alliance contended at oral argument before this court that, in the

absence of action by the legislature, the DOT could not lawfully impose a

contractual duty to protect third persons that is broader than the duty to

protect third persons existing under the common law. In light of our resolution of the case, we need not address Alliance’s contention.

25 Alliance contends that the plaintiffs were not aggrieved by the trial

court’s granting of summary judgment in favor of the defendants on the

public nuisance claims because the plaintiffs prevailed on their negligence

claims and, therefore, this court lacks jurisdiction to entertain the plaintiffs’

appeal. See, e.g., Jones v. Redding, 296 Conn. 352, 366, 995 A.2d 51 (2010)

(‘‘[A] litigant has no right to appeal a judgment in his or her favor merely

for the purpose of having the judgment based on a different legal ground

than that relied upon by the trial court, or to settle an abstract question of

law. . . . Additionally, [a]s a general proposition, a party who has fully

prevailed in the court below is not entitled to appeal from the judgment

solely for the purpose of attacking as erroneous the reasons of the court

or its conclusions of law.’’ [Citation omitted; internal quotation marks omitted.]); see also Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 91, 971

A.2d 1 (2009) (‘‘[i]f a party is found to lack [aggrievement], the court is

without subject matter jurisdiction to determine the cause’’ [internal quotation marks omitted]). At oral argument before this court, Alliance contended

that the plaintiffs would not be aggrieved by the trial court’s ruling on the

public nuisance claims even if the defendants prevailed in their appeals

challenging the trial court’s denial of their motions for a directed verdict

in their favor on the negligence claims. We disagree. Our reversal of the

judgment in the plaintiffs’ favor on the negligence claims and our remand

to the trial court with direction to render judgment for the defendants as

to those claims places the plaintiffs in the same position they would have

occupied if the trial court had ruled against them on those claims. If the

defendants had prevailed on all counts, the plaintiffs obviously would have

been entitled to appeal the adverse rulings on all counts, whether the rulings

had come at the same time or at different stages of the proceedings in the

trial court. It would make no sense to conclude that the trial court’s erroneous ruling on the negligence claims somehow bars the plaintiffs’ appeal

from the court’s earlier ruling against them on the public nuisance claims.