DOE v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER

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Supreme Court of Connecticut.

Tim DOE # 1 et al. v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER et al.

No. 18912.

Argued April 26, 2012. -- July 16, 2013

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and HARPER, Js.* Michael P. Shea, with whom were John W. Cerreta, pro hac vice, and, on the brief, Ernest J. Mattei, James H. Rotondo, and Paul D. Williams, for the appellant (named defendant). Stephen D. Ecker, with whom were Douglas Mahoney and, on the brief, M. Caitlin S. Anderson, for the appellee (named plaintiff).

Beginning in 1964, and continuing for decades, George E. Reardon, a physician, purported to conduct a “child growth study” under the auspices and on the premises of his employer, the named defendant, Saint Francis Hospital and Medical Center (hospital). The ostensible purpose of the study was to measure the growth rates of normal children to assist in the treatment of children with abnormally low rates of growth. In fact, Reardon was a pedophile and child pornographer who used the so-called study as a ruse to recruit and sexually exploit hundreds of unsuspecting children. The named plaintiff, Tim Doe # 1 (plaintiff),1 was one of those children. He brought this action against the hospital alleging, first, that the hospital negligently had failed to supervise Reardon's activities in connection with the study and, second, that the hospital had breached the special duty of care that it owes to children in its custody.2 Following a trial, the jury found for the plaintiff on both claims and awarded him $2,750,000. The trial court rendered judgment in accordance with the jury verdict, and, on appeal,3 the hospital raises three claims of instructional impropriety. Specifically, the hospital claims that the trial court improperly (1) failed to instruct the jury that it could not hold the hospital liable for Reardon's criminal acts unless it first found that the hospital knew or should have known of Reardon's propensity to sexually abuse children, (2) failed to instruct the jury that the hospital's bylaws do not themselves establish the standard of care, and (3) instructed the jury on the issue of custody in connection with the plaintiff's claim that the hospital breached its special duty of care. We reject these claims and, accordingly, affirm the judgment of the trial court.

The following facts were adduced at trial and are essentially undisputed. The hospital hired Reardon in 1964 as a physician specializing in endocrinology. Immediately upon assuming that position, Reardon began conducting a child growth study out of his office on the hospital's fourth floor. The study was approved by the hospital's research committee and was funded by the Saint Francis Hospital Association, which awarded Reardon several $750 stipends. According to hospital records, Reardon used this money, as well as money from the hospital's “Endocrinology Research and Education Fund,” to purchase large quantities of film, film processing materials, lenses, lighting equipment, an expensive movie camera, two books on erotica and another book entitled “The Juvenile Homosexual Experience and Its Effect on Adult Sexuality.”

The stated purpose of the study was to collect and analyze data on growth and maturation patterns in healthy children. Unbeknownst to the hospital, however, Reardon's real purpose in establishing and conducting the study was to create a situation in which he could be alone with children so that he could exploit them sexually. Over the course of the study, unwitting parents would drop their children off at the hospital, usually after school, but also on weekends, believing that the children were participating in legitimate medical research. By 1969, several hundred children, including the plaintiff, had participated in the study.

That year, the plaintiff, who was eight years old, and his ten year old sister were recruited for the study by Harold Scully, a family friend and physician at the hospital. The plaintiff's mother thought that participation in the study would be a good experience for her children, who were healthy and had no medical reason to see an endocrinologist, and would help instill in them the value of helping others. She never was informed, however, that, as part of the study, Reardon would be taking explicit photographs of her children and measuring their genitalia. It was her understanding, rather, that Reardon simply would be measuring their limbs and wingspan.4 The first time that she brought the children to Reardon's office, Reardon informed her that his work with them would take time and that she should return in two hours to pick them up. After she left, Reardon led the plaintiff and his sister into an inner office, where he had them undress. Reardon then positioned the plaintiff's sister on the floor and instructed the plaintiff to open her vagina and then her anus with his hand while Reardon took photographs.

The plaintiff saw Reardon three additional times between 1969 and 1972. The second visit was similar to the first, with Reardon photographing the plaintiff and his sister in sexually explicit poses. The third visit occurred in 1971, while the plaintiff was being treated at the hospital for rheumatic fever. Although Reardon was not the plaintiff's physician, the plaintiff recalls that Reardon came to his hospital room and, after talking to a nurse, directed an orderly to take the plaintiff to Reardon's office. The plaintiff has no memory of what transpired at the office, nor is there any indication in the plaintiff's hospital records that Reardon removed the plaintiff from his hospital room at any point in time. The fourth visit occurred in 1972, when the plaintiff was twelve years old. On that occasion, the plaintiff went to Reardon's office without his sister. When he arrived, another boy was there. Reardon took both boys into an examination room where he had them undress. Reardon then masturbated the plaintiff and put his mouth over the plaintiff's penis for approximately one minute. He also measured the plaintiff's penis with a metal instrument. The plaintiff was mortified by the experience and never saw Reardon again. For the next thirty-five years, neither the plaintiff nor his sister told their parents about what Reardon had done to them.

The plaintiff's experience was by no means unique. William Roe,5 another one of Reardon's victims, testified at trial that, in 1967, when he was twelve years old, he and his three brothers were asked to participate in the growth study. He recalls that, on one occasion, his mother dropped him and his brothers off at the hospital. Over the course of several hours, Reardon called each boy into an office, which was set up like a photography studio. When it was Roe's turn, Reardon told him to undress and informed him that “part of the study was to excite [him] to measure [his] growth.” Reardon then fondled Roe's penis until he ejaculated. Later, Reardon photographed all of the boys together, in groups and in pairs.

Another victim, Kevin Hunt,6 testified that he was recruited by Reardon to participate in the study in 1970, when he was thirteen years old. Hunt recalled being dropped off at the hospital by his mother. Reardon met him and another boy in the lobby and then escorted them both to his office. For five or six hours, Reardon took photographs of the two boys in various positions. Among other positions, Reardon directed the boys to drape themselves around one another and to engage in simulated sex acts. Reardon also manually manipulated Hunt's penis. When he was done, Reardon drove the boys home. On the way, he stopped at a store and bought each boy a model car.

In 2007, nearly a decade after Reardon's death, the owner of Reardon's former residence discovered, behind a false wall in the basement, between 50,000 and 60,000 photographic slides and 130 films, all containing child pornography. Many of the sexually explicit slides and films depicted children who had been recruited to participate in Reardon's purported growth study. Some of the sexually explicit images were of the plaintiff and his sister.

Thereafter, approximately 140 individuals filed negligence actions against the hospital seeking damages for the sexual abuse to which Reardon subjected them as participants in the growth study.7 Four individuals, including the plaintiff, were selected to participate in an initial consolidated trial. The trial court subsequently granted the hospital's motion to sever the cases. The plaintiff's case was tried first, and, at the conclusion of the evidence, the jury returned a verdict for the plaintiff in the amount of $2,750,000. This appeal followed.

The hospital raises three claims on appeal, all of which pertain to the trial court's jury instructions. The hospital's first two claims concern the propriety of the trial court's refusal to instruct the jury as the hospital had requested. Specifically, the hospital contends that the trial court improperly denied its requests to charge, first, that the jury could not find the hospital liable for Reardon's misconduct unless it found that the hospital had actual or constructive knowledge that Reardon was a pedophile and, second, that the hospital's bylaws do not themselves establish the standard of care. The hospital also maintains, with respect to the plaintiff's claim that the hospital breached a special duty of care, that the trial court improperly instructed the jury on the issue of custody. We address, and reject, each of these claims in turn.

Before doing so, however, it is useful to clarify what the hospital does not claim on appeal. The hospital does not contend that the plaintiff's evidence was insufficient with respect to any element of either of the plaintiff's two claims of negligence. Thus, the hospital does not claim, under either count of the plaintiff's complaint, that the plaintiff failed to establish that the hospital owed a duty to the plaintiff, that the hospital breached that duty, or that its breach was a proximate cause of the harm that the plaintiff suffered as a result of Reardon's sexual misconduct. In particular, the hospital does not claim that the evidence adduced by the plaintiff was inadequate to prove either that Reardon's misconduct was foreseeable or that the hospital negligently failed to take reasonable precautions to prevent that misconduct. Consequently, we have no occasion to consider whether the evidence in the present case was sufficient to support the jury verdict; because the hospital has not challenged that verdict on sufficiency grounds, it would be improper for us to second-guess the jury's factual findings.8 Finally, with the exception of the three discrete claims of instructional impropriety that we have identified, the hospital does not contend that the court's jury instructions were otherwise incomplete, inadequate or misleading. We now address the hospital's three claims.

I

We first consider the hospital's claim that the trial court improperly denied its request to instruct the jury that, to prove that the hospital had a duty to anticipate and take precautions to prevent Reardon's misconduct, the plaintiff was required to establish that the hospital knew or had reason to know of Reardon's propensity to sexually abuse children. In accordance with this instruction, the jury could not return a verdict for the plaintiff unless he established, as a predicate to liability, that the hospital had actual or constructive knowledge of Reardon's pedophilia. In support of this claim, the hospital maintains that, as a matter of law, a defendant may be found liable for damages resulting from the criminal acts of a third party only upon a showing that the defendant knew or had reason to know of that third party's criminal propensities.9 We are unpersuaded by the hospital's claim.

The following additional facts and procedural history are relevant to our resolution of this issue.10 The plaintiff's final amended complaint contained two counts. In the first count, the plaintiff alleged that the hospital committed corporate negligence in that the hospital “allowed Reardon to conduct a [child] growth study without establishing protocols, rules or guidelines” and “violated its own rules” by failing to “properly monitor and supervise Reardon” in connection with the growth study so as “to prevent injury to” the minor subjects of the study, including the plaintiff.11 In count two, the plaintiff alleged that the hospital breached the special duty of care that a hospital owes to children entrusted to its custody.12 With respect to both counts, the plaintiff claimed that the hospital's negligence “caused [him] to sustain bodily injury, emotional distress and an impairment of his ability to carry on and enjoy life's activities.”

During the plaintiff's case-in-chief, the plaintiff's counsel presented the expert testimony of Arthur Sidney Shorr, a healthcare administration consultant and former hospital administrator. Shorr testified that, during the relevant time frame, the standard of care applicable to the hospital's supervision of research was reflected in the hospital's “Bylaws, Rules and Regulations of the Medical and Dental Staff” (bylaws), the 1969 version of which was entered into evidence. Section 13 of the bylaws, entitled “The Research Committee,” provides in relevant part: “The duties of [the research] [c]ommittee shall be to receive and review proposals for research projects submitted by members of the [s]taff and to forward its recommendations to the [e]xecutive [c]ommittee․ The [research] [c]ommittee, under the direction of the [e]xecutive [c]ommittee and the [a]dministration, shall be responsible for supervision of the research space and facilities of the hospital․ The [research] [c]ommittee shall require and receive periodic reports of the progress of investigations which have been approved and initiated. On the basis of such reports, it shall recommend continuance or discontinuance․ [The research] [c]ommittee shall meet at least quarterly and shall submit recommendations, as indicated, to the [e]xecutive [c]ommittee and to the [a]dministration on matters relating to the general conduct of research in the hospital.”

The plaintiff also introduced into evidence five other internal hospital documents relating to research. The first document contains the minutes of a December 14, 1960 meeting of the hospital's board of directors. Those minutes provide in relevant part: “The [r]esearch [c]ommittee of the [m]edical [s]taff is charged with the responsibility of reviewing and making recommendations on research proposals, following the progress of investigation[s] already initiated, and, in general, supervising the facilities for, and conduct of, research in the hospital. Our research program is still in its infancy, and the activities of the [research] [c]ommittee to date have been limited․”

The second document, a letter dated June 2, 1961, from the research committee to the hospital's executive committee of the medical and surgical staff, provides in relevant part: “1. The charge to the [research] [c]ommittee was reviewed ․ and the following procedures were voted:

“(a) The [research] [c]ommittee will request progress reports at [six month] intervals from those conducting approved projects.

“(b) The [research] [c]ommittee will assign space in the new research laboratories on a yearly basis. [Reassignment] of the space will be considered on the basis of approved projects which show continuing progress as well as new projects submitted․”

The third document is the charge to the research committee referenced in the June 2, 1961 letter to the executive committee. It provides in relevant part: “Responsibility of a Research Committee

“1. Review and take action on proposals for research submitted by members of the staff. Proposals not to be considered unless presented in detail including experience of investigator, objectives, methods to be used, length of project, possible results, costs—including space requirements, personnel, sources of available funds, etc.

2. Forward results of such action and recommendation to the [e]xecutive [c]ommittee of the [s]taff.

* * *

“4. Require and receive periodic reports of the progress of investigations which have been approved and initiated. Recommend continuance or discontinuance.

“5. Submission of recommendations to the [e]xecutive [c]ommittee and the [a]dministration on matters relating to the general conduct of research in the hospital․”

The fourth document is the October 25, 1966 annual report of the research committee to the medical staff. This document, which identifies completed, continuing and new research projects, provides in relevant part: “The [r]esearch [c]ommittee will meet at quarterly intervals, or as need demands, and significant findings will be reported to the [m]edical [s]taff at its regular meetings.

“Physicians contemplating any research projects are requested to contact this committee in accordance with the [b]ylaws. This will help to keep the [m]edical [s]taff informed of the research activities and to facilitate the acquisition of funds.”

The plaintiff also introduced into evidence a document, signed by the hospital's chief administrator, entitled “Institutional Assurance on Investigations Involving Human Subjects Including Clinical Research.” This document, which the United States Public Health Service (PHS) required all hospitals to endorse as a prerequisite to receiving federal research funding, provides in relevant part: “[The][h]ospital ․ agrees with the principles of the [PHS][p]olicy (identified as [p]olicy and [p]rocedure [o]rder 129 dated July 1, 1966) with regard to investigations involving human subjects, including clinical research. This institution agrees that review independent of the investigator is necessary to safeguard the rights and welfare of human subjects of research investigations and assures [PHS] that it will establish and maintain advisory groups competent to review plans of investigation involving human subjects, prior to initiation of investigations, to [e]nsure adequate safeguard[s]. Group reviews and decisions will be carried out in reference to (1) the rights and welfare of the individuals involved, (2) the appropriateness of the methods used to obtain informed consent, and (3) the risks and potential medical benefits of the investigations.

“The institution also agrees to exercise surveillance of PHS-supported projects using human subjects for changes in protocol which may alter the investigational situation with regard to the criteria cited above. The institution further assures [PHS] that it will provide advice and consultation to investigators on matters of employing human subjects in investigation, and also that it will provide whatever professional attention or facilities may be required to safeguard the rights and welfare of human subjects involved in investigation. Records of group review and decision on the use of human subjects and of informed consent will be developed and kept by the institution.

“Attached as part of this statement are copies of [the] policy and procedure of this institution with regard to use of human subjects in investigation[s], as well as a description of the groups utilized to review projects for enforcement of these policies and the manner in which the institution will [as]sure itself that the advice of the committee of associates is followed.”

Attached to the institutional assurance document were two appendices. The first is a general statement by the hospital adopting the ethical principles set forth in the Declaration of Helsinki regarding the use of human subjects in clinical research. In the statement, the hospital pledges, among other things, “to safeguard the rights and welfare of human subjects used in medical investigations․”

The second is a research committee memorandum regarding committee oversight of investigations utilizing human subjects. The memorandum provides in relevant part: “In order to provide a basis for agreement between [the hospital] and certain granting agencies, the ․ [h]ospital [r]esearch [c]ommittee has been assigned the responsibility for providing formal review of investigations utilizing human subjects․

“For investigations utilizing human volunteers, the [r]esearch [c]ommittee will review each research plan for agreement with [the] ․ [h]ospital and granting agency policy and especially with regard to: (1) the rights and welfare of the individual or individuals involved, (2) the appropriateness of the methods used to secure informed consent, and (3) the risks and potential benefit of the investigation. This review will be provided prior to [the] inception of research. To initiate the review, the [research] [c]ommittee recommends the following procedure:

“Each investigator should describe in his research plan—

“1) the procedures he will follow to [en]sure the rights and welfare of the patient and to secure and document informed consent,

“2) the nature of the professional attention and facilities he will provide, and

“3) the risks and potential medical benefits of the investigations proposed.”

Shorr was asked to explain the significance of each of these documents, which he did primarily by reading aloud from the documents or restating them in his own words. Shorr also testified that, on the basis of his review of the facts and circumstances surrounding Reardon's growth study, and contrary to the criteria set forth in the various documents, he “did [not] see any indication that anyone at [the] ․ [h]ospital ever once reviewed anything to do with ․ Reardon's growth study while it was ongoing․”

The plaintiff also presented the testimony of Maria New, a pediatric endocrinologist and professor of pediatrics at Mount Sinai School of Medicine in New York.13 New, who graduated from medical school in 1954, testified that the standard of care from 1969 to 1972 required that endocrinologists, when examining or photographing the genitals of a child, have a chaperone present in the room. New also stated that, in all her years of practicing pediatric endocrinology, she never had seen or heard of a physician photographing the genitals of a child without a parent being present, either in the room where the photographs were being taken or just outside the room. The purpose of the chaperone requirement, she explained, was to protect the privacy and safety of the children being photographed. New also testified that, during the relevant time frame, there was no medical or scientific need or reason for a study analyzing data on growth and maturation patterns of healthy children.

The hospital thereafter adduced testimony from Thomas Godar, a retired physician who served on the hospital's research committee from 1969 through the 1980s. Godar testified that the 1967 institutional assurance and the hospital's internal policies regarding research did not apply to observational research such as Reardon's growth study but, rather, only to clinical research in which invasive medical procedures were performed. With respect to observational research, Godar stated that no oversight was required and none was undertaken. Nevertheless, on cross-examination, Godar acknowledged that, during his tenure as a member of the research committee, he was aware that Reardon was photographing and measuring the genitals of children as part of his growth study.

During closing arguments to the jury, the plaintiff's counsel maintained that the hospital was negligent in two ways. First, counsel argued that the hospital negligently had failed to follow its own rules relating to research conducted under the auspices of the hospital. More specifically, the plaintiff's counsel asserted that the jury need not rely on all of the so-called “warning signs,” such as the books on erotica and the expensive film equipment that Reardon had purchased with hospital funds. Instead, he argued, the jury could rely solely on the fact that the hospital had failed to do what it was required to do with respect to the supervision of research conducted under its auspices. If the hospital had followed its own rules with respect to these requirements, counsel maintained, Reardon's study “never would have gotten off the ground,” but, even if it had, it would have ended long before the plaintiff volunteered to participate in the study in 1969. Second, counsel asserted that the hospital was liable because of its failure to take reasonable precautions to protect the plaintiff when he was in its custody, both when the plaintiff was at the hospital participating in the growth study and when he was there being treated for rheumatic fever.14

In his closing remarks to the jury, counsel for the hospital argued that the plaintiff had not proven any of the elements of a negligence action. In particular, he argued that the plaintiff had presented no evidence that, during the relevant time frame, it was foreseeable that Reardon would sexually abuse children. In fact, he argued, the evidence was to the contrary.15 Counsel also asserted that Shorr, the plaintiff's expert, had not testified credibly as to the standard of care applicable to the supervision of hospital research because Shorr never had served on a research committee and acknowledged that he knew nothing about research protocols. Finally, counsel for the hospital argued that, although Shorr testified that the hospital was obligated to supervise Reardon's research, Shorr had failed to explain what that supervision would have consisted of, and, therefore, it was impossible to determine whether, even if the hospital had done everything that Shorr claimed it was supposed to do, Reardon likely would have been prevented from sexually abusing the plaintiff.

After the parties' closing arguments, the trial court instructed the jury on the applicable legal principles. Prior thereto, the hospital had requested that the trial court instruct the jury that it was “the plaintiff's burden to prove that [the hospital] owed a duty to the plaintiff to supervise ․ Reardon, who by law was required to be licensed by the state to practice medicine and was subject to oversight and supervision by the licensing authorities. In order to prove that [the hospital] owed [the plaintiff] such a duty, [he] must prove that the specific harm alleged ․ was foreseeable to [the hospital]. Specifically, the plaintiff must prove that [the hospital] had either actual or constructive notice that ․ Reardon had a propensity to sexually abuse children before the plaintiff was abused by [him].”

The trial court denied the hospital's request to charge and, after reviewing the allegations of the complaint with the jury,16 instructed the jury in relevant part: “[T]he plaintiff has asserted several allegations in two separate counts of negligence. A cause of action for negligence has four elements: duty; breach of duty; causation; and damages. At this time, I want to instruct you on what negligence means. Negligence is the violation of [a] legal duty which one person owes to another to care for the safety of that person or that person's property․ [W]hen I use the term ‘person’ in these instructions, that includes a corporate entity such as [the hospital]. Under our common law, negligence is the failure to use reasonable care under the circumstances. Reasonable care is the care that a reasonably prudent person would have used in the same circumstances.

“In determining the care that a reasonably prudent person would use in the same circumstances, you should consider all of the circumstances which were known or should have been known to the [hospital] at the time of the conduct in question. Whether care is reasonable depends [on] the dangers that a reasonable person would perceive in those circumstances. It is common sense that the more dangerous the circumstance is, the great[er] the care that ought to be exercised.

“Now, a person is required to use greater care when the presence of children may be reasonably expected. The question is whether a reasonably prudent person in the [hospital's] position knowing what the [hospital] knew or should have known would anticipate that harm of the same general nature as that which occurred here was likely to result. In answering this question, you may take into account the tendency of children to disregard dangerous conditions.

“With regard to count two of the complaint, alleging a breach of the special duty owed to the plaintiff by the [hospital], you should note that, except in limited circumstances, a person has no duty to take actions in order to control the conduct of a third person to prevent harm to another person. One of the exceptions to this general rule is when there's a special relation between the actor and the other which gives a right to protection. In this case, there must be a special relation between [the plaintiff] and [the hospital] in order for the exception to apply.

“The relation between a hospital and a child obligates the hospital to protect the child from harm, if you find that the hospital had custody of the child at the time that the harm occurred. To determine whether a custodial relationship existed, you must decide whether the plaintiff was deprived of his normal powers and/or opportunity of self-protection. This special duty is enhanced when the child is of tender years or otherwise incapable of managing his or her own affairs․ [I]n determining whether this special [duty] arose as alleged in count two, you should consider whether ․ Reardon, as an employee of the hospital, had custody of [the plaintiff] at any time while he was in his office or at the hospital.

“A duty to use [care] exists when a reasonable person, knowing what the [hospital] here either knew or should have known at the time of the alleged conduct, would foresee that harm of the same general nature as that which occurred here was likely to result from that conduct. If harm of the same general nature as that which occurred here was foreseeable, it does not matter if ․ the manner in which the harm ․ actually occurred was unusual, bizarre or unforeseeable.”

Finally, the court instructed the jury: “[T]o prove that an injury is a reasonably foreseeable consequence of negligent conduct, a plaintiff need not prove that the [hospital] actually foresaw or should have foreseen the extent of the harm suffered or the manner in which it occurred. Instead, the plaintiff must prove that it is a harm of the same general nature as that which a reasonably prudent person in the [hospital's] position should have anticipated in view of what the [hospital] knew or should have known at the time of the negligent conduct.

“The [hospital] ․ claims that it was not foreseeable that ․ Reardon would harm [the plaintiff]. The plaintiff claims that harm of the same general nature as that which was allegedly sustained by the plaintiff was foreseeable.”

After the jury returned its verdict for the plaintiff, the hospital filed a motion for a directed verdict17 and to set aside the verdict, in which it claimed, inter alia, that, under settled law, it was under no duty to prevent Reardon from abusing the plaintiff sexually unless it knew or had reason to know of Reardon's propensity to inflict such abuse. The hospital further maintained that the trial court's refusal to instruct the jury on this legal principle entitled the hospital to a new trial. The plaintiff disputed this claim, arguing that the present case did not require evidence that the hospital had such prior knowledge of Reardon's propensity to abuse children because the plaintiff's theory of liability was predicated on his contention that, under the circumstances, the hospital's failure to supervise Reardon's activities gave rise to a risk of harm that was both foreseeable and unreasonable regardless of whether the hospital knew or should have known that Reardon was a pedophile. Following arguments on the hospital's motion, the trial court denied it.

On appeal, the hospital renews its claim that the trial court improperly declined to instruct the jury that it could find the hospital negligent only if it found that the hospital had actual or constructive knowledge of Reardon's propensity to sexually abuse children. In support of its claim, the hospital relies on the principle that there ordinarily is no duty to aid or protect another. Although the hospital acknowledges an exception to this general rule when a special relationship of custody or control exists between the parties such that imposition of a duty to protect is justified by considerations of public policy, it nevertheless maintains that the scope of that duty does not extend to protecting against the criminal misconduct of a third party unless the defendant knew or should have known of that third party's criminal propensity.18 This is so, the hospital explains, because, in the absence of such actual or constructive knowledge, the third party's criminal misconduct is never foreseeable. The hospital further asserts that the trial court's failure to instruct the jury in accordance with this principle was harmful because the instruction was necessary to guide the jury in its consideration of the parties' claims with respect to the issues of duty and breach of duty.

The plaintiff contends that the trial court's instructions represented a correct statement of the law because there is no blanket or absolute rule of nonliability when the defendant lacks actual or constructive knowledge of a third party's propensity to engage in criminal conduct. The plaintiff maintains, rather, that, in all negligence actions, including those involving harm intentionally caused by third parties, whether the defendant owed a duty to the injured party turns on whether, as the trial court instructed the jury in the present case, a reasonably prudent person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that, as a result of the defendant's conduct, the injured party would suffer harm of the same general nature as that which occurred. The plaintiff further asserts that this is equally true whether the claim of negligence arises in the context of the special custodial relationship, which the plaintiff alleged in count two of his complaint, or whether, as the plaintiff alleged in count one of his complaint, the hospital's “failure to exercise reasonable care in connection with the growth study that [the hospital] authorized, sponsored and hosted” resulted in foreseeably harmful consequences to the plaintiff. Thus, with respect to both of his claims, the plaintiff explains that they are “based on allegations of negligence arising from the fact that [the hospital] itself arranged a perfect situation for sexual exploitation by approving and funding a growth study in which it provided an employee with a private setting, bought him sophisticated photography equipment, and allowed him uncontrolled access to hundreds of young children knowing that he was photographing and handling their genitalia—all without any precautions whatsoever.” (Emphasis omitted.)

For the reasons set forth more fully hereinafter, we reject the hospital's contention that the trial court improperly declined to charge the jury that it could not find the hospital negligent unless it found that the hospital knew or should have known that Reardon was a pedophile. It is true that, as a general matter, a defendant is not responsible for anticipating the intentional misconduct of a third party; see, e.g., 2 Restatement (Second), Torts § 302 B, comment (d), p. 89 (1965);19 unless the defendant knows or has reason to know of the third party's criminal propensity. The criminal misconduct of a third party may be foreseeable under the facts of a particular case, however, without a showing that the defendant had such actual or constructive knowledge of the third party's criminal propensity. As this and many other courts have recognized, when a defendant's conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, or when the defendant otherwise has a legally cognizable duty to aid or protect another person, the fact that the harm is brought about by the actions of a third party does not relieve the defendant of liability, even though the third party's conduct is criminal, if the harm that occurred is within the scope of the risk created by the defendant's conduct or reasonably could have been anticipated in light of the defendant's duty to protect. Thus, when the harm resulting from the criminal misconduct of a third party is foreseeable in view of the facts and circumstances presented, there is no reason why the injured party should nevertheless be required to establish that the defendant had actual or constructive knowledge of the third party's criminal propensity.

In other words, as the plaintiff aptly explains, proof of actual or constructive knowledge of propensity is but one way to establish that the criminal misconduct of the third party was foreseeable. Of course, evidence demonstrating such knowledge of the third party's criminal propensity will be the only way for the injured party to establish foreseeability in cases in which there is no other evidence from which the jury reasonably could find that the harm resulting from the third party's criminal misconduct should have been anticipated by the defendant. It also is true that those cases comprise the great majority of cases involving claims of a breach of duty by the defendant for failing to anticipate the criminal misconduct of a third party, whether that third party is the defendant's employee or someone else. But when, as in the present case, there is no claim that the other, nonpropensity evidence was insufficient to support the claim that the criminal misconduct of the third party was foreseeable, it is improper to instruct the jury, as the hospital in the present case requested, that the injured party cannot prevail in the absence of proof that the defendant knew or should have known of the third party's criminal propensity. The reason for this conclusion is well-nigh self-evident: in the absence of proof of actual or constructive knowledge of propensity, such an instruction would foreclose the jury from returning a verdict for the plaintiff predicated on the other evidence adduced by the injured party on the issue of foreseeability.

The following principles guide our analysis of the hospital's claim. “The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established․ The purpose of a request to charge is to inform the trial court of a party's claim of the applicable principle of law․ In determining whether a trial court improperly declined to instruct the jury in accordance with a party's request to charge, we review the evidence presented at trial in the light most favorable to supporting the ․ proposed charge․ A request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given․ It follows from this principle, however, that a request to charge must be an accurate statement of the law․ Indeed, it is axiomatic that a trial court should not instruct the jury in accordance with a request to charge unless the proposed instruction is a correct statement of the governing legal principles.” (Citations omitted; internal quotation marks omitted.) Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 247, 943 A.2d 430 (2008).

“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury․ Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action․ Thus, [t]here can be no actionable negligence ․ unless there exists a cognizable duty of care”; (citations omitted; internal quotation marks omitted) Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 525, 832 A.2d 1180 (2003); the scope of which we sometimes refer to as the standard of care. Lepage v. Horne, 262 Conn. 116, 123, 809 A.2d 505 (2002). “In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable [person] to protect them against an unreasonable risk of harm ․ arising out of the act.” 2 Restatement (Second), supra, § 302, comment (a), at p. 82, 809 A.2d 505. “[T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.” (Internal quotation marks omitted.) Ryan Transportation, Inc. v. M & G Associates, supra, at 525–26, 832 A.2d 1180. “With respect to the second inquiry, namely, the policy analysis, there generally is no duty that obligates one party to aid or to protect another party.” Id., at 526, 832 A.2d 1180, citing 2 Restatement (Second), supra, § 314, at p. 116, 809 A.2d 505 (“[t]he fact that the actor20 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”).

An exception to the general rule that one has no legal obligation to protect another may arise when the defendant's own conduct creates or increases the foreseeable risk that such other person will be harmed by the conduct of a third party, including the foreseeable criminal conduct of that third party. As we now discuss more fully, it is this exception, which is set forth in §§ 302 B and 449 of the Restatement (Second) of Torts,21 and reflected in other related provisions of the Restatement (Second), that applies to the first count of the plaintiff's complaint alleging corporate negligence.

Section 302 B, entitled “Risk of Intentional or Criminal Conduct,” provides that “[a]n act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.”22 2 Restatement (Second), supra, § 302 B, at p. 88, 809 A.2d 505. Thus, “[i]f the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.” Id., § 449, at p. 482, 809 A.2d 505. In other words, as this court previously has explained in reliance on a closely related provision of the Restatement (Second) pertaining to legal causation, “[t]he actor's conduct may be negligent solely because he should have recognized that it would expose [another] person ․ to an unreasonable risk of criminal aggression. If so, it necessarily follows that the fact that the harm is done by such criminal aggression cannot relieve the actor from liability (see § 449 [of the Restatement (Second) of Torts] ). [Moreover], it is not necessary that the conduct should be negligent solely because of its tendency to afford an opportunity for a third person to commit the crime. It is enough that the actor should have realized the likelihood that his conduct would create a temptation which would be likely to lead to its commission.” (Internal quotation marks omitted.) Stewart v. Federal Dept. Stores, Inc., 234 Conn. 597, 611–12 n. 10, 662 A.2d 753 (1995), quoting 2 Restatement (Second), supra, § 448, comment (c), at p. 482, 662 A.2d 753.23

This court has adhered to other provisions of the Restatement (Second) that are consistent with the negligence principles set forth in §§ 302 B and 449, including “the standard set forth in § [442 B] of the Restatement [Second], that [w]here the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct.”24 (Emphasis added; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. at 607–608, 662 A.2d 753, quoting 2 Restatement (Second), supra, § 442 B, at p. 469, 662 A.2d 753; accord Monk v. Temple George Associates, LLC, 273 Conn. 108, 124, 869 A.2d 179 (2005); Merhi v. Becker, 164 Conn. 516, 522, 325 A.2d 270 (1973). Under § 442 B, although a defendant is shielded from liability for the intentional misconduct of a third party outside the scope of the risk created by the defendant's conduct, even “[t]ortious or criminal acts may ․ be foreseeable, and so within the scope of the created risk․” (Internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., supra, at 611 n. 10, 662 A.2d 753, quoting 2 Restatement (Second), supra, § 442 B, comment (c), at p. 471, 662 A.2d 753. In such circumstances, when the harm caused by the criminal acts of a third party is a foreseeable consequence of the defendant's conduct and, therefore, within the scope of the risk created by the defendant's conduct, that conduct may be actionable. Section 448 of the Restatement (Second), which we applied in Doe v. Manheimer, 212 Conn. 748, 759 and n. 5, 563 A.2d 699 (1989), overruled in part on other grounds by Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. at 597, 662 A.2d 753, also reflects this principle: “The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized ․ that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.” (Emphasis added.) 2 Restatement (Second), supra, § 448, at p. 480, 662 A.2d 753.25

More specifically, one of the comments to § 302 B of the Restatement (Second) further explains that “[t]here are ․ situations in which the actor, as a reasonable man, is required to anticipate and guard against the intentional, or even criminal, misconduct of others. In general, these situations arise where ․ the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account.” Id., § 302 B, comment (e), at p. 90, 662 A.2d 753. One situation in which the actor will be required to guard against the intentional misconduct of another is “[w]here the actor acts with knowledge of peculiar conditions which create a high degree of risk of [such] intentional misconduct.”26 Id., § 302 B, comment (e), example (H), at p. 93, 662 A.2d 753. “It is not possible to state definite rules as to when the actor is required to take precautions against intentional or criminal misconduct. As in other cases of negligence ․ it is a matter of balancing the magnitude of the risk against the utility of the actor's conduct. Factors to be considered are the known character, past conduct, and tendencies of the person whose intentional conduct causes the harm, the temptation or opportunity which the situation may afford him for such misconduct, the gravity of the harm which may result, and the possibility that some other person will assume the responsibility for preventing the conduct or the harm, together with the burden of the precautions which the actor would be required to take. Where the risk is relatively slight in comparison with the utility of the actor's conduct, he may be under no obligation to protect the other against it.” Id., § 302 B, comment (f), at p. 93, 662 A.2d 753.

Thus, for purposes of this exception, the issue is twofold: (1) whether the defendant's conduct gave rise to a foreseeable risk that the injured party would be harmed by the intentional misconduct of a third party; and (2) if so, whether, in light of that risk, the defendant failed to take appropriate precautions for the injured party's protection. As comment (f) to § 302 B of the Restatement (Second) of Torts makes clear, the issue necessarily is fact intensive, and its resolution will depend on the nature and gravity of the risk posed by the potential misconduct of the third party, with due regard, of course, for the vulnerability of the injured party.27 See id. In other words, whether the injured party in any given case can satisfy the requirements of § 302 B even though the defendant had no knowledge of the third party's criminal propensity will hinge on a careful consideration of all of the nonexclusive factors set forth in comment (f) to § 302 B in light of the facts of the particular case.

A second exception to the general rule that a defendant has no obligation to aid or protect another person arises when “a special relation exists between the actor and the other which gives to the other a right of protection.” Id., § 315(b), at p. 122, 662 A.2d 753.28 Certain custodial relationships fall within this exception, which provides the basis for count two of the plaintiff's complaint. Under this exception, one who takes custody of another person may have a duty to protect that person from the intentional misconduct of a third person.29 “One who ․ takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection ․ is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him․” Id., § 320, at p. 130, 662 A.2d 753.30 In such cases, however, there is no duty to control the conduct of the third party unless, in light of the facts, the defendant “knows or should know of the necessity and opportunity for exercising such control.” Id., § 320(b), at p. 130, 662 A.2d 753. This is so because, in the absence of facts from which the defendant reasonably could anticipate the need to control the conduct of the third party, there would be no justification for holding the defendant responsible for failing to take steps to prevent any harm inflicted on the plaintiff by the third party. Moreover, whether a duty of protection would extend to criminal misconduct by a third party in any given case will depend on whether, under all of the circumstances, the defendant had a sufficient basis for anticipating such criminal misconduct.31

An Appellate Court case, Gutierrez v. Thorne, 13 Conn.App. 493,537A.2d527(1988), aptly demonstrates how the criminal misconduct of a third party may be a foreseeable consequence of the manner in which the defendant conducts its activities, such that the defendant may be found civilly liable for the harm resulting from the third party's crime. In that case, the plaintiff, Stella Gutierrez, brought an action against the commissioner of mental retardation (commissioner) for injuries that Gutierrez had sustained when she was sexually assaulted by Steven Jones, an employee of the department of mental retardation (department), who was hired only after the department determined that he had no criminal record and no charges pending against him. Id., at 497. Jones was assigned to supervise Gutierrez' living situation and, to that end, had been provided a key to her apartment by the department. See id. The trial court granted the commissioner's motion for summary judgment on the ground that no issue of material fact existed as to whether the commissioner owed a duty to Gutierrez because, as a matter of law, it was not reasonably foreseeable that Jones would sexually assault Gutierrez in her apartment. See id., at 498.

In reversing the trial court's judgment, Judge (now retired Justice) Borden, writing for a unanimous Appellate Court panel, explained that “the question of foreseeability [was] not such as would lead to only one conclusion; rather, under the circumstances of [the] case, the foreseeability of whether the [commissioner's] conduct in permitting Jones to have a key to [Gutierrez'] apartment would result in a sexual assault ․ [was] a question to be resolved by the trier of fact.” Id., at 501. Judge Borden identified the various facts and circumstances on which the court relied in reaching this conclusion. “[Gutierrez] is a woman whose mental functioning is slightly impaired. She is a client of the department ․ receiving the benefits of a state program to assist high-functioning mentally retarded persons in an independent living situation. The [department's] rules notwithstanding, the [commissioner], through department employees, permitted Jones, a male employee, to have complete, unfettered and unsupervised access to [Gutierrez'] apartment. [Gutierrez] was in a position [in which] it is unlikely that she could resist Jones' entry into her private apartment. This impaired ability to resist arose both from the unrestricted nature of the access granted to Jones by virtue of his possession of a key to [Gutierrez'] apartment, and from the particular vulnerability of [Gutierrez] due to the superior power accorded Jones in his relationship with [her] by virtue of their provider-client relationship, her mental impairment, and his ability to threaten a termination of her state [benefits]. Presented with these facts, the court [improperly granted the commissioner's motion for] summary judgment because the conclusion to be drawn from these facts as to whether it was reasonably foreseeable that [Gutierrez] would be sexually assaulted by the [commissioner's] employee is precisely the type of determination most appropriately left to the trier of fact.”32 Id., at 501–502.

Thus, the Appellate Court concluded that, under the circumstances, Jones' conduct, although criminal, gave rise to a jury question as to whether that conduct was foreseeable, even though the commissioner neither knew nor had reason to know that Jones had a propensity for sexual violence. See id. In other words, the fact that the commissioner reasonably could not have known that Jones was prone to commit crimes of sexual violence did not relieve the commissioner of liability for the harm that Jones inflicted on Gutierrez if a jury were to find that Jones' conduct nevertheless was foreseeable under all of the circumstances. We fully agree with both the reasoning and result in Gutierrez,33 the rationale of which has been applied by our trial courts in rejecting claims that a hospital cannot be found liable for its negligent supervision of an employee who assaults a patient unless the hospital knew or should have known of the employee's criminal propensities.34

Similarly, in the present case, whether it was reasonably foreseeable that the hospital's failure to supervise Reardon's growth study would result in the sexual abuse of the plaintiff, even though the hospital did not know or have reason to know of Reardon's pedophilia, presented a question of fact for the jury. As we indicated, the hospital has abandoned any claim that the jury reasonably could not have found that the plaintiff's injuries were a reasonably foreseeable consequence of the hospital's failure to supervise Reardon's activities. Indeed, on appeal, the hospital does not challenge the sufficiency of the evidence to support any of the jury's findings. That evidence established, among other facts, that, for years, parents were persuaded to have their children participate in the growth study based in large part on the good name and reputation that the hospital enjoyed in the community. The hospital, however, exercised no supervision whatsoever over the study, even though it knew or should have known that Reardon was touching, photographing and filming the genitalia of naked children in his office, sometimes for hours, without a chaperone present and without any legitimate medical or scientific reason for conducting such a study in the first place. Although the hospital's expert, Godar, a member of the hospital's research committee during the relevant time frame, testified that Reardon's study was not the type of research that required supervision, the jury reasonably could have rejected this testimony as self-serving, especially in light of (1) Shorr's testimony that the hospital was, in fact, required to supervise Reardon's research, (2) the hospital's 1967 institutional assurance, in which the hospital had pledged to closely monitor “investigations involving human subjects” in order to safeguard the safety and welfare of the subjects, and (3) the testimony of New, a pediatric endocrinologist, that (a) there was no justification for the study, insofar as it involved healthy children, at the time period in question, and (b) measuring and photographing the genitalia of children are sufficiently invasive as to require the presence of a parent, or at least the parent's waiver of such presence. On the basis of this evidence, the plaintiff sought to persuade the jury, and did persuade the jury, that there was a foreseeable risk that the children who had been volunteered to participate in the study—children who, unbeknownst to their parents, were required to strip naked so that Reardon could physically examine, photograph and film their genitalia—would be sexually exploited or abused in some manner, such that the hospital was required to take at least some precautions to protect this highly vulnerable group of subjects.35 Consequently, unless this evidence was insufficient as a matter of law to support a verdict for the plaintiff, an issue that, we reiterate, the hospital has elected not to pursue on appeal,36 the plaintiff was entitled to a jury determination of whether, under all of the circumstances, the hospital's complete failure to supervise Reardon's activities exposed the plaintiff to an undue risk of sexual exploitation even though the hospital was unaware of Reardon's criminal propensities.

It therefore would have been improper for the trial court to instruct the jury in accordance with the hospital's request to charge that “the plaintiff must prove that [the hospital] had either actual or constructive notice that ․ Reardon had a propensity to sexually abuse children before the plaintiff was abused by [him].”37 Such an instruction would have prevented the plaintiff from establishing the foreseeability of Reardon's sexual misconduct on the basis of the other evidence of foreseeability on which the plaintiff had asked the jury to rely, and on which the jury did rely in reaching its verdict for the plaintiff.38 Indeed, because the plaintiff's case was not predicated on proof that the hospital had actual or constructive knowledge of Reardon's pedophilia, the giving of the knowledge of propensity instruction sought by the hospital would have been akin to directing a verdict in the hospital's favor.39 As we explained, this would have been improper because, in the absence of any claim of evidentiary insufficiency, it was for the jury to decide whether the harm that befell the plaintiff was foreseeable even though Reardon had no known propensity for pedophilia.40 Accordingly, we reject the hospital's claim that the jury should have been instructed that it could find the hospital liable only if the plaintiff established that the hospital knew or should have known of Reardon's propensity to sexually abuse children.41

II

The hospital next claims that the trial court improperly failed to instruct the jury, pursuant to the hospital's request to charge, that the hospital's bylaws do not themselves establish the standard of care. The hospital further contends that the trial court's failure to instruct the jury in accordance with this principle was harmful because the plaintiff's expert, Shorr, repeatedly stated that the hospital's bylaws represented the standard of care, a point that the plaintiff's counsel emphasized forcefully during closing arguments.42

We disagree that the trial court was required to instruct the jury in accordance with the hospital's request. It is true that this court has stated that, “[a]lthough a violation of an employer's work rules can be viewed as evidence of negligence, such a violation does not establish the applicable duty of the hospital to its patients, since hospital rules, regulations and policies do not themselves establish the standard of care.” (Internal quotation marks omitted.) Petriello v. Kalman, 215 Conn. 377, 386, 576 A.2d 474 (1990). We have articulated this general principle, however, only in cases in which there was no expert testimony that the hospital's bylaws, rules or regulations did coincide with the legally applicable standard of care in the relevant community.43 See, e.g., id.; Van Steensburg v. Lawrence & Memorial Hospitals, 194 Conn. at 500, 505–506, 481 A.2d 750 (1984); cf. DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105,137, 998 A.2d 730 (2010). In the present case, by contrast, Shorr testified that the hospital's bylaws, which set forth certain requirements for the supervision of research studies, do represent the standard of care.44 This testimony was bolstered by other documents that the plaintiff submitted as to research protocols. When, as in the present case, the plaintiff adduces otherwise admissible expert testimony that the institution's bylaws do, in fact, reflect the standard of care, there simply is no need for the requested instruction.45 Although the hospital has cited to no case, and we are aware of none, in which a court in this or any other jurisdiction has mandated such an instruction, we acknowledge that the instruction might be appropriate, if warranted by the facts and circumstances of a particular case, to dispel any suggestion that the jury may rely on the bylaws as establishing the standard of care even in the absence of expert testimony to that effect. Cf. Buckley v. Lovallo, 2 Conn.App. 579, 583 n. 2, 481 A.2d 1286 (1984) (rejecting plaintiff's contention that she should have been allowed to introduce, inter alia, hospital's regulations to define applicable standard of care without supporting expert testimony). This, however, is not such a case.

Furthermore, the trial court provided the jury with a comprehensive instruction to guide its consideration of the testimony of the parties' expert witnesses.46 Consequently, the jury was properly informed that it could accept Shorr's testimony or reject it in favor of the contrary expert testimony proffered by the hospital. Apparently, the jury credited Shorr's testimony, as it was entitled to do. We conclude, therefore, that the trial court properly denied the hospital's request to charge.

III

Finally, we address the hospital's claim that the trial court improperly instructed the jury that, in determining whether a custodial relationship existed between the hospital and the plaintiff, it could consider whether Reardon, as an employee of the hospital, had custody of the plaintiff at any time while the plaintiff was in Reardon's office or at the hospital. The hospital also contends that the trial court improperly invited the jury to decide the custody issue on the basis of facts that were irrelevant to that issue. Specifically, the hospital asserts that the trial court improperly informed the jury that it could consider the plaintiff's tender age, the tendency of children to disregard dangerous conditions and the testimony of two nonparty witnesses, Roe and Hunt, in determining whether the plaintiff was in the hospital's custody during the relevant time periods. We find no merit in these contentions.

Certain additional facts and procedural history are necessary to our review of the hospital's claims. In its preliminary instructions to the jury, the trial court advised the jury that the present case was somewhat unusual because, “in addition to [testimony from] the plaintiff, you will hear testimony from witnesses who have been given pseudonyms. They will testify about incidents that occurred between themselves and ․ Reardon, who is now deceased․ Reardon is not a party to this case and is not on trial.

“But the testimony and evidence presented through these witnesses is solely for the purpose of your consideration of the issues of (1) whether the [hospital] was negligent in that it failed to monitor or supervise ․ Reardon's activities, and (2) whether [the hospital] owed and breached a special duty of care to [the plaintiff], who was a minor at the time ․ Reardon is alleged to have abused him.”

Subsequently, in its final instructions to the jury, the trial court charged the jury in relevant part: “The relation between a hospital and a child obligates the hospital to protect the child from harm, if you find that the hospital had custody of the child at the time that the harm occurred. To determine whether a custodial relationship existed, you must decide whether the plaintiff was deprived of his normal powers and/or opportunity of self-protection. This special duty is enhanced when the child is of tender years or otherwise incapable of managing his or her own affairs. Now, in determining whether this special relationship arose as alleged in count two [of the plaintiff's complaint], you should consider whether ․ Reardon, as an employee of the hospital, had custody of [the plaintiff] at any time while he was in his office or at the hospital.

“A duty to use [care] exists when a reasonable person knowing what the [hospital] ․ either knew or should have known at the time of the alleged conduct would foresee that harm of the same general nature as that which occurred here was likely to result from that conduct. If harm of the same general nature as that which occurred here was foreseeable, it does not matter ․ if the manner in which the harm ․ actually occurred was unusual, bizarre or unforeseeable.”

The hospital claims that the trial court improperly instructed the jury that, for purposes of determining whether the hospital voluntarily assumed custody of the plaintiff, it could consider whether Reardon, the hospital's employee, had custody of the plaintiff when the plaintiff was in Reardon's office or when the plaintiff was treated at the hospital for rheumatic fever. Notably, the hospital does not claim that the evidence was insufficient to support the jury's implicit finding that the plaintiff was in the hospital's custody on both occasions. Nor does the hospital dispute that a hospital necessarily exercises custody over patients through its employees. The hospital contends, rather, that the trial court's instruction “is impossible to square with the rule that an employee who commits a sexual assault at work does not act as his employer's agent or within the scope of his authority.” We understand the hospital's argument to be that Reardon's criminal conduct extinguished the custodial relationship between the hospital and the plaintiff.

Not surprisingly, the hospital has identified no case or scholarly commentary to support its contention that Reardon's criminal acts operated to alter the custodial status between the hospital and the plaintiff. This undoubtedly is because no such case or commentary exists. Indeed, one of the comments to § 314 A of the Restatement (Second) of Torts, which covers special relationships giving rise to a duty to aid or protect when an entity voluntarily takes custody of a child, notes that “[t]he duty to protect the [child] against unreasonable risk of harm extends to risks arising out of the [entity's] own conduct ․ [as well as] to risks arising ․ from the acts of third persons, whether they be innocent, negligent, intentional, or even criminal.” (Emphasis added.) 2 Restatement (Second), supra, § 314 A, comment (d), at p. 119, 481 A.2d 1286. In light of the foregoing principle, the hospital's claim that Reardon's crimes severed the custodial relationship between the hospital and the plaintiff is unavailing.

The hospital's other claims are equally unpersuasive. Indeed, it is axiomatic that the plaintiff's tender years at the time of the abuse is relevant to a determination of whether he was “deprive[d] ․ of his normal opportunities for protection”; id., § 314 A(4), at p. 118; when his mother left him alone with Reardon for hours at a time and when he was a patient at the hospital. See, e.g ., Murdock v. Croughwell, 268 Conn. 559, 572, 848 A.2d 363 (2004) (“this court consistently has taken the position that children outside the supervision of their parents require special protection”); see also 2 Restatement (Second), supra, § 314 A(4), at p. 118 (“[o]ne ․ who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a ․ duty to” protect him against unreasonable risk of physical harm). Furthermore, the testimony of Roe and Hunt also was relevant to this issue insofar as it buttressed the testimony of the plaintiff's mother regarding the length of time that the plaintiff was alone with Reardon and deprived of her supervision and protection. As we noted previously, the plaintiff's mother testified that the first time she brought the plaintiff to Reardon's office, he told her to return in two hours. Roe and Hunt testified to being left with Reardon for similarly extended periods of time when they participated in the growth study. Their testimony, therefore, was relevant to establish the extent to which Reardon exercised custody and control over the plaintiff and other minor subjects of the study, a fact that the hospital presumably would have known if it had exercised even a modicum of supervision over Reardon and his activities. The testimony also was relevant to the issue of whether the hospital voluntarily assumed custody of the plaintiff through the conduct of its employee, Reardon, when the plaintiff was left in Reardon's care for extended periods of time to participate in hospital sponsored research.

But even if the testimony of Roe and Hunt was not probative of these issues, the hospital has failed to identify any possible prejudice flowing from their testimony except to assert that it could have “confounded the jury or encouraged it to substitute irrelevant evidence of nonparties' abuse for the required proof that [the hospital] voluntarily assumed custodial responsibility for [the plaintiff].” Although, ordinarily, a court might exclude the kind of testimony that Roe and Hunt had given as unduly prejudicial, Reardon's sexual abuse of children over a long period of time was undisputed. Consequently, no prejudice could have flowed from Roe's and Hunt's testimony regarding their own experiences with Reardon because the hospital has not challenged the plaintiff's allegations concerning the nature or manner of Reardon's misconduct. To the contrary, counsel for the hospital argued to the jury that Reardon was a master manipulator and predator who sexually abused children right under the hospital's nose, albeit without the hospital's knowledge, for years. The hospital therefore cannot prevail on its claims pertaining to the issue of custody.

The judgment is affirmed.

In this opinion ROGERS, C.J., and NORCOTT, EVE–LEIGH and HARPER, Js., concurred.

* * *

In this appeal involving the sexual exploitation of the plaintiff, Tim Doe # 1, by the late George E. Reardon, a physician formerly employed by the defendant, Saint Francis Hospital and Medical Center (hospital), the majority rejects all three of the hospital's jury instruction claims. I agree with the majority's conclusion as to one of those claims, namely, that the trial court properly instructed the jury regarding the existence of a custodial relationship between the plaintiff and the hospital. I strongly disagree, however, with the majority's other conclusions that the trial court properly declined to give the hospital's requested instructions as to knowledge of propensity and use of the hospital's bylaws1 to establish the standard of care. In my view, both instructions were required by our law, and each instructional error was independently harmful, thus requiring reversal of the trial court's judgment.

With respect to the requested propensity instruction, the plaintiff, the hospital and the trial court all viewed count one of the plaintiff's complaint as a negligent supervision claim in which a key component of the plaintiff's proof would be whether the hospital knew or should have known of Reardon's propensity to sexually abuse children. When it came time to give the jury instructions, however, the court failed to give a charge on actual or constructive notice, despite requests to do so from the plaintiff and the hospital. The court instead gave a charge consistent with the Connecticut Model Civil Jury Instructions on general negligence. For this reason alone, the judgment should be reversed.

On appeal, in order to counter the hospital's claim that the jury charge was improper, the plaintiff argues for the first time that count one was a general negligence claim2 for which no charge on notice was necessary and, therefore, the charge given was correct. The majority agrees with the plaintiff's position on appeal that count one was a general negligence claim. The majority is thus faced with a dilemma. Ordinarily, the criminal acts of a third person are deemed unforeseeable as a matter of public policy. There is an exception to this rule, however, in § 302 B of the Restatement (Second) of Torts, that permits a finding of negligence for a third party's criminal acts. Even though the plaintiff neither sought a charge under that section, nor tried the case under that section, nor raised that section on appeal, the majority latches onto it to uphold the jury verdict and concludes that the jury was entitled to determine whether the hospital was liable under § 302 B. Nevertheless, the verdict should be reversed under that theory as well because the trial court did not instruct the jury under § 302 B and the charge was thus insufficient as a matter of law.

With respect to the second instructional issue, the majority concludes that the trial court was not required to give a jury charge that the hospital's bylaws did not establish the legally applicable standard of care in the relevant community because the plaintiff's expert witness testified that the bylaws coincided with that standard. A reading of the transcript, however, shows that this was not the case. The expert witness repeatedly described the hospital's bylaws as the “rules of the road” or the “standard of care” established by the hospital for governing its daily operations and business. He did not state that the hospital's bylaws coincided with or were consistent with the legally applicable standard of care in the relevant community, nor did he connect the bylaws, by implication or otherwise, with that standard. Accordingly, I respectfully dissent from the majority opinion and would remand the case for a new trial.

I

PROPENSITY INSTRUCTIONAImproper Characterization of the Record

I first disagree with the majority's characterization of the plaintiff's corporate negligence claim as predicated on principles of general negligence, which provides the foundation for its subsequent analysis and conclusion that there was no need for a propensity instruction in connection with that claim. See footnotes 29 and 37 of the majority opinion. Contrary to the conclusion of the majority, count one of the plaintiff's complaint sets forth a classic negligent supervision claim, which requires a plaintiff to plead and prove that he “suffered an injury due to the defendant's failure to supervise an employee whom the defendant had a duty to supervise.” Roberts v. Circuit–Wise, Inc., 142 F.Supp.2d 211, 214 (D.Conn.2001). The complaint specifically alleges that Reardon was employed by the hospital and that the hospital breached its duty in that it “failed to properly monitor and supervise Reardon” and “allowed Reardon to conduct a purported growth study ․ without ․ monitoring him in any way․”

The trial court also characterized count one as a negligent supervision claim in its June 2, 2011 memorandum of decision on the hospital's motion for summary judgment, in which it stated that the plaintiff's two negligence claims “sound in negligent supervision, monitoring and retention of Reardon and breach of a special duty to protect [the plaintiff]”; (emphasis added); and that the claims were “based upon the underlying allegations of the sexual abuse of a minor ․ by Reardon as [the hospital's] employee.” Thereafter, the court repeatedly characterized count one as alleging negligent supervision, including in its instructions to the jury, when it stated that the issue in count one was whether the hospital “was ․ negligent in its supervision of [Reardon] in that it failed to monitor or supervise ․ Reardon's activities,” that, “[i]n the first count, the plaintiff contends that [the hospital] was negligent in that ․ [t]he hospital failed to properly monitor and supervise [Reardon],” and that, “[i]f you find that [the hospital] was negligent in either its supervision of ․ Reardon or relative to a special duty it owed to the plaintiff as a child, you must next decide if such negligence was a legal cause of any of the plaintiff's claimed injuries.” (Emphasis added.)

Furthermore, the plaintiff himself proposed an instruction in his June 10, 2011 preliminary request to charge, stating that, “[i]f you find that [the] hospital failed to reasonably supervise ․ Reardon and failed to reasonably inspect and oversee his activities, then it is liable for all harms proximately caused by the failure to supervise or inspect.” (Emphasis added.) The plaintiff similarly argued in his July 11, 2011 objection to the hospital's motion for a directed verdict following the conclusion of the evidence: “The central issue is whether the hospital, in its capacity as employer, premises owner and research institution, failed to supervise and monitor ․ Reardon's interactions with the minor plaintiff in the course of a ‘growth study’ funded by the hospital.” (Emphasis added.) Likewise, in his August 2, 2011 memorandum of law in opposition to the hospital's postverdict motions, the plaintiff emphatically stated: “This case is not as complicated as [the hospital] wants it to be. To the contrary, it is this simple: [the] hospital failed completely to provide supervision over an employee whom it knew was taking photographs of the genitalia of many naked children in an isolated location, over numerous years, without parents present. The hospital funded and supported ․ Reardon's ‘growth study’ but provided no supervision whatsoever.” (Emphasis altered.)

The hospital also characterized count one as sounding in negligent supervision, including in its June 10, 2011 request to charge and in its proposed interrogatories and special verdict form dated June 13, 2011. The foregoing representations were made either immediately before the trial or after the trial took place in June and July of 2011. Finally, in repeatedly acknowledging that notice of Reardon's propensity to sexually abuse children was a central issue in the case, including at the hearing on the hospital's motion to sever,3 the plaintiff, the hospital and the trial court indicated their understanding that count one of the plaintiff's complaint alleged negligent supervision, not general negligence.4 Indeed, the majority itself characterizes count one as alleging negligent supervision when it declares that “the plaintiff was entitled to a jury determination of whether, under all of the circumstances, the hospital's complete failure to supervise Reardon's activities exposed the plaintiff to an undue risk of sexual exploitation even though the hospital was unaware of Reardon's criminal propensities.” (Emphasis altered.) To the extent the majority disregards this essential fact in the remainder of its analysis and agrees with the plaintiff's appellate brief,5 which is completely at odds with the allegations in his complaint and his repeated description of count one throughout the trial proceedings, the majority's reasoning as to whether a propensity instruction was required unjustly allows the plaintiff to change, for purposes of this appeal, the theory under which he litigated that claim. It also enables the majority to review the trial court's instructions under a different standard than the standard required for review of a negligent supervision claim. The majority's mischaracterization of the record thus has significant consequences for the outcome of this appeal because, as discussed in the analysis that follows, the instructions required to guide the jury to a proper decision under the two different standards are not the same.6

B

Propensity Instruction Analysis

Having concluded that count one of the plaintiff's complaint does not sound in general negligence, I submit that a proper analysis must recognize that both counts of the plaintiff's complaint rely on the existence of a special relationship in alleging that the hospital owed a duty to the plaintiff. Count one, alleging negligent supervision, relies on the employment relationship between the hospital and Reardon. Count two, alleging a special duty of care, relies on the custodial relationship between the hospital and the plaintiff. In certain circumstances, each of these special relationships gives rise to a duty of care. The hospital argues that the law imposes no duty to protect a person from the criminal acts of a third party unless a defendant had actual or constructive knowledge of the third party's criminal propensity to engage in the misconduct at issue. The plaintiff responds that a general foreseeability standard determines the existence of a duty in Connecticut and that the foreseeability instructions that the trial court gave to the jury were legally sufficient. I agree with the hospital that the court improperly declined to instruct the jury that the plaintiff bore the burden of proving that the hospital had actual or constructive knowledge of Reardon's propensity to sexually abuse children before Reardon abused the plaintiff.

I begin with the applicable standard of review and the governing legal principles. “When reviewing [a] challenged jury instruction ․ we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts․ [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law․ As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ․ we will not view the instructions as improper.” (Internal quotation marks omitted.) Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 42, 946 A.2d 839 (2008).

The existence of a duty is also a question of law. E.g., Murdock v. Croughwell, 268 Conn. 559, 565, 848 A.2d 363 (2004). “The essential elements of a cause of action in negligence are ․ duty; breach of that duty; causation; and actual injury․ Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action․ Thus, [t]here can be no actionable negligence ․ unless there exists a cognizable duty of care․ [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case․

“With respect to the second inquiry, namely, the policy analysis, there generally is no duty that obligates one party to aid or to protect another party. See 2 Restatement (Second), Torts § 314, p. 116 (1965). One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another. See [W. Keeton et al., Prosser and Keeton on the Law of Torts] (5th Ed.1984) § 56, pp. 373–74; see also 2 Restatement (Second), supra, §§ [314 A and 315, at pp. 118, 122, 848 A.2d 363]․ In delineating more precisely the parameters of this limited exception to the general rule, this court has concluded that, [in the absence of] a special relationship of custody or control, there is no duty to protect a third person from the conduct of another.” (Emphasis altered; internal quotation marks omitted.) Murdock v. Croughwell, supra, 268 Conn. at 566, 848 A.2d 363.

Section 315 of the Restatement (Second), which describes in general terms the limited duty of an actor to control the conduct of third persons, is also instructive. It specifically provides: “There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.” 2 Restatement (Second), supra, § 315, at p. 122, 848 A.2d 363. Section 315 thus identifies two types of relationships that constitute an exception to the general rule that there is no duty to control the conduct of a third person: either the relationship between the defendant and the third person is one that requires the defendant to exercise control over that person, or the relationship between the defendant and the plaintiff is one that requires the defendant to protect the plaintiff from the third person's conduct. The importance of this section is twofold. First, in both instances, the plaintiff bears the burden of proving the existence of the special relationship. Second, and more generally, each of these special relationships gives rise to an exception to the general rule that there is no duty to control the conduct of a third person or to protect others from a third person's conduct. Accordingly, the exception must be construed narrowly.

Pursuant to the foregoing principle, this court has held that the mere existence of a special relationship is not sufficient to give rise to a duty to control the conduct of a third person or to protect others from a third person's conduct. For a defendant to be held liable for failing to control or provide protection against such conduct, the conduct must have been foreseeable. As we stated in Fraser v. United States, 236 Conn. 625, 674 A.2d 811(1996), “[i]n any determination of whether even a special relationship should be held to give rise to a duty to exercise care to avoid harm to a third person, foreseeability plays an important role. 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․ Although ․ no universal test for [duty] ever has been formulated ․ our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant․ Thus, initially, if it is not foreseeable to a reasonable person in the defendant's position that harm of the type alleged would result from the defendant's actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff.” (Internal quotation marks omitted.) Id., at 632–33, 674 A.2d 811.

In cases involving special relationships, however, proof of foreseeability requires more than the ability to foresee harm of the same general nature as the type alleged. Section 317 of the Restatement (Second) provides that a master's duty to control a servant to prevent the servant from intentionally harming others exists only if “(a) the servant (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control.” (Emphasis added.) 2 Restatement (Second), supra, § 317, at p. 125, 674 A.2d 811. Similarly, § 320 of the Restatement (Second) provides that a person has a duty to prevent third persons from harming another in the person's custody if he “(a) knows or has reason to know that he has the ability to control the conduct of the third persons, and (b) knows or should know of the necessity and opportunity for exercising such control.” (Emphasis added.) Id., § 320, at p. 130, 674 A.2d 811.

With these principles in mind, I first consider whether, under count one of the complaint alleging negligent supervision, the hospital owed a duty to the plaintiff only if it had knowledge of Reardon's propensity to sexually abuse children. I then consider whether, under count two of the complaint alleging breach of a special duty of care, the hospital owed a duty to the plaintiff in the same limited circumstance. I finally consider whether the trial court improperly declined to give the requested propensity instruction under the facts of this case and, if so, whether its failure to do so constituted harmful error.

1

Negligent Supervision

To the extent the plaintiff alleges negligent supervision, this court has not yet determined whether the duty an employer owes to a person under the employer's control is conditioned on knowledge of the wrongdoer's propensity to engage in the alleged misconduct.7 It also has not determined what a plaintiff must prove in order to demonstrate that an employer knew or should have known of the necessity and opportunity for exercising control so as to prevent its employee from harming others. Although this court previously has not decided whether a plaintiff bears the burden of proving that an employer had either actual or constructive knowledge of an employee's propensity to engage in the type of conduct that resulted in the plaintiff's harm, such a rule is strongly supported by § 317 of the Restatement (Second).

As previously discussed, § 317 provides that a master has a duty to control the conduct of a servant so “as to prevent him from intentionally harming others” if he “knows or has reason to know that he has the ability to control his servant” and “knows or should know of the necessity and opportunity for exercising such control.” Id., § 317(b), at p. 125, 674 A.2d 811. Comment (c) to § 317, entitled, “Retention in employment of servants known to misconduct themselves,” further explains with respect to the meaning of “knowledge”: “[T]he master may subject himself to liability under the rule stated in this [s]ection by retaining in his employment servants who, to his knowledge, are in the habit of misconducting themselves in a manner dangerous to others ․ Thus a railroad company which knows that the crews of its coal trains are in the habit of throwing coal from the cars as they pass along tracks laid through a city street, to the danger of travelers, is subject to liability if it retains the delinquents in its employment, although it has promulgated rules strictly forbidding such practices.” (Emphasis added.) Id., comment (c), at p. 126, 674 A.2d 811. Consequently, § 317 clearly requires that the employer have actual or constructive knowledge of the “necessity” for exercising control over its employee in order to be held liable for the employee's intentional or criminal misconduct.8 This contrasts with claims alleging general negligence, which do not involve special relationships or the criminal acts of an employee but, rather, require only that the actor should have anticipated “harm of the [same] general nature” as that which occurred in order to establish that the defendant owed a duty to the plaintiff. Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).

Consistent with § 317, at least thirty-five other jurisdictions that have considered a claim of negligent supervision arising from an employee's intentional or criminal misconduct have required proof that the employer knew or should have known of the employee's propensity to engage in the type of misconduct at issue.9 See, e.g., Belmont v. MB Investment Partners, Inc., 708 F.3d 470, 491 (3d Cir.2013) (claim of negligent supervision under Pennsylvania law requires proof under § 317 that employer knew or should have known of employee's dangerous propensities such that he might cause harm to another); Doe v. New York, United States District Court, Docket No. 09–Civ. 9895(SAS) (S.D.N.Y. March 4, 2013) (claim of negligent supervision under New York law requires proof that employer knew or should have known of employee's propensity to engage in conduct that caused injury to another); Spicer v. District of Columbia, United States District Court, Docket No. 10–1576(BJR) (D.D.C. January 2, 2013) (claim of negligent supervision under District of Columbia law requires evidence that employer knew or should have known that employee behaved in dangerous or otherwise incompetent manner and that employer, armed with actual or constructive knowledge, failed to adequately supervise employee); Finley v. Kondaur Capital Corp., United States District Court, Docket No. 12–02197–WGY (W.D.Tenn. December 19, 2012) (claim of negligent supervision under Tennessee law requires evidence that employer had knowledge of employee's unfitness for job); Petersen v. Stanislaus, United States District Court, Docket No. 1:12–cv–00933–AWI–BAM (E.D.Cal. October 12, 2012) (claim of negligent supervision under California law requires evidence that employer knew or in exercise of reasonable care should have known that employee was unfit and posed particular risk or hazard to plaintiff of kind that subsequently materialized); Svacek v. Shelley, 359 P.2d 127, 131–32 (Alaska 1961) (claim of negligent supervision under Alaska law requires proof of elements in § 317, including that employer knew or should have known of employee's dangerous propensities); Saine v. Comcast Cablevision of Arkansas, Inc., 354 Ark. 492, 497–500, 126 S.W.3d 339 (2003) (claim of negligent supervision under Arkansas law submitted to jury for determination of whether employer was on notice that appreciable risk of harm to third parties could be caused by negligent supervision or retention of employee); Keller v. Koca, 111 P.3d 445, 448–49 (Colo.2005) (claim of negligent supervision under Colorado law predicated in part on employer's antecedent ability to recognize potential employee's attributes of character or prior conduct that would create undue risk of harm to those with whom employee came in contact in executing employment responsibilities); Matthews v. Booth, Delaware Superior Court, Docket No. 04C–09–219–MJB (Del.Super. May 22, 2008) (claim of negligent supervision under Delaware law requires actual or constructive knowledge of employee's propensity to engage in type of harm alleged); Malicki v. Doe, 814 So.2d 347, 361–62 (Fla.2002) (claim of negligent supervision under Florida law requires evidence under § 317 that employer knowingly employed person that it knew or should have known was dangerous and liable to do harm to others); Novare Group, Inc. v. Sarif, 290 Ga. 186, 190–91, 718 S.E.2d 304 (2011) (claim of negligent supervision under Georgia law requires evidence sufficient to establish that employer reasonably knew or should have known of employee's tendencies to engage in behavior relevant to injuries allegedly incurred by plaintiff); Wong–Leong v. Hawaiian Independent Refinery, Inc., 76 Hawai‘i 433, 444–45, 879 P.2d 538 (1994) (claim of negligent supervision under Hawaii law requires evidence under § 317 demonstrating employer's actual or constructive knowledge of necessity and opportunity for exercising control, such as awareness of employee's propensity for misconduct or some reasonable basis for knowing that employee is engaging in, or might engage in, misconduct); Rausch v. Pocatello Lumber Co., 135 Idaho 80, 86, 14 P.3d 1074 (App.2000) (claim of negligent supervision under Idaho law requires proof under § 317 that employer knew of employee's dangerous propensities and need to control employee to prevent injury to others); Hills v. Bridgeview Little League Assn., 195 Ill.2d 210, 233–38 and n. 3, 253 Ill.Dec. 632, 745 N.E.2d 1166 (2000) (claim of negligent supervision under Illinois law requires proof of elements of § 317, including that employer was aware of dangerous propensities that required it to control employee because serious crimes are generally unforeseeable); Sandage v. Board of Commissioners, 897 N.E.2d 507, 511–14 (Ind.App.2008) (claim of negligent hiring and retention under Indiana law requires proof of elements of § 317, including that employer had notice of employee's propensity to engage in alleged misconduct); Estate of Harris v. Papa John's Pizza, 679 N.W.2d 673, 680 (Iowa 2004) (claim of negligent supervision under Iowa law requires proof that employer knew or in exercise of ordinary care should have known of employee's unfitness at time employee engaged in misconduct); Kansas State Bank & Trust Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 362, 819 P.2d 587 (1991) (claim of negligent supervision under Kansas law requires evidence that employer had reason to believe that undue risk of harm to others would exist as result of quality of employee that employer had reason to believe would be likely to cause harm); Dragomir v. Spring Harbor Hospital, 970 A .2d 310,317 (Me.2009) (claim of negligent supervision under Maine law requires proof of elements under § 317, including that employer had actual or constructive knowledge of employee's violent propensities); Hersh v. Kentfield Builders, Inc., 385 Mich. 410, 412, 189 N.W.2d 286 (1971) (claim of negligent supervision under Michigan law requires evidence that employer knew or should have known of employee's propensities before commission of wrongful conduct); Oslin v. State, 543 N.W.2d 408, 415 (Minn.App.1996) (claim of negligent supervision under Minnesota law requires evidence that employer knew or should have known of employee's propensities for type of wrongful conduct alleged), review denied, Minnesota Supreme Court, Docket Nos. C1–95–1579 and C8–95–1580 (Minn. April 1, 1996); Jones v. Alden Mills, 150 Miss. 90, 104–105, 116 So. 438 (1928) (claim of negligent supervision under Mississippi law requires knowledge of employee's violent disposition); Dibrill v. Normandy Associates, Inc., 383 S.W.3d 77, 87 (Mo.App.2012) (claim of negligent supervision under Missouri law requires proof of elements in § 317, including that employer had reason to know of necessity and opportunity for exercising control over employee based on evidence of foreseeability that employee would create unreasonable risk of harm outside scope of employment); Farr v. Cambridge Co–Operative Oil Co., 164 Neb. 45, 47, 49–53, 81 N.W.2d 597 (1957) (claim of negligent supervision under Nebraska law requires proof of elements of § 317 of First Restatement, including knowledge and notice of employee's potentially dangerous conduct); Medlin v. Bass, 327 N.C. 587, 590–91, 398 S.E.2d 460 (1990) (employer deemed liable for negligent employment under North Carolina law if employer had either actual or constructive knowledge of employee's “unfitness or bad habits” with constructive knowledge proven by demonstrating that employer could have known facts had he used ordinary care in oversight and supervision); Richard v. Washburn Public Schools, 809 N.W.2d 288,297 (N.D.2011) (claim of negligent supervision under North Dakota law requires proof that master employed servants who, to master's knowledge, are in habit of misconducting themselves in manner dangerous to others); Clinton v. Faurecia Exhaust Systems, Inc., Ohio Court of Appeals, Docket No. 2012–CA–1 (Ohio App. October 5, 2012) (claim of negligent supervision under Ohio law requires evidence of employment relationship, employee's incompetence, employer's actual or constructive knowledge of such incompetence, employee's act or omission causing plaintiff's injuries, and employer's negligence in hiring or retaining employee as proximate cause of plaintiff's injuries); N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla.1999) (claim of negligent supervision under Oklahoma law requires that employer have knowledge of employee's propensity to commit conduct that led to plaintiff's injury); Broadley v. State, 939 A.2d 1016, 1022 (R.I.2008) (claim of negligent supervision under Rhode Island law dismissed in part because plaintiffs failed to prove that employee at facility for disabled persons was known to exhibit aggressive behavior toward patients); Degenhart v. Knights of Columbus, 309 S.C. 114, 116–17, 420 S.E.2d 495 (1992) (claim of negligent supervision insufficient under South Carolina law and § 317 because evidence failed to demonstrate that employer had notice of employee's improper outside activities and, therefore, knew or should have known that it should exercise control over employee); Kelsey–Seybold Clinic v. Maclay, 466 S.W.2d 716, 720 (Tex.1971) (claim of negligent supervision under Texas law and § 317 deemed viable because employer received specific information from which it knew or should have known of need to exercise control over employee and thus was under duty to use reasonable means to prevent employee from harming others); Jackson v. Righter, 891 P.2d 1387,1392 (Utah 1995) (claim of negligent supervision under Utah law and § 317 requires proof that employer reasonably could have been expected to appreciate threat to plaintiff of employee's actions and to act to minimize or protect against threat); Bradley v. H.A. Manosh Corp., 157 Vt. 477, 480–82, 601 A.2d 978 (1991) (claim of negligent supervision deemed sufficient under Vermont law and § 317 because evidence demonstrated that employer had knowledge of employee's predisposition to careless behavior); Niece v. Elmview Group Home, 131 Wash.2d 39, 51–52, 929 P.2d 420 (1997) (claim of negligent supervision under Washington law and § 317 requires showing of knowledge of dangerous tendencies of particular employee); L.L.N. v. Clauder, 209 Wis.2d 674,699–700,563 N.W.2d 434 (1997) (claim of negligent supervision under Wisconsin law deemed inadequate in absence of allegations of actual or constructive knowledge of criminal propensities); Shafer v. TNT Well Service, Inc., 285 P.3d 958, 962, 964–67 (Wyo.2012) (claim of negligent supervision under Wyoming law requires proof, in accordance with § 317, that employer knew, or had reason to know, of necessity and opportunity to exercise control over employee).

In keeping with § 317 of the Restatement (Second) and the principles followed by the overwhelming majority of other jurisdictions in addressing claims of negligent supervision, Connecticut trial courts have concluded that, in order to hold an employer liable for an employee's sexual misconduct, the employer must have had actual or constructive knowledge of the employee's propensity to engage in such misconduct. For example, in See v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Fairfield, Docket No. CV–93–0300948–S (July 31, 1997) (20 Conn. L. Rptr. 271), in which the plaintiffs alleged that they had been sexually assaulted by a priest who worked in the defendants' diocese, the trial court denied in part the defendants' motion for summary judgment on the ground that certain affidavits produced by the plaintiffs raised a genuine issue of material fact as to whether the defendants knew or should have known of the priest's “sexual proclivities․” Id., at 276. During the course of its discussion, the court first recognized as a matter of established Connecticut law that the defendants “did not owe a duty of care to the plaintiffs to protect them from [the priest's] actions unless the defendants knew or had reason to know that [the priest] had the propensity to engage in sexual misconduct.” Id., at 275. The court reasoned that a mere showing that the defendants had been aware that the priest had psychological problems or that two prior complaints, unrelated to sexual misconduct, had been filed against him would be insufficient. See id. Rather, in order to satisfy their burden, the plaintiffs would be required to demonstrate that the defendants knew or should have known of the priest's predisposition to sexual misconduct. Id.

In Beach v. Jean, 46 Conn.Supp. 252, 261–65, 746 A.2d 228 (1999), the trial court applied the same rule to grant the defendants' motion for summary judgment with respect to the plaintiff's claim that the defendants owed a duty to protect the plaintiff against sexual abuse by a priest in the defendants' diocese. The court concluded that the plaintiff had failed to raise a genuine issue of material fact as to whether the defendants knew of the priest's propensity to engage in sexual misconduct. Id., at 264, 746 A.2d 228. Although the materials produced by the plaintiff in opposing summary judgment raised a question of fact regarding whether the defendants regularly visited the priest's church or required him to report on matters at his church, the court concluded that the failure to supervise, without any evidence that the defendants should have known of the priest's propensity for sexual misconduct, was insufficient to satisfy the plaintiff's burden of proving that the conduct was foreseeable. See id., at 262–64, 746 A.2d 228.

Federal courts and other Connecticut trial courts applying Connecticut law have also applied this rule in cases involving sexual misconduct. See, e.g., Miller v. Ethan Allen Global, Inc., United States District Court, Docket No. 3:10–CV–1701 (JCH) (D.Conn. August 23, 2011) (granting motion to dismiss negligent supervision claim because plaintiff alleged no facts from which to infer that defendant was or should have been aware of employee's propensity to engage in alleged misconduct); Favale v. Roman Catholic Diocese of Bridgeport, 233 F.R.D. 243, 246–47 (D.Conn.2005) (denying plaintiff's motion to compel defendant's employee to testify regarding alleged anger management history and psychological conditions because only defendant's knowledge of employee's propensity to engage in misconduct of same type as alleged by plaintiff was relevant to existence of duty); Burford v. McDonald's Corp., 321 F.Supp.2d 358, 364–65 n. 4 (D.Conn.2004) (denying defendants' motion for summary judgment on negligent supervision claim and stating that, “[a]t trial, [the][p]laintiff will have to prove that she suffered injury as a result of alleged harassment that occurred after [the employer] was put on notice of [the employee's] propensity to engage in tortious conduct”); Abate v. Circuit–Wise, Inc., 130 F.Supp.2d 341, 344–46 (D.Conn.2001) (although court had “serious reservations” regarding whether plaintiff would be able to prove sufficient facts from which reasonable jury could conclude that defendant knew or should have known that coworker had propensity to engage in sexually harassing behavior, plaintiff had met pleading requirement by alleging defendant's knowledge that coworker might sexually harass persons such as plaintiff, and, therefore, court denied defendant's motion to dismiss negligent supervision count); Shanks v. Walker, 116 F.Supp.2d 311, 314–15 (D.Conn.2000) (plaintiff's allegations sufficient to state claim for negligent supervision when plaintiff cited to events that could have informed employer of employee's propensity for violence); Barnett v. Woods, Superior Court, judicial district of Fairfield, Docket No. CV 00–0371822 (July 31, 2000) (27 Conn. L. Rptr. 596, 597) (under Connecticut law, defendant does not owe plaintiff duty to protect her from another employee's actions unless defendant knows or has reason to know that employee has propensity to engage in tortious conduct); Karanda v. Pratt & Whitney Aircraft, United Technologies Corp., Superior Court, judicial district of Hartford, Docket No. CV 98–582025–S (May 10, 1999) (24 Conn. L. Rptr. 521, 527) (same).

Many of our sister states similarly require a plaintiff to prove that an employer knew or should have known of an employee's propensity to engage in sexual misconduct in order to establish that the employer had a duty to control the employee's conduct. Indeed, my research has not revealed a single case, in any jurisdiction, that has rejected this standard in cases involving allegations of sexual abuse by an employee. See, e.g., Doe v. Hartz, 52 F.Supp.2d 1027,1073–74 (N.D.Iowa 1999) (applying Iowa law, which requires plaintiff to prove both special relationship and that defendant knew or should have known of third party's mental disease or defect or propensity to engage in inappropriate conduct in order to establish duty to control third party's conduct); Mark K. v. Roman Catholic Archbishop of Los Angeles, 67 Cal.App.4th 603, 611–12, 79 Cal.Rptr.2d 73 (1998) (existence of duty depends on whether employer knew or should have known of employee's propensity to engage in misconduct), review denied, California Supreme Court, Docket No. S074684 (Cal. January 27, 1999); Iglesia Cristiana La Casa Del Senor, Inc. v. L.M., 783 So.2d 353, 359 (Fla.App.2001) (reversing judgment of trial court in favor of plaintiff because, inter alia, plaintiff had not adduced sufficient evidence to support conclusion that defendant church should have anticipated that seemingly normal and nonviolent pastor would abuse position as pastor to rape minor victim); Alpharetta First United Methodist Church v. Stewart, 221 Ga.App. 748, 753, 472 S.E.2d 532 (1996) (reversing trial court's denial of defendants' motion for summary judgment, holding, inter alia, that plaintiff failed to adduce evidence that defendants should have known of employee's propensity for type of sexual misconduct alleged by plaintiff); Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 App. Div.2d 159, 161, 654 N.Y.S.2d 791 (“necessary element” of cause of action for negligent supervision is that employer knew or should have known of employee's propensity for conduct that caused injury), cert. denied, 522 U.S. 967, 118 S.Ct. 413, 139 L.Ed.2d 316 (1997); Medlin v. Bass, supra, 327 N.C. at 591, 398 S.E.2d 460 (employer liable for negligent employment if employer had either actual or constructive knowledge of employee's “unfitness or bad habits,” with constructive knowledge proven by showing that employer could have known facts had he used ordinary care in oversight and supervision); Steppe v. Kmart Stores, 136 Ohio App.3d 454, 466, 737 N.E.2d 58 (1999) (employer liable for negligent supervision if it had actual or constructive knowledge of employee's propensity for type of misconduct alleged), appeal denied, 88 Ohio St.3d 1448, 725 N.E.2d 287 (2000); N.H. v. Presbyterian Church (U.S.A.), supra, 998 P.2d at 600 (employer liable for employee's misconduct on basis of negligent supervision theory if employer had prior knowledge of employee's propensity to commit very harm for which damages are sought); Hutchison ex rel. Hutchison v. Luddy, 560 Pa. 51, 64–65, 742 A.2d 1052 (1999) (employer liable under negligent supervision theory if employer knew or should have known of employee's propensity to engage in misconduct); L.L.N. v. Clauder, supra, 209 Wis.2d at 699, 563 N.W.2d 434 (employer liable for negligent supervision “only if it knew or should have known of employee's propensity to subject third party to unreasonable risk of harm).10

Limiting an employer's duty to control the misconduct of its employees to instances in which it has actual or constructive knowledge of the employee's propensity to engage in the type of misconduct at issue is consistent with basic public policy principles that long have dictated limiting the scope of third party liability. Put simply, when the misconduct is not the employer's own, its ability to foresee and prevent harm resulting from that conduct is much more limited than when the employer is the primary actor. When, as in the present case, the misconduct at issue is not only intentional but criminal, the ability to anticipate the misconduct and to prevent any harm that may result therefrom becomes even more difficult. No employer hires an employee with the expectation that the employee will engage in criminal conduct, and an employer should not be required to anticipate conduct of this kind. The lack of such an expectation accords with the well established principle that, “[u]nder all ordinary and normal circumstances, in the absence of any reason to expect the contrary, [an] actor may reasonably proceed upon the assumption that others will obey the criminal law.” W. Keeton et al., supra, § 33, at p. 201, 563 N.W.2d 434. The difficulty of reasonably foreseeing the misconduct of a third person justifies a more specific and stringent inquiry than that which is characteristic of a general foreseeability analysis. Accordingly, as our own lower courts and many other jurisdictions have routinely recognized, I would conclude in cases involving criminal misconduct that, as a condition to the existence of a duty, it is appropriate to inquire whether the defendant knew or should have known of the third person's propensity to engage in the type of misconduct at issue. See 2 Restatement (Second), supra, § 317(b)(ii), at p. 125, 563 N.W.2d 434 (master is under duty to exercise reasonable care to control servant while servant is acting outside scope of employment to prevent servant from intentionally harming others or from conducting himself so as to create unreasonable risk of bodily harm to others if master “knows or should know of the necessity and opportunity for exercising such control” [emphasis added] ). Such a rule properly limits a defendant's liability to instances in which it knows or should know of the employee's propensity, yet has failed to act. Any other rule would not limit a defendant's liability to the reasonably foreseeable misconduct of a third person.11

2

Special Duty of Care

Insofar as the plaintiff alleges the breach of a special duty of care, fewer courts have considered whether the duty one owes to a person in one's custody should be conditioned on knowledge of the propensity of the wrongdoer to engage in the misconduct at issue. In Saunders v. State, 446 A.2d 748, 751 (R.I.1982), however, the court persuasively reasoned that it should. On a certified question from the United States District Court for the District of Rhode Island; id., at 749; the Supreme Court of Rhode Island held that prison officials and employees owe a duty to protect a prisoner in custody from violent attacks by other inmates only if prison personnel knew or had reason to anticipate that the inmate who committed the attack had dangerous propensities and was likely to be violent. Id., at 751. In its analysis of the issue, the court observed that “the prior-notice rule is, in effect, merely a more specific application of the general rule of foreseeability.” Id. The more specific application was required, the court concluded, because it effected the proper balance between the goals of affording reasonable protections to prisoners and avoiding the imposition of unreasonable burdens on prison officials. See id. In doing so, the court recognized that extending liability under the exception requires a careful balancing of public policy principles. See id.

Requiring knowledge of propensity for claims based on a custodial relationship between the parties is consistent with the principles articulated in § 320 of the Restatement (Second), which provides that an actor has a duty to prevent third persons from harming another in the actor's custody if he “knows or has reason to know that he has the ability to control the conduct of the third persons” and “knows or should know of the necessity and opportunity for exercising such control.” 2 Restatement (Second), supra, § 320, at p. 130. In explaining the considerations involved in determining duty under this provision, comment (c) to § 320 provides that “[t]he custody of another may be taken under such circumstances as to associate the other with persons who are peculiarly likely to do him harm from which he cannot be expected to protect himself. If so, the actor who has taken custody of the other is required to exercise reasonable care to furnish the necessary protection. This is particularly true where the custody not only involves intimate association with persons of notoriously dangerous character, but also deprives the person in custody of his normal ability to protect himself․” (Emphasis added.) Id., comment (c), at p. 131.

Comment (d), which discusses the duty to anticipate danger under § 320, contains several illustrations, all of which involve situations in which the actor with custodial responsibility had actual knowledge of the harm that might befall the person in his custody. See id., comment (d), at p. 131. Thus, “a schoolmaster who knows that a group of older boys are in the habit of bullying the younger pupils to an extent likely to do them actual harm, is not only required to interfere when he sees the bullying going on, but also to be reasonably vigilant in his supervision of his pupils so as to ascertain when such conduct is about to occur.” Id., at pp. 131–32.

Like a claim predicated on an employer's duty to control the conduct of its employees, a claim predicated on the duty to protect a person in one's custody from the criminal misconduct of a third person contemplates an exception to the general rule precluding liability in such cases. Thus, because the same difficulty of accurately foreseeing the misconduct of a third person exists when a custodial relationship gives rise to a duty to protect, the same limitation on liability should apply. Accordingly, the duty to protect a person in one's custody from the criminal conduct of third persons should be confined, consistent with § 320, to those instances in which the custodian has actual or constructive knowledge of the third person's propensity to engage in the misconduct at issue.12

3

Instructional Error Analysis

Applying the foregoing principles in the present case, I would conclude that there was instructional error and that the error was not harmless. The following additional facts are relevant to a resolution of this issue.

The parties and the court acknowledged on numerous occasions, outside the presence of the jury, that knowledge of Reardon's propensity to abuse children was a central issue in the case. For example, the plaintiff's counsel argued with respect to a motion to sever that the present case was distinguishable from another potentially relevant criminal case because “there was no issue of notice” in that case, whereas there would be “issues of notice” in the present case. The plaintiff also argued in a motion to preclude the testimony of an expert witness for the hospital, Anna Carol Salter, that, if the court allowed her to offer her opinion testimony, “[t]he court must ․ caution ․ Salter not to offer any opinions on the ‘ultimate’ issue of the [hospital's] ‘notice’ of ․ Reardon's molestation activities.” Thereafter, in a preliminary request to charge the jury, the plaintiff asked the court for an instruction that the hospital could be found liable “if it had [actual or constructive] notice of Reardon's activity and failed to act.” The proposed instruction continued: “The [hospital] had actual notice if it actually knew of the unsafe condition long enough before the plaintiff's injury to have taken steps to correct the condition or to take other suitable precautions․ The plaintiff may also prevail if you find that the [hospital] had constructive notice of Reardon's activity. That means that the [hospital], using reasonable care, should have known of the unsafe condition in time to have taken steps to correct the condition or to take other suitable precautions.” The instruction used the terms “unsafe condition” and “Reardon's activity” interchangeably, and further described Reardon's sexual abuse of children as the unsafe condition or activity in question.13

The trial court likewise recognized that knowledge of Reardon's propensity to abuse children was a central issue in the case. During arguments on the motion to sever, the court stated that “the issue is did [the hospital] know [of the abuse] or should [it] have known what was going on as to ․ [the plaintiff]․ [I]t's not the degree of the abuse that's an issue, it's the question of the knowledge of the [hospital] that any abuse by Reardon took place.” Similarly, during the voir dire examination of a witness at trial, the court excluded evidence of a complaint made to the Hartford County Medical Association concerning Reardon because there was no “reliable evidence ․ that the association notified the [hospital] or that the [hospital] had any knowledge” of the complaint, and, “without notice to the [hospital], it doesn't make it more likely that the [hospital] would have foreseen the plaintiff's abuse by ․ Reardon.” The trial court also declined to allow Salter to answer a question posed by the hospital's counsel as to whether the hospital “could have foreseen that Reardon had a propensity to abuse children” because that was “the ultimate issue for the jury to decide.” The plaintiff's counsel expressed the same view in an objection made immediately after the question was asked but before the trial court ruled.

The hospital also indicated that knowledge of propensity was the critical issue in the case on numerous occasions throughout the proceedings. The hospital asked for a propensity instruction in its preliminary request to charge, which proposed in relevant part: “In order to prove that [the hospital] owed [the plaintiff] ․ a duty, the plaintiff must prove that the specific harm alleged by the plaintiff was foreseeable to [the hospital]. Specifically, the plaintiff must prove that [the hospital] had either actual or constructive notice that ․ Reardon had a propensity to sexually abuse children before the plaintiff was abused by ․ Reardon.” In addition, the hospital proposed interrogatories relating to negligent supervision and special duty of care that included questions relating to whether the plaintiff had proven that the hospital knew or should have known of Reardon's propensity to engage in the sexual abuse of children before he abused the plaintiff.14

The trial court, however, rejected the hospital's proposed jury instructions and interrogatories. Immediately before closing arguments, the trial court stated: “I'm going to note for the record that we had a charging conference yesterday in which, after some good discussion between the parties and the court trying to fashion and craft a charge acceptable to all parties, we couldn't quite get to the promised land. But I have provided a copy to counsel, both late yesterday, a draft of the charge as well as again this morning, a slightly revised copy of the charge. They both have that. I realize that there are matters that both counsel are likely to request following the delivery of the charge which may lead to an exception being taken. And they can certainly do that after the charge has been delivered.”

After closing arguments, the trial court gave general instructions to the jury on common-law negligence but omitted the requested propensity instruction. With respect to count one of the plaintiff's complaint, the court instructed in relevant part: “The question is whether a reasonably prudent person in the [hospital's] position, knowing what the [hospital] knew or should have known, would anticipate that harm of the same general nature as that which occurred here was likely to result.” With respect to count two, the court instructed in relevant part: “A duty to use [care] exists when a reasonable person, knowing what the [hospital] ․ either knew or should have known at the time of the alleged conduct, would foresee that harm of the same general nature as that which occurred here was likely to result from that conduct.” The court continued: “[T]o prove that an injury is a reasonably foreseeable consequence of negligent conduct, a plaintiff need not prove that the [hospital] actually foresaw or should have foreseen the extent of the harm suffered or the manner in which it occurred. Instead, the plaintiff must prove that it is a harm of the same general nature as that which a reasonably prudent person in the [hospital's] position should have anticipated in view of what the [hospital] knew or should have known at the time of the negligent conduct.”

The hospital's counsel took exception to the trial court's omission of the requested propensity instruction, arguing that the court's proposed instruction on common-law negligence “fail[ed] to apprise the jury of the notice of propensity, which is required for [the jury] to find that [the hospital has] any duty to the plaintiff .” The hospital's counsel repeated the objection to the court's proposed instruction on reasonable care, stating: “Again, the key issue is notice of propensity, not just a reasonable care.” With respect to the court's instruction on proximate cause, the hospital's counsel objected a third time: “The issue is not harm of the same general nature, again, but notice of the propensity to abuse children.”

Thereafter, the trial court gave the jury a series of general interrogatories that did not mention knowledge of propensity or the foreseeability of harm but were directed to the jury's potential findings on general negligence and the special duty of care. The principal interrogatory on the plaintiff's negligent supervision claim simply asked: “Do you find by a fair preponderance of the evidence that [the hospital] was negligent in one or more of the ways alleged in count one of the plaintiff's complaint and that this negligence was a substantial factor in causing the plaintiff's injuries and damages?” The corresponding interrogatory on the plaintiff's breach of a special duty of care to children similarly asked: “Do you find by a fair preponderance of the evidence that [the hospital] owed a special duty of care to [the plaintiff] and that [the hospital] breached this special duty of care in one or more of the ways alleged in count two of the plaintiff's complaint and that this breach was a substantial factor in causing the plaintiff's injuries and damages?”

Considering the hospital's request to instruct the jury, its objections to the instructions that were given, the fact that the trial court and the parties acknowledged throughout the trial proceedings that knowledge of Reardon's propensity to sexually abuse children was a critical issue in the case, and, significantly, the testimony at trial that the presence of pedophiles in trusted institutions such as churches and hospitals was not a matter of common knowledge during the 1960s and 1970s, I would conclude that a propensity instruction was required under both counts of the plaintiff's complaint and that the trial court's failure to give the instruction was improper.

The question remains as to whether the trial court's failure to give the instruction constituted harmful error, thus requiring a new trial. This court has repeatedly recognized that “not every error is harmful․ [B]efore a party is entitled to a new trial ․ he or she has the burden of demonstrating that the error was harmful․ An instructional impropriety is harmful if it is likely that it affected the verdict․ In determining whether an instructional impropriety was harmless, we consider not only the nature of the error, including its natural and probable effect on a party's ability to place his full case before the jury, but the likelihood of actual prejudice as reflected in the individual trial record, taking into account (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled.” (Internal quotation marks omitted.) Allison v. Manetta, 284 Conn. 389, 400, 933 A.2d 1197 (2007).

With respect to the first factor, the plaintiff presented no evidence that the hospital had ever received any complaints about Reardon. Beverly Faulds, who worked as Reardon's secretary from 1964 to 1981, specifically testified that she had never received a single complaint from a patient or a parent of a patient. On the contrary, she had consistently received positive feedback from patients regarding Reardon. It is also undisputed that the plaintiff presented no evidence that the hospital had actual or constructive knowledge of Reardon's propensity to sexually abuse children. Instead, the plaintiff contends that certain facts known to the hospital should have “raised red flags.” Among these purported facts were that (1) Reardon saw many children in his office, (2) he was photographing them naked, (3) he was manipulating the children's genitalia, (4) boys were unchaperoned during these sessions,15 (5) Reardon had not published anything based on the growth study during the relevant time period, 1964 to 1972, (6) Reardon did not use the hospital photographer, either to take or develop his photographs, and (7) Reardon had ordered a few books on sexual topics, including one about the juvenile homosexual experience.16 The plaintiff does not contend, however, that these facts would be sufficient to demonstrate that the hospital had actual or constructive knowledge of Reardon's propensity to sexually abuse children. Nor is it likely that the plaintiff could prevail on such a claim. Nothing in these facts demonstrates that the hospital should have known of Reardon's sexual proclivities.

The harmfulness of the error is further demonstrated by the numerous, facially innocent explanations for most of the plaintiff's purported red flags. For example, the fact that Reardon had many children coming into his office was explained by the growth study itself. The fact that the children were naked and that he handled their genitalia was hardly irregular. The plaintiff's own expert, Maria New, a pediatric endocrinologist and geneticist, and professor of pediatrics at Mount Sinai School of Medicine in New York, testified that she handled children's genitalia during examinations. Thomas Godar, a pulmonologist and head of the department of pulmonary physiology at the hospital in the late 1960s, testified that the physical examination performed by an endocrinologist to assess growth and sexual development would involve measuring genitalia, which apparently would require manipulation. As for Reardon's failure to publish for the eight year period between 1964 and 1972, the plaintiff does not dispute that Reardon used growth study slides during his many lectures and that the slides depicted children without their clothing. Although the plaintiff relied heavily on the fact that Reardon failed to use the hospital photographer, that practice was not unique to Reardon. Several witnesses, including the hospital photographer, testified that other hospital physicians also took their own photographs.

Moreover, ample evidence placed these so-called red flags in context. Reardon was respected and well liked by his colleagues, and was considered to be a skilled lecturer and teacher at Yale University School of Medicine, Newington Children's Hospital, and the University of Connecticut School of Medicine. Residents sought him out as a teacher, and colleagues referred their family members and pediatric patients to Reardon. Finally, no one had ever seen Reardon do anything that would lead them to believe that he had a propensity to abuse children. Faulds testified that, although her office immediately adjoined Reardon's office and examination room, she never heard or saw anything that caused her concern and had no idea that he was sexually abusing children.

The lack of a jury instruction on propensity was not ameliorated by the trial court's other jury instructions because those instructions were general in nature, and no other instruction focused the jury's attention on whether the hospital owed a duty to the plaintiff based on knowledge of Reardon's propensity to sexually abuse children before he abused the plaintiff. Nor did the parties' arguments present the notice of propensity issue to the jury in an equivalent form. The trial court rejected the requests of both parties to give a more specific instruction on actual and constructive knowledge of Reardon's propensity to engage in misconduct before closing arguments, and, therefore, neither party's argument specifically focused on knowledge of propensity. Instead, both parties argued extensively as to what the hospital knew or should have known that would have rendered Reardon's misconduct foreseeable. This question differed from whether the hospital had knowledge of Reardon's propensity to engage in criminal conduct because the difficulty of reasonably foreseeing the criminal behavior of Reardon more than forty years ago, when the existence of pedophilia in churches and hospitals was not a matter of common knowledge, required a more specific and stringent inquiry than a general foreseeability analysis. Moreover, the jury interrogatories were not designed to focus attention on the elements of negligence or on the issue of foreseeability but were general in scope and merely asked whether the hospital was negligent in one of the ways alleged and, if so, whether the negligence was a substantial factor in causing the plaintiff's injuries. Accordingly, in view of the lack of evidence demonstrating that the hospital had actual or constructive knowledge of Reardon's propensity to abuse children, the inadequacy of the trial court's other instructions, the lack of focus in the jury interrogatories, and the parties' failure to bring the issue of propensity to the jury's attention during closing arguments, I would conclude that the trial court's failure to give the requested instruction was unquestionably harmful, thus warranting a new trial.

C

Majority's Improper Application of Restatement Provisions and the Standard of Review

Even assuming that count one of the plaintiff's complaint does not allege negligent supervision, the majority's analysis improperly relies on principles in § 302 B of Restatement (Second) that (1) neither party has pleaded or argued, (2) were not articulated in the trial court's instructions to the jury, and (3) the majority incorrectly portrays as applying to claims of general negligence. According to the majority, there are two ways to establish that the criminal misconduct of a third party is “foreseeable” to a defendant. The first, which occurs in the “great majority of cases,” is by “proof of actual or constructive knowledge of propensity․” The second is by adducing “other evidence” that the misconduct was foreseeable. The majority thus reasons that, when there is no evidence that the defendant knew or should have known of the third party's criminal propensity but there is “other evidence” that the third party's criminal misconduct was foreseeable, it is improper to give the jury an instruction on knowledge of propensity because “such an instruction would foreclose the jury from returning a verdict for the plaintiff predicated on the other evidence adduced by the injured party on the issue of foreseeability.” The majority explains that the “other evidence” to which it refers includes facts demonstrating negligence under § 302 B, which recognizes liability when the defendant's own conduct creates or increases the foreseeable risk that another person will be harmed by a third party's criminal misconduct. Applying this logic to the present case, the majority concludes that the trial court properly declined to give the requested propensity instruction because there was no evidence that the hospital had knowledge of Reardon's propensity to sexually abuse children, and, accordingly, the plaintiff was entitled to a jury determination based on “other evidence” in the record that the hospital's own conduct created or increased the foreseeable risk that Reardon would harm the plaintiff. I disagree.

1

I first note that neither the plaintiff nor the hospital has argued, including on appeal to this court, that count one alleges negligence under § 302 B, and, therefore, to the extent the majority concludes that count one of the plaintiff's complaint is predicated on, or “implicates,” the principles contained in § 302 B; footnote 38 of the majority opinion; it mischaracterizes count one. As previously discussed in part I A of this opinion, the parties and the trial court repeatedly described, in the proceedings leading up to this appeal, count one as sounding in negligent supervision. Furthermore, in its preliminary request to charge, the hospital sought an instruction on negligent supervision and duty that allowed the jury to find the hospital liable only if it had actual or constructive notice of Reardon's propensity to sexually abuse children before he abused the plaintiff. The plaintiff likewise sought an instruction in his preliminary request to charge allowing the jury to find the hospital liable if it had actual or constructive notice of “Reardon's activity and failed to act.” There is no express or implied reference in any of the parties' proposed instructions to the need for an instruction under § 302 B.

There is also no reference to, or reliance on, § 302 B in count one of the plaintiff's complaint or in the parties' appellate briefs. The hospital cites §§ 315 and 320 in arguing that, when there is a special relationship of custody or control, a defendant has only a limited duty to protect against a third person's sexual abuse of another person, which arises when the defendant knows or should know of the third person's propensity for sexual abuse. The plaintiff now disavows the need for an instruction on actual or constructive notice and argues on appeal that count one is “a claim of ordinary negligence” and that general principles relating to foreseeability, not notice of propensity, determine duty in Connecticut. Thereafter, in discussing “the controlling law governing foreseeability in Connecticut negligence cases,” the plaintiff argues that the trial court properly instructed the jury on the theory of duty and general negligence articulated in Connecticut Civil Jury Instruction 3.6–7. The plaintiff thus contends that foreseeability means exactly what the trial court instructed that it means, and that the relevant question is whether the ordinary person in the defendant's position, knowing what he knew or should have known, should have anticipated that harm of the general nature of that suffered was likely to result in the absence of due care. Accordingly, the majority's assertion that “the principles underlying § 302 B inform the arguments that the parties make on appeal” is a gross misstatement of the record. Footnote 26 of the majority opinion.

2

As noted in part I B of this opinion, the trial court's jury instructions on duty of care also were based on principles of general negligence. The court first instructed that, “[u]nder our common law, negligence is the failure to use reasonable care under the circumstances. Reasonable care is the care that a reasonably prudent person would have used in the same circumstances. In determining the care that a reasonably prudent person would use in the same circumstances, you should consider all of the circumstances which were known or should have been known to the [hospital] at the time of the conduct in question. Whether care is reasonable depends upon the dangers that a reasonable person would perceive in those circumstances.”

The court next instructed the jury on general negligence in accordance with Connecticut Civil Jury Instruction 3.6–7, stating that “[a] duty to use care exists when a reasonable person, knowing what the [hospital] ․ either knew of should have known at the time of the alleged conduct, would foresee that harm of the same general nature as that which occurred here was likely to result from that conduct. If harm of the same general nature as that which occurred here was foreseeable, it does not matter ․ if the manner in which the harm that actually occurred was unusual, bizarre or unforeseeable. If you find that [the][h]ospital was negligent in either its supervision of ․ Reardon or relative to a special duty it owed to the plaintiff as a child, you must next decide if such negligence was a legal cause of any of the plaintiff's claimed injuries.”

From the foregoing, it is clear that the jury was not instructed to consider whether the evidence was sufficient to find the hospital liable for Reardon's criminal misconduct under § 302 B of the Restatement (Second). Moreover, the majority agrees that “the trial court did not instruct the jury in the language of [§ 302 B]․ Rather, the court charged the jury in accordance with general negligence principles, without elaborating on any of the specific considerations that pertain to a claim of liability predicated on § 302 B․” Footnote 26 of the majority opinion.

3

Given these undisputed facts, the majority's assertion that count one of the plaintiff's complaint “is predicated on general negligence principles, as set forth more particularly in § 302 B of the Restatement (Second) ” makes no sense. (Emphasis added.) Footnote 29 of the majority opinion. Count one cannot be predicated on both the rule of general negligence and an exception to the rule. Although the majority accepts the plaintiff's argument on appeal that count one alleges general or “ordinary” negligence, even a cursory examination of § 302 B indicates that it does not describe “ordinary” negligence but, rather, refers to the far from ordinary circumstance in which liability may be imposed on a defendant for a third party's intentional or criminal misconduct. The majority thus conflates general or “ordinary” negligence with the negligence that may be found in circumstances involving criminal misconduct that are not, by any definition, ordinary.

This distinction is expressly recognized in comment (d) to § 302 B, which provides in relevant part: “Normally the actor has much less reason to anticipate intentional misconduct than he has to anticipate negligence. In the ordinary case he may reasonably proceed upon the assumption that others will not interfere in a manner intended to cause harm to anyone. This is true particularly where the intentional conduct is a crime, since under ordinary circumstances it may reasonably be assumed that no one will violate the criminal law.” (Emphasis added.) 2 Restatement (Second), supra, § 302 B, comment (d), at p. 89, 933 A.2d 1197. In other words, the actor normally, or ordinarily, has no reason to expect that a third party will engage in criminal misconduct. Consequently, only in certain limited circumstances that cannot be deemed normal or ordinary will the actor be found to have a duty of care that would subject him to liability for conduct that results in harm to another person because of a third party's criminal misconduct. Some of these circumstances are described in other comments to § 302 B. Accordingly, in order to determine whether the jury could have found the hospital liable under that provision, it must be examined in more detail.

As the majority explains, § 302 B is not only closely related to, but is derived from, § 449 of the Restatement (Second);17 see footnote 21 of the majority opinion; which also addresses the tortious or criminal conduct of a third person, the probability of which causes the actor's conduct to be deemed negligent. See 2 Restatement (Second), supra, § 449, at p. 482, 933 A.2d 1197. I thus begin with that provision.

Section 449 of the Restatement (Second) provides: “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.” Id. Comment (a) further explains that § 449 “should be read together with § 302 B, and the [c]omments to that [s]ection, which deal with the foreseeable likelihood of the intentional or even criminal misconduct of a third person as a hazard which makes the actor's conduct negligent. As is there stated, the mere possibility or even likelihood that there may be such misconduct is not in all cases sufficient to characterize the actor's conduct as negligence. It is only where the actor is under a duty to the other, because of some relation between them, to protect him against such misconduct, or where the actor has undertaken the obligation of doing so, or his conduct has created or increased the risk of harm through the misconduct, that he becomes negligent.” (Emphasis added.) Id., comment (a), at pp. 482–83, 933 A.2d 1197. It is the provision's last reference to conduct that creates or increases the risk of harm that, the majority maintains, is applicable in the present case.

Section 302 B discusses more specifically the risk of the intentional or criminal conduct to which § 449 refers. Section 302 B provides: “An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.” Id., § 302 B, at p. 88, 933 A.2d 1197. As to the determination of whether an actor “realizes or should realize” the risk of harm so created; id.; comment (d) to § 30218 provides the following guidance: “If the actor's conduct has created or continued a situation which is harmless if left to itself but is capable of being made dangerous to others by some subsequent action of a human being ․ the actor's negligence depends upon whether he as a reasonable man should recognize such action or operation as probable. The actor as a reasonable man is required to know the habits and propensities of human beings ․ in the locality in which he has intentionally created such a situation or in which he knows or should realize that his conduct is likely to create such a situation ․ In so far as such knowledge would lead the actor as a reasonable man to recognize a particular action of a human being ․ as customary or normal, the actor is required to anticipate and provide against it. The actor is negligent if he intentionally creates a situation, or if his conduct involves a risk of creating a situation, which he should realize as likely to be dangerous to others in the event of such customary or normal act or operation.” (Citation omitted; emphasis added.) Id ., § 302, comment (d), at p. 83, 933 A.2d 1197. It thus may be concluded that, to the extent a third party acts in a manner that is not customary or normal, such as by engaging in criminal misconduct, the actor generally has no duty to anticipate that misconduct or to provide another person with protection against it. See id., § 302 B, comment (d), at p. 89, 933 A.2d 1197.

In subjecting an actor to liability for the criminal acts of third persons who do not, by definition, comport with the recognized “habits and propensities of human beings”; id., § 302, comment (d), at p. 83, 933 A.2d 1197; comments to § 302 B of the Restatement (Second) articulate a foreseeability test indicating that an actor must have knowledge of the third party's attributes or propensities in order to anticipate that the actor's own conduct will create the risk of harm to another through the third party's criminal misconduct.19 For example, comment (f) to § 302 B provides that, among the factors to be considered in deciding whether an actor is required to take precautions to protect another person against a third party's intentional or criminal misconduct are the “known character, past conduct, and tendencies of the person whose intentional conduct causes the harm ”; (emphasis added) id., § 302 B, comment (f), at p. 93, 933 A.2d 1197; thus indicating that express knowledge of the third party's character and personal traits is an important factor in determining whether the actor has a duty in any particular case.

This point is clarified in the illustration following comment (f) to § 302 B. A, a convict serving a state prison sentence for forging a check, has exhibited no tendency for violence while in prison and tests indicate that he is mentally normal. Id., illustration (16), at p. 93, 933 A.2d 1197. A is thus permitted to do “outside work” on the prison farm with other prisoners, but he is not properly guarded and escapes. Id., at pp. 93–94, 933 A.2d 1197. During his escape, he stops a vehicle, threatens the driver, B, with a knife, and takes B's car. Id., at p. 94, 933 A.2d 1197. The state is nonetheless not deemed negligent toward B, who suffers from severe emotional distress and a stroke as a result of the incident; id.; because A's known character, past conduct and tendencies gave no warning to the state that A might engage in further criminal misconduct if he was allowed to participate in the outside work. See id. Although comment (f) also refers to several other factors that merit consideration,20 it is significant that the first three factors listed, as well as the illustration, refer to the importance of specific knowledge regarding the third party's character and past conduct for purposes of determining liability based on negligence. Accordingly, those factors cannot be ignored.

Moreover, comment (f) is not the only provision that refers to knowledge of the third party's potentially dangerous character as a significant factor in determining duty. As previously discussed, comment (e) to § 302 B provides that “situations in which the actor, as a reasonable man, is required to anticipate and guard against the intentional, or even criminal, misconduct of others ․ arise where ․ the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account.” (Emphasis added.) Id., comment (e), at p. 90, 933 A.2d 1197. In other words, if the high degree of risk of harm must be “recognizable” by “a reasonable man”; id.; then it must be within the awareness or knowledge of a reasonable man because a reasonable man could not take “a recognizable high degree of risk” into account, as required by the rule, without being aware of the harm that might arise from his affirmative act. Id.

To assist in understanding this interpretive rule, comment (e) lists numerous examples and illustrations of situations in which an actor would be subject to liability, all of which presume that he has specific knowledge of the highly probable risk of harm. Of those that apply in the present context, example (D) in comment (e) posits a factual scenario “[w]here the actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct, under circum stances which afford a peculiar opportunity or temptation for such misconduct.” (Emphasis added.) Id., comment (e), example (D), at p. 91, 933 A.2d 1197. The two illustrations following this example discuss actors who created situations involving a high degree of risk and who knew or should have known, because of generally recognized characteristics associated with the environment or with the third party wrongdoer, that harm would very likely occur because of the actor's conduct. See id., illustrations (9) and (10), at pp. 91–92, 933 A.2d 1197. Thus, A, the landlord of an apartment house who employs B as a janitor, “knowing that B is a man of violent and uncontrollable temper ” and “has attacked those who [have] argue[d] with him ” in the past, may be found negligent toward C, an apartment tenant, who is attacked by B after complaining to B of inadequate heat. (Emphasis added.) Id., illustration (9), at pp. 91–92, 933 A.2d 1197.21

In light of these examples and illustrations, it seems entirely clear to me that, in order to subject an actor to liability for the criminal misconduct of a third party under § 302 B, a jury must be instructed to consider whether the actor has actual or constructive knowledge, or some type of explicit realization, awareness or recognition, that his conduct is highly likely to create a risk of harm by the third party, whose known character, past conduct and tendencies suggest that he or she is likely to engage in the criminal misconduct at issue. This is a very different standard from the foreseeability standard applied in cases of general negligence under Connecticut law and the Restatement (Second), which requires only that a defendant “anticipate ․ harm of the [same] general nature” as that which occurred was likely to result from the defendant's own conduct; (internal quotation marks omitted) Sic v. Nunan, supra, 307 Conn. at 407; and is based on the actor's ability to anticipate harm arising from the “qualities and habits of human beings and animals and the qualities, characteristics, and capacities of things and forces in so far as they are matters of common knowledge at the time and in the community ․” (Emphasis added.) 2 Restatement (Second), supra, § 290(a), at p. 47. Indeed, the two concepts of foreseeability are grounded in diametrically opposed views, with foreseeability in general negligence cases being premised on the actor's knowledge that his conduct may lead to certain expected consequences flowing from the generally recognized “habits and propensities of human beings”; id., § 302, comment (d), at p. 83; and foreseeability under § 302 B being premised on the actor's knowledge of the third party's characteristics because criminal conduct is not expected or consistent with the ordinary “habits and propensities of human beings” that normally govern the foreseeability test under principles of general negligence.22 Id.; see id., § 302 B, at p. 88.

Other jurisdictions interpreting § 302 B also have concluded that an actor must have knowledge of a third party's criminal propensities or a specific awareness that his own conduct will create an unreasonably high risk of harm to another by the third party wrongdoer in order to be deemed negligent. See, e.g., James v. Meow Media, Inc., 300 F.3d 683, 695 (6th Cir.2002) (defendant purveyors of allegedly violent video games, movies and Internet sites were not liable under § 302 B for distributing products to person who subsequently committed violent act because, “[i]n every case that this court has discovered in which defendants have been held liable for negligently creating an unreasonably high risk of third-party criminal conduct, the defendants have been specifically aware of the peculiar tendency of a particular person to commit a criminal act with the defendants' materials ” [emphasis added] ), cert. denied, 537 U.S. 1159, 123 S.Ct. 967, 154 L.Ed.2d 893 (2003); Fedie v. Travelodge International, Inc., 162 Ariz. 263, 266, 782 P.2d 739 (App.1989) (finding no evidence to support conclusion that defendants should have foreseen criminal activity of third party under § 302 B, in part because defendants did not know third party had dangerous propensities), review denied, Arizona Supreme Court, Docket No. CV–89–0272–PR (Ariz. November 21, 1989); Waldon v. Housing Authority, 854 S.W.2d 777, 779 (Ky.App.1991) (defendant's failure to evict or otherwise discourage third party's presence at housing complex, despite knowledge of frequent criminal activity at complex and third party's repeated threats to kill tenant, “put its conduct within the parameters of ․ [§ ] 302 B”); Jupin v. Kask, 447 Mass. 141, 149, 849 N.E.2d 829 (2006) (defendant should have foreseen under § 302 B that third party, whom defendant knew had history of violence, had recent problems with law, and had been under psychiatric observation might use his unsupervised access to house to take unsecured weapon from basement gun cabinet and subsequently use weapon to commit violent crime); Newton v. Tinsley, 970 S.W.2d 490, 494 (Tenn.App.1997, appeal denied) (evidence insufficient to support finding of liability against defendant because § 302 B requires that defendant expose plaintiff to person whom actor knows or should know to be peculiarly likely to commit intentional misconduct); Golden Spread Council, Inc., No. 562 of the Boy Scouts of America v. Akins, 926 S.W.2d 287, 291 (Tex.1996) (plaintiff had duty under § 302 B not to recommend third party as scoutmaster because plaintiff was aware of allegations that third party had molested children); Tae Kim v. Budget Rent A Car Systems, Inc., 143 Wash.2d 190, 194–96, 15 P.3d 1283 (2001) (evidence insufficient to support liability against defendant under § 302 B after third party stole unlocked car with keys in ignition from parking lot at defendant's administrative facility and committed vehicular assault of plaintiff, in part because no vehicle previously had been stolen from parking lot); Schwartz v. Elerding, 166 Wash.App. 608, 620, 270 P.3d 630 (distinguishing “usual duty of ordinary care” from “heightened” duty of care under § 302 B, which required that parents who gave shotgun to child have “special knowledge” that they might have “reasonable cause for concern” that child would use shotgun to assault another person), review denied, 174 Wash.2d 608, 281 P.3d 686 (2012); Miller v. Whitworth, 193 W.Va. 262, 266–68, 455 S.E.2d 821(1995) (evidence insufficient to hold landlord of mobile home park liable to tenant for failing to protect tenant from criminal activity of third party under § 302 B, despite landlord's general knowledge of prior, unrelated incidents of criminal activity on premises, because landlord never received complaints about third party attacker before he committed crime that led to tenant's injuries); see also Anderson v. Bushong Pontiac Co., 404 Pa. 382, 384–90,171 A.2d 771(1961) (defendant liable under predecessor to § 302 B in First Restatement for injuries to pedestrian caused by boy who drove stolen car upon proof that boy stole keys from vehicle displayed for sale on defendant's used car lot and habitually played with other boys in and around cars on lot, and that defendant knew key was stolen and that boys used lot for recreational purposes, but defendant failed to remove car from lot or take other precautions to prevent its operation). As at least one noted treatise has stated in this context, “[i]t would be unjust to require one to anticipate that a crime will be committed unless there has been a warning or unless a previous criminal act occurred [on] the same premises.” (Internal quotation marks omitted.) W. Keeton et al., supra, § 33, at p. 201 n. 78, 171 A.2d 771.

In sum, the majority's assertion that the jury could have found the hospital liable under the general negligence principles articulated in § 302 B not only fails to recognize that § 302 B does not describe general negligence but directly conflicts with the majority's corresponding assertion that § 302 B represents an exception to the theory of general negligence that one is ordinarily not responsible for the criminal misconduct of a third party. Furthermore, neither the parties nor the trial court relied on, or acknowledged, § 302 B during the trial proceedings. This logical inconsistency has significant consequences for the majority's conclusion that the trial court properly declined to give the requested propensity instruction. Without an instruction advising the jury, in accordance with § 302 B, to consider all of the factors described therein, including Reardon's character, the jury could not have conducted a proper risk utility balancing analysis and found “other evidence” unrelated to Reardon's character or propensities sufficient to subject the hospital to liability for Reardon's criminal misconduct, as the majority claims the jury was entitled to do.23

Turning to count two of the plaintiff's complaint, the majority provides no logical explanation for its reasoning with respect to how the Restatement (Second) supports its determination that a propensity instruction was not required with regard to the plaintiff's claim alleging breach of the hospital's special duty of care to children. The majority first concedes that “there is no duty to control the conduct of the third party unless, in light of the facts, the defendant knows or should know of the necessity and opportunity for exercising such control.” (Internal quotation marks omitted.) It then states that this determination “is not materially different from the determination to be made under count one of the plaintiff's complaint, namely, whether, in light of the relevant facts and circumstances, the hospital should have anticipated the harm of the kind that the plaintiff suffered at the hands of Reardon and have taken reasonable precautions to prevent it .” Footnote 31 of the majority opinion. I disagree because this reasoning is internally inconsistent.

As in its analysis under count one, the majority fails to apply the proper Restatement provisions, which impose a different standard for finding negligence when the defendant has a custodial relationship with the victim than the standard required for a finding of general negligence. In the present case, the trial court did not instruct the jury that it should consider the “necessity and opportunity” for exercising control over Reardon, as the majority concedes is required when a custodial relationship exists, but gave the following abbreviated instruction: “[Y]ou should know that, except in limited circumstances, a person has no duty to take actions in order to control the conduct of a third person to prevent harm to another person. One of the exceptions to this general rule is when there's a special relation between the actor and the other which gives a right to protection. In this case, there must be a special relation between [the plaintiff] and [the] hospital in order for the exception to apply. The relation between a hospital and a child obligates the hospital to protect the child from harm, if you find that the hospital had custody of the child at the time that the harm occurred.” The court then continued: “A duty to use [care] exists when a reasonable person, knowing what the [hospital] ․ either knew or should have known at the time of the alleged conduct, would foresee that harm of the same general nature as that which occurred here was likely to result from that conduct. If harm of the same general nature as that which occurred here was foreseeable, it does not matter if ․ the manner in which the harm that actually occurred was unusual, bizarre or unforeseeable.” The trial court referred at least five times to the harm in question as “harm of the same general nature as that which occurred,” and never referred to the more specific “necessity and opportunity” for exercising control, as directed by § 320(b) of the Restatement (Second), which the majority acknowledges is the relevant governing language. I thus view the trial court's instruction on foreseeability as grossly deficient and rely on my previous discussion to explain why I believe a propensity instruction was also required in order for the jury to adequately address the claim raised in count two of the plaintiff's complaint.

4

I finally disagree with the majority's analysis of the propensity instruction claim because it fails to apply the proper standard of review. The issue on appeal is whether the trial court was required to give the requested instruction because the knowledge by the hospital of Reardon's propensity to sexually abuse children was necessary in order to find that the hospital had a duty to protect the plaintiff from harm. The jury instruction challenge thus presents a question of law over which our review is plenary. See, e.g., State v. Santiago, 305 Conn. 101, 191, 49 A.3d 566 (2012) (“[a] challenge to the validity of jury instructions presents a question of law over which [we have] plenary review” [internal quotation marks omitted] ); State v. Terwilliger, 294 Conn. 399, 412, 984 A.2d 721 (2009) (same).

Ordinarily, this court reviews a jury instruction claim to determine whether the charge is correct in the law, adapted to the issues and sufficient to guide the jury. E.g., Archambault v. Soneco/Northeastern, Inc., supra, 287 Conn. at 42, 946 A.2d 839. In the present case, the majority concludes, on the basis of the evidence, that “the plaintiff sought to persuade the jury ․ that there was a foreseeable risk that the children who had been volunteered to participate in the study ․ would be sexually exploited or abused in some manner, such that the hospital was required to take at least some precautions to protect this highly vulnerable group of subjects. Consequently, unless this evidence was insufficient as a matter of law to support a verdict for the plaintiff, an issue that ․ the hospital has elected not to pursue on appeal, the plaintiff was entitled to a jury determination of whether, under all of the circumstances, the hospital's complete failure to supervise Reardon's activities exposed the plaintiff to an undue risk of sexual exploitation even though the hospital was unaware of Reardon's criminal propensities.” (Emphasis in original; footnotes omitted.) The majority thus concludes that it would have been improper for the trial court to instruct the jury that the plaintiff must prove that the hospital had either actual or constructive notice of Reardon's propensity to abuse children before he abused the plaintiff.

I disagree with this analysis because it is based on two irreconcilable premises, namely, that count one falls within the “exception,” set forth in §§ 302 B and 449 of the Restatement (Second), to the general rule that one has no legal obligation to aid or protect another party, and that “the trial court did not instruct the jury in the language of [§ 302 B]․ Rather, the court charged the jury in accordance with general negligence principles, without elaborating on any of the specific considerations that pertain to a claim of liability predicated on § 302 B․” Footnote 26 of the majority opinion. This reasoning is not only confusing but leaves one wondering why the majority spends so much time explaining the relevance of § 302 B if it does not ultimately matter that the jury was not instructed to find negligence under that provision.

In my view, if the jury had determined that the hospital was negligent pursuant to an instruction that was consistent with the principles set forth in § 302 B, this court would have been free to conclude that there was no need for an instruction on knowledge of propensity because, among the requisite factors to be considered under § 302 B are the “known character, past conduct, and tendencies” of the third party wrongdoer. 2 Restatement (Second), supra, § 302 B, comment (f), at p. 93, 946 A.2d 839. In light of the majority's recognition, however, that the trial court gave an instruction “in accordance with general negligence principles” and did not give an instruction on the “specific considerations that pertain to a claim of liability predicated on § 302 B”; footnote 26 of the majority opinion; it cannot conclude that there was no need for a propensity instruction on the ground that the jury was entitled to find negligence against the hospital under § 302 B. It is simply not possible to know whether the jury would have deemed the evidence sufficient to find negligence against the hospital under § 302 B—as the majority has explicitly concluded that it did24 —in the absence of a specific instruction predicated on that provision because it is the jury's function to make credibility and other determinations on the basis of the instructions that are given.25 See, e.g., Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 22, 60 A.3d 222 (2013) (jury is presumed to have followed instructions given “unless the contrary appears” [internal quotation marks omitted] ). The majority cannot take that function away from the jury and make its own sufficiency determination, as it has done in the present case.

A proper instruction under § 302 B would have advised the jury to follow the directive in comment (f) that requires a “balancing [of] the magnitude of the risk against the utility of the actor's conduct. Factors to be considered are the known character, past conduct, and tendencies of the person whose intentional conduct causes the harm, the temptation or opportunity which the situation may afford him for such misconduct, the gravity of the harm which may result, and the possibility that some other person will assume the responsibility for preventing the conduct or the harm, together with the burden of the precautions which the actor would be required to take. Where the risk is relatively slight in comparison with the utility of the actor's conduct, he may be under no obligation to protect the other against it.” 2 Restatement (Second), supra, § 302 B, comment (f), at p. 93.

Lacking an instruction based on this language, the jury could not have conducted the risk utility analysis necessary to determine whether the hospital had been negligent because such an analysis requires consideration of character and conduct.26 As previously noted, the jury in this case found the evidence sufficient only to support a finding of general negligence because that was the theory on which it was instructed; it did not find that the hospital was negligent under the standard articulated in § 302 B for failing to anticipate that its own conduct would create a risk of harm to the plaintiff because of Reardon's character or criminal propensities. The hospital's failure to challenge the sufficiency of the evidence under § 302 B is thus both irrelevant and understandable because the jury could not have made a finding of negligence under § 302 B without an appropriate instruction in accordance with that provision.27 Consequently, given the present record and the trial court's instructions on general negligence, the majority applies the incorrect standard of review and incorrectly concludes that no propensity instruction was required. The requested propensity instruction would have remedied the trial court's instructions on general negligence and provided the jury with sufficient guidance for determining whether the hospital could be found negligent for Reardon's criminal misconduct.

II

APPLICABLE STANDARD OF CARE INSTRUCTION

I also disagree with the majority's conclusion that the trial court properly declined to give the hospital's requested instruction regarding the use of its bylaws to establish the legally applicable standard of care in the relevant community. The hospital had requested an instruction based on this court's decision in Petriello v. Kalman, 215 Conn. 377, 386, 576 A.2d 474 (1990), that the “[h]ospital bylaws, including the bylaws of the medical staff that the plaintiff put into evidence, do not themselves establish the standard of care.” The court nonetheless declined this request.

The majority concludes that no such instruction was necessary because one of the plaintiff's expert witnesses, Arthur Sidney Shorr, testified that the hospital's bylaws reflected the legally applicable standard of care. The majority explains that, “[w]hen ․ the plaintiff adduces otherwise admissible expert testimony that [an] institution's bylaws do, in fact, reflect the standard of care, there simply is no need for the requested instruction.” Text accompanying footnote 45 of the majority opinion. The majority, however, misconstrues Shorr's testimony and misunderstands Connecticut law regarding the effect of hospital bylaws on the legally applicable standard of care in the relevant community.

Turning first to the expert testimony, Shorr did not testify that the hospital's bylaws “coincide with the legally applicable standard of care in the relevant community,” as the majority maintains. Shorr initially explained that the bylaws were created jointly by the hospital medical staff and its governing board, and were “the rules of the road by which the ․ physicians in the hospital will conduct their business ․ [T]he ․ bylaws [constitute] the document that defines ․ what they are supposed to do, how they're supposed to be organized, what officers they're going to elect from within their own organization, and how they're going to conduct the business of the medical staff in the hospital.” (Emphasis added.) When the plaintiff's attorney introduced the bylaws into evidence, Shorr again testified that they were “the rules of the road for how the medical staff will govern itself, its committees, its activities, and its duties and responsibilities that are assigned to it by the governing body.” Shorr then described in greater detail how the bylaws governed the daily operations of the hospital, including the work of its research committee.

The term “standard of care” was not used by anyone to describe the bylaws until direct examination of Shorr resumed following a recess. At that time, the plaintiff's attorney asked Shorr: “What does the term ‘standard of care’ mean?” Shorr responded: “[The] [s]tandard of care or the synonym for that community standard is the minimally accepted behavior or action that is expected of personnel and hospitals discharging their duties and responsibilities, whether they're medical, clinical, or administrative.” (Emphasis added.) The plaintiff's attorney then asked: “And was there a standard of care required at [the][h]ospital with regard to having approval before ․ Reardon began any growth study?” When Shorr responded in the affirmative, the attorney asked where that standard came from. Shorr replied that “[i]t comes from their own bylaws.” Shorr further explained that the bylaws represented “[t]he standard that [the hospital] set for itself” to govern the conduct of its business operations and research. Thereafter, the plaintiff's attorney repeatedly asked Shorr questions that characterized the bylaws as the hospital's standard of care, and Shorr continued to testify regarding the rules established in the bylaws that governed the operations of the hospital.28 On cross-examination, Shorr acknowledged that he had not reviewed the present or past policies and procedures of any other hospitals in connection with his work in the present case.

On the basis of these facts, it is clear that Shorr's only testimony regarding the principles that define the legally applicable standard of care in the relevant community was extremely brief and made no reference to the bylaws. He merely stated: “[The][s]tandard of care or the synonym for that community standard is the minimally accepted behavior or action that is expected of personnel and hospitals discharging their duties and responsibilities, whether they're medical, clinical, or administrative.” Moreover, Shorr's original lengthy and detailed testimony regarding the hospital's bylaws did not equate them with the legally applicable standard of care. Rather, it was the plaintiff's attorney who initially used the term “standard of care” in referring to the bylaws as the rules of governance for the hospital. Accordingly, insofar as the majority concludes that the trial court properly declined to give the hospital's requested jury instruction because Shorr testified that the hospital's bylaws coincided with the legally applicable standard of care in the relevant community, its conclusion is contradicted by Shorr's actual testimony and, therefore, cannot stand.29

Notwithstanding this defect, the trial court's failure to give the requested instruction misled the jury and constituted harmful error because it permitted the plaintiff's legally flawed theory that the hospital's internal bylaws established the legally applicable standard of care to remain uncorrected. In other words, the trial court's failure to give the instruction very likely caused the jury to believe that Shorr's testimony that the bylaws were the “rules of the road” defined the legally applicable standard of care in the relevant community and the hospital's legal duty to the plaintiff.

The hospital bylaws established the hospital research committee and provided in relevant part that “the [c]ommittee shall require and receive periodic reports of the progress of investigations which have been approved and initiated. On the basis of such reports, it shall recommend continuance or discontinuance.” Bylaws, Rules and Regulations of the Medical and Dental Staff of Saint Francis Hospital (1969 Rev.) § 13, para. 4, p. 30. The plaintiff relied in part on this provision of the bylaws to argue that the hospital had a duty to supervise and monitor Reardon's research activities, a duty that it owed to the plaintiff, and that the hospital's failure to require reports from Reardon on the growth study constituted a breach of that duty.30 The plaintiff thus argued that, if the hospital had required reports from Reardon, as the bylaws required, it would have discovered that the growth study was a sham and the plaintiff would have been spared.31

This court has stated that, “[a]lthough a violation of an employer's work rules can be viewed as evidence of negligence ․ hospital rules, regulations and policies do not themselves establish the standard of care.” (Internal quotation marks omitted .) Petriello v. Kalman, supra, 215 Conn. at 386, 576 A.2d 474. The rule is well established and is consistent with the general principle that the standard of care in a negligence action is an objective one, determined by external standards, and not a rule derived from individual practices.32 See W. Keeton et al., supra, § 33, at pp. 195–96, 576 A.2d 474. Indeed, a rule to the contrary would create a disincentive for hospitals and other institutions to establish aspirational guidelines by penalizing those that do. See Titchnell v. United States, 681 F.2d 165, 173 (3d Cir.1982) (to treat hospital's internal, aspirational guidelines and procedures as applicable standard of care regardless of deviation from “the recognized standard of care of the medical profession ․ would unfairly penalize health care providers who strive for excellence in the delivery of health care and benefit those who choose to set their own standard of care no higher than that found as a norm in the same or similar localities at the time”).

I further conclude that the error was harmful. In the absence of an instruction that the bylaws do not themselves establish the legally applicable standard of care, the jury was free to interpret Shorr's testimony as the plaintiff's counsel urged it to do and erroneously conclude that the hospital's bylaws were the “rules of the road” that did, in fact, establish the legally applicable standard of care. Moreover, it is likely that the jury was misled into doing so because Shorr's testimony was the only testimony that the plaintiff offered on this issue.33 Shorr admitted that, in arriving at his conclusion that the bylaws established the rules by which the hospital conducted its business, he had not reviewed the policies or procedures of any other hospitals. Moreover, the plaintiff did not offer any testimony or submit any evidence regarding the legally applicable standard of care other than that allegedly established by the hospital's bylaws.

The plaintiff's counsel exacerbated the problem during closing argument by claiming that the question before the jury was simply a matter of whether the hospital had abided by its bylaws, arguing that, if the jury concluded that the hospital did not, the jury should find for the plaintiff. The plaintiff's counsel also highlighted Shorr's misleading testimony during closing argument, reminding the jury during his discussion of the applicable standard of care that Shorr had “said nothing other than a hospital needs to follow its own rules ․ [and] when [the hospital] makes a promise, [it has] to keep it,” and asserting that the bylaws state “in black and white what the hospital was supposed to do․” In one of his final references to Shorr's testimony, the plaintiff's counsel similarly argued that, “what [Shorr] told you is that the bylaws are the rules of the road and they have to be followed․ I would suggest that the first way you could find the hospital responsible is they didn't follow their own rules regarding ․ research.” The requested limiting instruction was therefore necessary to prevent the jury from relying on the bylaws as the legally applicable standard of care in the relevant community in determining whether the hospital breached a duty owed to the plaintiff, in direct contradiction to what is required by law .34

In conclusion, I am concerned that the effect of the majority opinion will be to expose employers in Connecticut to an unreasonable risk of liability. As previously discussed, liability for the intentionally tortious or criminal misconduct of a third party has always been extremely limited under Connecticut law and the law of other jurisdictions. Even when an actor creates conditions, under the principles described in § 302 B of the Restatement (Second), that would afford a third party the opportunity to engage in criminal misconduct, the majority fails to recognize the protections to which the actor is entitled under that rule. This means that, contrary to the law of the overwhelming majority of other jurisdictions, every claim alleging a sexual attack or other intentional tort or crime by a third party against a prisoner, employee or any other person with whom the employer has a special relationship could be compensable without proof that the employer had actual or constructive knowledge, or any awareness whatsoever, of the third party's propensity to engage in the misconduct at issue. I am also concerned that the majority has established a single foreseeability standard that rejects the distinctions articulated in the Restatement (Second), which are followed by the overwhelming number of other jurisdictions, and that Connecticut courts may now be persuaded to apply in all cases of negligence, thus failing to accommodate the different considerations that necessarily arise in the wide variety of circumstances that give rise to claims of negligence. Finally, the majority effectively overrules the legal principle articulated in Petriello that hospital bylaws do not themselves establish the standard of care. See Petriello v. Kalman, supra, 215 Conn. at 386, 576 A.2d 474.

For the foregoing reasons, I respectfully dissent.

* * *

ZARELLA, J., dissenting.

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