author: BERDON, J.

text:
    MICHAEL A. KNIPPLE ET AL. v. VIKING COMMUNICATIONS, LTD., ET AL.
    (15189)
    Peters, C. X, and Callahan, Berdon, Norcott and Katz, Js.

      Argued November 29, 1995
    officially released April 16, 1996

      Paul Ruszczyk, for the appellants (plaintiffs).

      Philip M. Block, for the appellees (defendants).
   BERDON, J.

This is an appeal from a judgment of dismissal for lack of personal jurisdiction over a foreign corporation and a nonresident individual. The issue presented is whether the plaintiffs have satisfied the requirements of our long arm statutes.

In April, 1994, the plaintiffs, Michael and Stephanie Knipple, filed a five count complaint against the defendants, Viking Communications, Ltd. (Viking), and James McClelland, a sales director for Viking. Both Viking, a foreign corporation, and McClelland, a nonresident individual, were constructively served with process. Thereafter, the defendants appeared and filed a motion to dismiss pursuant to Practice Book §§ 142 and 143 for lack of personal jurisdiction, forum non conveniens and insufficient service of process. The plaintiffs then, pursuant to § 143, filed a memorandum in opposition to the motion to dismiss accompanied by an affidavit by Michael Knipple. Subsequently, the defendants filed an affidavit by William Harris, a manager at Viking, in support of their motion. Although some of the facts pertaining to jurisdiction were disputed, neither party requested an evidentiary hearing. At short calendar, the trial court heard argument on the motion to dismiss, and on October 31, 1994, granted the motion on the basis of the plaintiffs’ failure to prove the applicability of our state long arm statutes. We reverse the trial court’s judgment dismissing the action as to Viking, but affirm the judgment as to McClelland.

In their complaint, the plaintiffs alleged the following facts. In January, 1993, the plaintiffs received in their mail at home in Waterbury, Connecticut, a package of postcards soliciting inquiries for various products and services. Among the cards was one soliciting inquiries concerning vending machines, pay telephones and other business opportunities. The plaintiffs completed and returned that card. Within a few days, the plaintiffs began receiving postal and telephonic communications from representatives of Viking. The various representatives of Viking offered the plaintiffs an opportunity to purchase a “turn-key” business consisting of private pay telephones and promised that Viking would provide location and installation assistance. These communications were received either at the plaintiffs’ home or at Michael Knipple’s place of business in Danbury, Connecticut. In reliance on Viking’s representations, the plaintiffs invested in Viking’s private pay telephones by signing, on February 1,1993, at their home, a document entitled “Purchase Agreement.” The agreement was then sent to Viking’s office in Illinois where it was countersigned by McClelland. Under the terms of the agreement, the plaintiffs consented to pay Viking $16,350 for the purchase of private pay telephones. The following year the plaintiffs brought suit alleging that “Viking [had] failed and refused to provide the promised services.”

“Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss.” Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53-54, 459 A.2d 503 (1983). When a defendant files a motion to dismiss challenging the court’s jurisdiction, a two part inquiry is required. The trial court must first “decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process.” Frazer v. McGowan, 198 Conn. 243, 246, 502 A.2d 905 (1986); see Thomason v. Chemical Bank, 234 Conn. 281, 286, 661 A.2d 595 (1995); Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 250, 460 A.2d 481 (1983). In this case, the trial court went no further than the first inquiry; it found that the plaintiffs had failed to prove that the requirements of Connecticut’s long arm statutes — General Statutes § 33-411 with respect to foreign corporations and General Statutes § 52-59b with respect to nonresident individuals — had been satisfied.

If a challenge to the court’s personal jurisdiction is raised by a defendant, either by a foreign corporation or by a nonresident individual, the plaintiff must bear the burden of proving the court’s jurisdiction. Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 54. Under our current rules of procedure, a motion to dismiss “may perform the role of either a motion to erase or a plea in abatement under our former practice.” Pellegrino v. O’Neill, 193 Conn. 670, 672 n.4, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984). A motion to erase admitted “all facts which [were] well pleaded, invoke[d] the existing record and [was required to] be decided upon that alone.” Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988); 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 103. The plea in abatement was the required pleading when an alleged jurisdictional defect could not be determined on the record. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 587-88, 409 A.2d 1029 (1979); 1 E. Stephenson, supra, § 103. Under a plea in abatement, once issues of fact were joined, the trial court was required to conduct an evidentiary hearing to determine the disputed facts necessary to decide the jurisdictional issue. 1 E. Stephenson, supra, § 108 (d).

In view of the dual roles of a motion to dismiss — that is, as a motion to erase and as a plea in abatement — this court has previously considered the undisputed factual allegations in the complaint as well as the undisputed factual allegations in the various affidavits when adjudicating the motion where no evidentiary hearing has been held. Barde v. Board of Trustees, supra, 207 Conn. 61-62. Because an evidentiary hearing was not requested in this case by either party, we will accept, as the trial court should, all undisputed factual allegations for the purpose of determining whether the plaintiffs have sustained their burden of proving that the court had personal jurisdiction over either or both of the defendants under the long arm statutes.

I

JURISDICTION OVER A FOREIGN CORPORATION

The plaintiffs argue that the trial court had several bases for finding that the long arm statutes were satisfied with respect to Viking. Because we conclude that the plaintiffs have proven that the court had jurisdiction over Viking under § 33-411 (c) (4), we do not address the other statutory jurisdictional provisions invoked by the plaintiffs.

Pursuant to § 33-411 (c) (4), a foreign corporation is subject to suit in Connecticut if the cause of action in question arises “out of tortious conduct [committed] in this state, whether arising out of repeated activity or single acts . . . .” The plaintiffs alleged that the tortious conduct committed by Viking in Connecticut included intentional misrepresentations and fraudulent nondisclosures.

The uncontroverted allegations in the complaint and the affidavits with respect to Viking’s tortious conduct are as follows: After the plaintiffs indicated an interest in learning about Viking’s business opportunities, they received numerous out-of-state communications from agents of Viking. According to these allegations, Viking not only offered to sell private pay telephones to the plaintiffs, but also promised to provide training, to assist in finding locations for installation, and to install the telephones. The promotional material sent by Viking to the plaintiffs, which was attached to their affidavit, supports the plaintiffs’ allegations. One promotional item, entitled “Viking Advantages,” promised in regard to training: “Full training and factory and back-up support to insure your total success at all levels of the industry.” In regard to locations, the same item promised: “High traffic locations, with long term contracts. All your locations will be with your approval.” Additionally, a letter from Jan Kraft, an agent of Viking, states: “You will be hearing from our route coordinator to help you with your route development.”

In their complaint, the plaintiffs alleged that Viking had failed to provide the training and location selection services promised and that none of the telephones had been installed. The plaintiffs also alleged that they had relied on Viking’s representations about the services that Viking would provide and that these representations were false, and were known to have been false, when made.

In response, Viking, in the affidavit of Harris, merely stated: “As a matter of business practice, we do not provide location or installation services. However, if requested, we can provide a list of people in the industry who do provide such services.” (Emphasis added.) Accordingly, Viking never denied that its agents had made such fraudulent promises to the plaintiffs, but merely denied that it was its practice to provide the services allegedly promised.

False representations entering Connecticut by wire or mail constitute tortious conduct in Connecticut under § 33-411 (c) (4). Coan v. Bell Atlantic Systems Leasing International, Inc., 813 F. Sup. 929, 944-45 (D. Conn. 1990); David v. Weitzman, 677 F. Sup. 95, 98 (D. Conn. 1987); Teleco Oilfield Services, Inc. v. Skandia Ins. Co., 656 F. Sup. 753, 758 (D. Conn. 1987); McFaddin v. National Executive Search, Inc., 354 F. Sup. 1166, 1171 (D. Conn. 1973). For example, in Teleco Oilfield Services, Inc. v. Skandia Ins. Co., supra, 756, the plaintiff brought an action alleging breach of an insurance contract and bad faith tortious acts arising from the failure to pay the plaintiffs claim by its insurers, which were several foreign corporations. The United States District Court for the District of Connecticut held, inter alia, that the defendant insurers’ tortious conduct was deemed to have occurred in Connecticut, thereby providing the court with jurisdiction over the defendants under § 33-411 (c) (4), because “the alleged misrepresentations of coverage, both active and passive, would have been made by way of communications sent to and received by [the plaintiff] from the [out-of-state] defendants in Connecticut.” Id., 758. Similarly, in the present case, based on the plaintiffs’ undisputed allegations of misrepresentation by way of telephonic and postal communications sent to and received in Connecticut, Viking engaged in tortious conduct in this state, thereby satisfying § 33-411 (c) (4). We, therefore, hold that the trial court improperly concluded that § 33-411 (c) (4) was not satisfied.

Consequently, the plaintiffs established, pursuant to § 33-411 (c) (4), that Connecticut’s long arm statute was satisfied as to Viking. The case must, therefore, be remanded to the trial court for further proceedings to determine whether Viking had sufficient contacts with Connecticut so as to comport with due process and to resolve the other grounds for dismissal alleged in the defendants’ motion, i.e., forum non conveniens and insufficient service of process.

II

JURISDICTION OVER A NONRESIDENT INDIVIDUAL

The plaintiffs argue that, pursuant to § 52-59b (a) (3) (B), the trial court had jurisdiction over McClelland because he had committed “a tortious act outside the state causing injury to person or property within the state . . . .” (Emphasis added.) Jurisdiction under subsection (a) (3) (B) has the additional requirement that the plaintiff prove that the individual defendant “expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” (Emphasis added.)

Even if we assume that McClelland is an agent vicariously liable for the tortious conduct of Viking, the complaint and affidavits are devoid of any allegations from which it could be determined that McClelland derived substantial revenue from interstate or international commerce. Therefore, the plaintiffs have failed to establish that the court had personal jurisdiction over McClelland.

The judgment of dismissal with respect to Viking is reversed and the case is remanded for further proceedings consistent with this opinion; the judgment of dismissal with respect to McClelland is affirmed.

In this opinion the other justices concurred.

       Against Viking, the plaintiffs alleged common law claims of breach of contract and fraud, in addition to violations of the Connecticut Business Opportunity Investment Act; General Statutes § 36b-60 et seq.; and the Connecticut Unfair Trade Practices Act. General Statutes § 42-110a et seq. The plaintiffs also alleged that McClelland violated both of those acts.

       Although the record fails to indicate the state of its incorporation, Viking is neither incorporated in nor registered to do business in Connecticut. Rather, it has its principal place of business in Illinois. It is also undisputed that McClelland is a nonresident of Connecticut.

       Practice Book § 142 provides in pertinent part: “Any defendant wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.”
      Practice Book § 143 provides in pertinent part: “The motion to dismiss shall be used to assert ... (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and, where appropriate, with supporting affidavits as to facts not apparent on the record.
      “If an adverse party objects to this motion he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.”
      Practice Book § 144 provides in pertinent part: “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss . . . .”

       We note that the defendants failed to file Harris’ affidavit with their motion to dismiss as provided for in § 143. Rather, they submitted the affidavit more than one month later, after the plaintiffs’ memorandum in opposition was filed.

       In their affidavit, the defendants denied that they advertised by way of “card paks.” Accordingly, we do not consider the plaintiffs’ allegations regarding this matter in determining whether Connecticut’s long arm statutes were satisfied.

       “The federal due process clause permits state courts to exercise in personam jurisdiction over a nonresident corporate [or individual] defendant that has certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.
      . . .A state court will have specific jurisdiction over a nonresident defendant whenever the defendant has purposefully directed [its] activities at residents of the forum . . . and the litigation [has] resulted] from alleged injuries that arise out of or relate to those activities .... Alternatively, [e]ven when the cause of action does not arise out of or relate to the foreign corporation’s [or individual’s] activities in the forum State, due process is not offended by a State’s subjecting the corporation [or individual] to its in personam jurisdiction if the defendant has had continuous and systematic general business contacts with the state.” (Citations omitted; internal quotation marks omitted.) Thomason v. Chemical Bank, 234 Conn. 281, 287-88, 661 A.2d 595 (1995).

         General Statutes § 33-411 provides in pertinent part: “(b) Every foreign corporation which transacts business in this state in violation of section 33-395 or 33-396 shall be subject to suit in this state upon any cause of action arising out of such business.
      “(c) Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: (1) out of any contract made in this state or to be performed in this state; or (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state; or (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or single ads, and whether arising out of misfeasance or nonfeasance. . . .”

       General Statutes § 52-59b (a) provides: “As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, or foreign partnership, or his or its executor or administrator, who in person or through an agent: (1) Transacts any business within the state; or (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or (3) commits a tortious act outside the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or (4) owns, uses or possesses any real property situated within the state.”

       This general rule is different with respect to determining whether the court has jurisdiction over a defendant that is served personally or through abode service. In those situations, as opposed to situations where service is constructive, i.e., service on a foreign corporation or nonresident individual by mail, the defendant bears the burden of disproving personal jurisdiction. “ ‘The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer’s return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction. When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the [officer’s] return. . . . ’ 1 Stephenson, Conn. Civ. Proc. (2d Ed.) § 96, p. 390.” Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 53.

       Where the facts necessary to determine jurisdiction are disputed, “due process requires that a trial-like hearing be held, [at the request of either party] in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 56. Furthermore, the trial court must allow a reasonable continuance for discovery when it determines that discovery is warranted. Id., 60.

       The plaintiffs assert that § 33-411 (c) (1), (2) and (4) of the general long arm statute; see footnote 7; and General Statutes §§ 36b-62 (c) and 36b-74 (c) of the Connecticut Business Opportunity Investment Act; see footnote 1; are satisfied, each of which independently provides the court with long arm jurisdiction over Viking. Because we conclude that § 33-411 (c) (4) has been satisfied, we need not address these other statutory provisions.

       If this allegation had been disputed, it would have been appropriate for the plaintiffs to request an evidentiary hearing to resolve the dispute. See footnote 10.

       Although the plaintiffs alleged that Viking committed a tortious act within the state, the plaintiffs rely solely on their assertion that McClelland committed a tortious act outside the state for jurisdiction over McClelland.

       See footnote 8.

       The plaintiffs seek to hold McClelland individually liable as an agent of Viking for its alleged tortious violation of the Connecticut Business Opportunity Investment Act. General Statutes § 36b-61 (4) (“[sjeller means a person who is engaged in the business of selling or offering for sale business opportunities or any agent or representative of such person”).


source: Caselaw Access Project

author: CALLAHAN, J.

license: Public Domain

text:
    RICH-TAUBMAN ASSOCIATES v. COMMISSIONER OF REVENUE SERVICES
    (15236)
    Peters, C. J., and Callahan, Borden, Berdon and Norcott, Js.
    Argued January 10
    officially released April 16, 1996

      Robert M. Dombroff, with whom were Ann M. Siczewicz and, on the brief, Louis B. Schatz, for the appellant (plaintiff).

      Paul M. Scimonelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   CALLAHAN, J.

The issue in this appeal is whether the plaintiff, Rich-Taubman Associates, the agent designated by the city of Stamford to operate and maintain a city-owned parking garage, is exempt from use taxes assessed by the defendant, the commissioner of revenue services (commissioner). The plaintiff claims that the purchases for which the commissioner assessed use taxes were made by it on behalf of the city as the city’s agent and, consequently, are exempt from use tax liability pursuant to General Statutes (Rev. to 1985) § 12-412 (l). The commissioner determined that the plaintiff was not exempt and was liable for use taxes, pursuant to General Statutes (Rev. to 1985) § 12-411, on purchases that it made for use in the maintenance and operation of the city’s parking garage. The commissioner accordingly levied substantial use taxes and penalties against the plaintiff. Thereafter, the commissioner affirmed the assessment, and the plaintiff appealed to the Tax Session of the Superior Court pursuant to General Statutes § 12-422. The court sustained the assessment imposed by the commissioner and rendered judgment dismissing the plaintiffs appeal. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we trar sferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

The question of the plaintiffs use tax liability arises out of the following stipulation of facts entered into by the parties, and the undisputed testimony of the sole witness at trial. On June 30, 1978, the plaintiff, a Connecticut general partnership, entered into a contract with the city of Stamford and the Stamford Parking Authority (parking authority), a municipal agency, to operate and maintain the Stamford Town Center Parking Garage (parking garage), which was owned by the city. The agreement expressly designated the plaintiff as the agent of the parking authority and of the city for purposes of carrying out the city’s duty to maintain and operate the parking garage. As the city’s agent, the plaintiff was required, among other things, to remove waste from the garage, to sweep the grounds of the facility, to inspect and replace lighting fixtures, and to maintain and repair the elevators and escalators and other equipment. The plaintiff was also obligated to provide adequate security and a complete sign system to assist the members of the public in their movement within the garage.

The agreement further provided that: (1) the city was required to reimburse the plaintiff for any expenditures incurred in connection with the operation and maintenance of the parking garage; (2) the city was solely responsible for any taxes that might accrue or arise by reason of the existence and operation of the parking garage; (3) any revenue generated from the operation of the parking garage was to be placed in a trust fund, which was established by the city but administered by the plaintiff, out of which the expenses of the garage were to be paid; (4) parking garage expenses were to include all costs incurred in the operation and regular maintenance of the facility, including all costs for rentals and service contracts; and (5) the plaintiff was entitled to a management fee for the work performed to fulfill its obligations under the contract.

The commissioner conducted an audit of the plaintiff for the period between April 1, 1986, and March 31, 1989. During that period, the plaintiff had made various purchases needed for the operation and maintenance of the parking garage. The commissioner assessed the plaintiff use taxes in the amount of $113,960 on those purchases. The plaintiff thereafter petitioned for a reassessment of the use taxes and requested a hearing before the commissioner. The commissioner, without conducting a hearing, affirmed the assessment by letter dated May 3, 1990. The commissioner also imposed a 10 percent negligence penalty because, in a prior audit, he had addressed the plaintiffs possible exposure to substantial use tax liability for purchases made for the city’s parking garage and the plaintiff allegedly had failed to pay proper attention to its potential liability. The plaintiffs appeal to the trial court followed the commissioner’s affirmation of his assessment.

In the trial court, in addition to relying on a stipulation of facts, the plaintiff presented the testimony of its employee, Carrie Fudge, who was the bookkeeper for the parking garage account. She testified that, between April 1, 1986, and March 31, 1989, all the vendors from whom the plaintiff had purchased goods and services used in maintaining and operating the parking garage had been provided with a tax exemption certificate executed and furnished by the city. The certificate informed the vendors that the plaintiffs purchases were not subject to sales and use taxes pursuant to § 12-411 because those purchases were made for and on behalf of the city. She further stated that, if a vendor’s invoice included a charge for sales and use tax, the vendor had been notified of the plaintiffs status and provided with the necessary certificates of exemption. The vendor then eliminated the tax charge.

The plaintiff argued in the trial court that it was the agent of the city of Stamford, a tax-exempt political subdivision of the state, and that it was charged with fulfilling the city’s municipal obligation to operate and maintain the city-owned parking garage. It claimed, consequently, that any purchases it made as the city’s agent came within the purview of § 12-412 (1) and were exempt from the sales and use tax.

The trial court disagreed with the plaintiffs argument and dismissed its appeal. The court initially conducted a facial examination of § 12-412 (1) and determined that the term “agency” was not synonymous with the term “agent” for purposes of the statutory exemption. The court also reasoned that, had the legislature desired to extend the tax exemption provided by § 12-412 (1) to agents of a tax-exempt political subdivision, it would have done so expressly. The court concluded that the plaintiff was not exempt from the use tax because it was the purchaser of the materials and services used to maintain the city’s parking garage and because it was not a political subdivision of the state or a municipal agency. The trial court then sustained the 10 percent negligence penalty imposed by the commissioner. This appeal followed.

The trial court based its conclusions on the parties’ stipulation of facts, the briefs of the parties, oral arguments and the uncontroverted testimony of the sole witness at trial. We, therefore, are called upon to review the legal conclusions of the trial court. “When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. Practice Book § 4061; United Illuminating Co. v. Groppo, 220 Conn. 749, 752, 601 A.2d 1005 (1992) . . . Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992).

The plaintiff claims that the trial court improperly concluded that the purchases that it made for the city for use in the maintenance and operation of the city-owned parking garage were not exempt from taxation pursuant to § 12-412 (1). In support of its claim, the plaintiff argues that common law principles of agency inform the tax statutes and dictate the conclusion that an agent is entitled to the same use tax exemption that is conferred upon its disclosed principal by § 12-412 (1) for purchases that the agent has made within the scope of its authority. We agree.

We begin by noting the general rule that “[u]nless a statute provides to the contrary . . . principals may act through agents; [1] Restatement (Second), Agency (1958) § 17; and may appoint agents by written or spoken words or other conduct. [1] Restatement (Second), Agency (1958) § 26.” (Citations omitted; internal quotation marks omitted.) Fairfield County National Bank v. DeMichely, 185 Conn. 463, 470-71, 441 A.2d 569 (1981); see State v. Tedesco, 175 Conn. 279, 287, 397 A.2d 1352 (1978) (principal may delegate to agent all that he himself can do except acts peculiarly personal or required by statute to be performed personally by principal). From this, it follows that “[a] principal is generally hable for the authorized acts of his agent; 1 Restatement (Second), Agency § 140, p. 349 (1958) . . . .” Gateway Co. v. DiNoia, 232 Conn. 223, 240, 654 A.2d 342 (1995). To avoid personal liability, an agent must disclose to the party with whom he deals both the fact that he is acting in a representative capacity and the identity of his principal. Klepp Wood Flooring Corp. v. Butterfield, 176 Conn. 528, 532-33, 409 A.2d 1017 (1979); see 2 Restatement (Second), Agency § 328 (1958). Accordingly, “the agent is not liable where, acting within the scope of his authority, he contracts with a third party for a known principal.” Scribner v. O’Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975); see Behlman v. Universal Travel Agency, Inc., 4 Conn. App. 688, 690, 496 A.2d 962 (1985) (“[a]n agent, by making a contract only on behalf of a competent disclosed principal whom he has the power to bind, does not thereby become liable [on the contract] for [the principal’s] nonperformance”). Under the rules of agency, “[u]nless otherwise agreed, a person making or purporting to make a contract with another as agent for a disclosed principal does not become a party to the contract.” 2 Restatement (Second), Agency § 320 (1958).

The plaintiff argues that we should apply these common law principles to § 12-412 (1), thereby permitting it to claim the exemption from use tax liability on purchases made for the city pursuant to its contractual obligation to the city and within the scope of its agency relationship with the city. We have repeatedly observed that traditional common law principles can inform the General Statutes and can assist us in determining how the statutes are to be interpreted and applied. See, e.g., Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991) (“ ‘[i]n seeking to discern that [legislative] intent, we look to . . . common law principles governing the same general [area] . . .’ ”); Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987) (same).

Applying the law of agency to the tax statutes, we conclude that the plaintiff, concededly acting as the city’s agent when purchasing materials and services for the parking garage, is not hable for use taxes on purchases made within the scope of its authority. Section 12-412 (1) should not be read to impose use tax liability on purchases that otherwise would be exempt from taxation merely because the city, in the interest of economy and efficiency, has appointed an agent to procure the materials and services necessary to ensure the successful and efficient operation of its parking garage. Although mindful that exemptions are matters of legislative grace and are to be construed strictly against the taxpayer; Plastic Tooling Aids Laboratory, Inc. v. Commissioner of Revenue Services, 213 Conn. 365, 369, 567 A.2d 1218 (1990); we are not persuaded that § 12-412 (1) should be read so narrowly as to preclude the agent of a disclosed tax-exempt principal from utilizing the exemption provided by that statute. Section 12-412 (1) does not abrogate the common law rule of agency that the actions of an agent, who is acting for a disclosed principal, are, as a matter of law, the actions of the principal. See Gateway Co. v. DiNoia, supra, 232 Conn. 240; Ray v. Isbell, 64 Conn. 307, 309, 29 A. 538 (1894). We conclude that § 12-412 (1) does not require that a distinction for purposes of the use tax be drawn between a purchase by the tax-exempt municipality itself and a similar purchase for the tax-exempt municipality by its agent. Logically, in each instance, the § 12-412 (1) exemption from use tax liability should apply.

In this instance, our conclusion is supported by the express terms of the agreement between the city and the plaintiff, which make the city responsible for all taxes arising out of the existence and operation of the parking garage. Thus, if we were to conclude that the plaintiff is ineligible for the § 12-412 (1) exemption, the city, in effect, would lose its statutory tax exemption and be subject to use tax liability. Such a result was clearly not the legislature’s intention in enacting § 12-412 (1). It is axiomatic that a statute, even one providing for a tax exemption, should not be construed to effectuate a bizarre or irrational result. See LoPresto v. State Employees Retirement Commission, 234 Conn. 424, 450, 662 A.2d 738 (1995); State v. Jimenez, 228 Conn. 335, 341, 636 A.2d 782 (1994). It would be irrational to require the city to expend public trust funds to pay use taxes, contrary to the legislative intent, simply because the city acted by and through its designated agent.

The commissioner contends, nonetheless, that our holdings in American Totalisator Co. v. Dubno, 210 Conn. 401, 555 A.2d 414 (1989), White Oak Corp. v. Dept. of Revenue Services, 198 Conn. 413, 503 A.2d 582 (1986), and Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 362 A.2d 847 (1975), govern this case. Those cases, the commissioner argues, mandate the conclusion that, regardless of the plaintiff’s uncontroverted status as the city’s agent, the plaintiff was the consumer of the goods and services that it purchased for use in the maintenance and operation of the city’s parking garage. The commissioner insists, therefore, that the plaintiff cannot claim the benefit of the § 12-412 (1) exemption. We, however, do not read those cases to stand for the proposition that the agent of a tax-exempt municipality is ineligible for the exemption afforded its disclosed principal. In each of the cases relied upon by the commissioner, the taxpayer was not designated, nor was the taxpayer found to be, the agent of the tax-exempt entity; rather, each taxpayer was an independent contractor simply purchasing materials or services necessary to the fulfillment of its own contractual obligations to a tax-exempt entity.

In American Totalisator Co. v. Dubno, supra, 210 Conn. 403, the taxpayers contracted with the state to provide personal property, training, personnel and services to establish systems necessary for the state to conduct its lottery, teletrack and off-track betting enterprises. To fulfill its contract, the taxpayers purchased computer components, computer terminals, paper stock and other tangible items. Id. The commissioner assessed the taxpayers a use tax on those items and the taxpayers contested the imposition of the tax. We determined that the taxpayers were hable for the use tax, concluding that “[w]here, as here, the primary function and purpose of the taxpayers was to provide wagering systems and the ownership, use and maintenance of certain personal property and equipment were necessary to enable them to furnish those systems, those taxpayers, not the state, were the ultimate users or consumers of that property and equipment within the meaning of the sales and use tax statutes.” Id., 410. We also concluded that the taxpayers’ purchases “were incidental to the primary purpose of the contracts which was to provide the state with wagering systems.” Id., 409.

In White Oak Corp. v. Dept. of Revenue Services, supra, 198 Conn. 415, the taxpayer entered into a contract with the state to construct various highways and bridges throughout the state. Under the terms of the contracts, the taxpayer was obligated to provide watchmen, trafficmen and flagmen at each location, as well as to rent highway flashers to be placed along the roadside. Id. We determined that the taxpayer was liable for a sales and use tax on those items, concluding that “the services and rentals in question were incidental to the [taxpayer’s] performance of the construction contracts . . . [and, therefore,] the [taxpayer] ‘used’ them to fulfill its contracts.” Id., 423.

Similarly, in Fusco-Amatruda, Inc. v. Tax Commissioner, supra, 168 Conn. 599, we determined that purchases of construction materials by a general contractor who was obligated to build an apartment complex for a charitable organization were subject to a use tax, despite the exemption from use tax liability provided the charitable organization pursuant to then § 12-412 (h), now § 12-412 (8). We concluded that the general contractor had procured the materials not as the agent of the charity, but to satisfy its own obligation to build the apartment complex and, therefore, the contractor, rather than the charitable organization, was the consumer of the materials used and was subject to use tax liability. Id., 600-601.

Unlike the taxpayers in those cases, the plaintiff in this case was expressly designated to be the city’s agent for the maintenance and operation of the city-owned parking garage. Further, all purchases were made for the city and were used exclusively for the city’s benefit. Moreover, the plaintiff disclosed its agency relationship to every vendor with whom it had dealt by delivering to each vendor a certificate of tax exemption executed and supplied by the city. In addition, all purchases made by the plaintiff were paid for with moneys from a trust fund that the city had established for the sole purpose of financing the operation and maintenance of the parking garage. It is evident, therefore, that the plaintiff and the city, both contractually and in actuality, maintained a disclosed principal-agent relationship that made the acts of the agent acting within the scope of its authority the acts of the principal. See Gateway Co. v. DiNoia, supra, 232 Conn. 240; Ray v. Isbell, supra, 62 Conn. 309; Bank of Montreal v. Gallo, 3 Conn. App. 268, 272, 487 A.2d 1101 (1985). Furthermore, the plaintiff, having effected its purchases for the city with the city’s moneys and as the city’s disclosed agent, did not, and could not, exercise the rights over its purchases incident to ownership that define a “use” subject to the use tax as contemplated by § 12-411. See General Statutes § 12-407 (5).

We conclude, therefore, that the plaintiff is entitled to claim the § 12-412 (1) use tax exemption provided a political subdivision of the state for the purchases it made on behalf of the city of Stamford for use in the maintenance and operation of the city’s parking garage. Accordingly, the judgment of the trial court with respect to the imposition of use tax liability on the plaintiff pursuant to § 12-411 cannot be sustained.

In light of this conclusion, we must also reverse that portion of the trial court’s judgment sustaining the imposition of the 10 percent penalty for negligence.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs appeal.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1985) § 12-412 provides in relevant part: “Exemptions. Taxes imposed by this chapter shall not apply to the gross receipts from the sale of and the storage, use or other consumption in this state with respect to the following items:
      “(1) The United States, the state or subdivisions. Sales of tangible personal property or services to the United States, the state of Connecticut or any of the political subdivisions thereof, or its or their respective agencies.”

       General Statutes (Rev. to 1985) § 12-411 provides in relevant part: “The use tax. (1) Imposition and rate. An excise tax is hereby imposed on the storage, acceptance, consumption or any other use in this state of tangible personal property purchased from any retailer for storage, acceptance, consumption or any other use in this state or the acceptance or receipt of any services constituting a sale in accordance with subdivision (i) of subsection (2) of section 12-407, at the rate of seven and one-half per cent of the sales price of the property or the consideration paid for any such services.
      “(2) Liability for tax. Every person storing, accepting, consuming or otherwise using in this state services or tangible personal property purchased from a retailer is liable for the tax. His liability is not extinguished until the tax has been paid to this state, except that a receipt from a retailer engaged in business in this state or from a retailer who is authorized by the commissioner, under such regulations as he may prescribe, to collect the tax and who is, for the purposes of this chapter relating to the use tax, regarded as a retailer engaged in business in this state, given to the purchaser pursuant to subsection (3) of this section is sufficient to relieve the purchaser from further liability for the tax to which the receipt refers.”

       General Statutes § 12-422 provides in relevant part: “Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services . . . may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain . . . .”

       The agreement provided that the city was to become the successor to the parking authority on July 1,1978, and that the city agreed to be bound by all provisions contained in the agreement pertaining to the parking authority. Therefore, for puiposes of trial and appeal, the parties have treated the plaintiffs designation as the agent of the parking authority the same as its being the agent of the city.

       The plaintiff claimed alternatively that the goods and services purchased by it were resold to the city and that, consequently, it is exempt from use tax liability pursuant to General Statutes § 12-407 (5), which defines use to exclude goods purchased for resale in the regular course of business. See footnote 6. The plaintiff renews this claim in this appeal. Because of our resolution of the applicability of the exemption provided in § 12-412 (1), we need not address this issue.

       General Statutes § 12-407 (5) states that use “includes the exercise of any right or power over tangible personal property incident to the ownership of that property, except that it does not include the sale of that property in the regular course of business.”


author: PETERS, C. J. BERDON, J.,

text:
    AGNES FRASER, EXECUTRIX (ESTATE OF HECTOR FRASER) v. UNITED STATES OF AMERICA
    (15035)
    Peters, C. X, and Callahan, Borden, Berdon and Katz, Js.
    Argued December 5, 1995
    officially released April 16, 1996

      Michael P. Koskoff, with whom was Mark C. Durkin, for the appellant (plaintiff).

      Carl J. Schuman, assistant United States attorney, with whom were John B. Hughes, assistant United States attorney, and, on the brief, Christopher F. Droney, United States attorney, and Nancy L. Griffin, assistant United States attorney, for the appellee (defendant).

      Richard Blumenthal, attorney general, and Susan Quinn Cobb, assistant attorney general, filed a brief for the department of mental health and addiction services as amicus curiae.

      William I. Garfinkel, Brian R. Shagan and James Smart, law student intern, filed a brief for the Mental Health Association of Connecticut, Inc., as amicus curiae.

      Lansing E. Crane filed a brief for the Connecticut Psychiatric Society as amicus curiae.

      Thomas A. Behrendt, William Emmett Dwyer and William B. Wynne filed a brief for the Center for Independent Living of Southwestern Connecticut et al. as amici curiae.
   PETERS, C. J.

In this case, certified from the United States Court of Appeals for the Second Circuit, we have agreed to decide whether, in the circumstances presented herein, psychotherapists undertaking the treatment of a psychiatric outpatient assumed a duty to exercise control over the patient to prevent the patient from committing an act of violence against a third person. The plaintiff, Agnes Fraser, executrix of the estate of Hector Fraser, brought an action in the United States District Court for the District of Connecticut against the defendant, the United States of America, acting through its employees at the West Haven Veterans Administration Medical Center (medical center). The plaintiff alleged that she was entitled to damages, under the Federal Tort Claims Act; 28 U.S.C. § 2671 et seq.; because the medical center’s negligent treatment of John Doe, an outpatient there, resulted in the fatal stabbing of her decedent. The plaintiff claimed that the medical center was negligent in its treatment of Doe because it had failed to warn others of his violent propensities and had failed to take reasonably necessary actions to control him in order to protect others. The District Court granted the defendant’s motion for summary judgment because, in its view of the undisputed facts, the medical center owed no duty to the plaintiffs decedent. The plaintiff appealed to the United States Court of Appeals for the Second Circuit, which agreed with the District Court that the medical center had no duty to warn the plaintiffs decedent, but asked this court to decide whether the medical center had a duty to control Doe’s conduct to avoid harm to the plaintiffs decedent. Pursuant to the applicable certification procedures; General Statutes § 51-199a; we agreed to decide this issue. We conclude that the medical center had no duty to control its outpatient, Doe, to avoid personal injury to unidentifiable third persons such as the plaintiffs decedent and, therefore, answer the certified question in the negative.

The record before the District Court establishes the following undisputed facts. Doe had a longstanding, friendly relationship with the plaintiffs decedent, Hector Fraser (Fraser). When Doe was a teenager, he worked at a floor covering store that Fraser then owned. After Doe’s release from military service, he again worked for Fraser as a carpet installer. Both before and after his military service, Doe was a frequent visitor to the Fraser home. Although Doe spoke repeatedly of spies and carried a buck knife, he never threatened Fraser or any other member of the Fraser family. Nonetheless, on June 17,1985, without apparent provocation, Doe stabbed Fraser approximately forty times and Fraser died the next day as a result of the stabbing.

At the time of the assault on Fraser, Doe was being treated as a psychiatric outpatient at the medical center. Doe’s history of psychiatric care began while he was serving in the United States Marine Corps. He was discharged from the military in 1974 after being diagnosed as having schizo-affective schizophrenia manifested by paranoid delusions. Because of his psychosis and the accompanying delusions of violence, Doe thereafter was continuously under psychiatric care, sometimes for brief periods as an inpatient, but otherwise as an outpatient. Doe was an outpatient at the medical center from September, 1979, until the fatal assault on Fraser in 1985. Throughout his psychiatric therapy, Doe suffered from a variety of delusions, believing himself to be engaged in secret spy missions and in violent confrontations involving fights and killings. Doe’s medical center records documented that he harbored these delusions, but documented no acts of violence or even threats on his part. They also documented his regular attendance at scheduled therapy sessions.

The medical center’s records included information that Doe, in the past, had carried a knife and loaded guns. In 1976, he was arrested for carrying two loaded guns and a knife. His psychotherapists had advised him to get rid of these weapons. Furthermore, Fraser’s son had observed Doe carrying knives “as far back as 1981,” but he had never known Doe to threaten Fraser or any other member of the Fraser family.

On June 6, 1985, Doe informed medical center staff members that he had stopped taking Haldol, his prescribed neuroleptic medication. His doctors persuaded him to take another neuroleptic, Trilafon, and told him to return in one week or sooner. On June 13,1985, Doe appeared at the medical center as scheduled. At that appointment, he reported that he was feeling and sleeping better as a result of taking the new medication. Staff members were unaware of any deterioration in Doe’s mental condition. Four days later, he committed the fatal assault on Fraser.

On this record, the Court of Appeals upheld the determination of the District Court that the plaintiff could not prevail on her claim that the medical center had a legal duty to warn Fraser that Doe would commit an act of violence against him. The Court of Appeals held that, “in the absence of any objective indicia of a patient’s propensity to cause harm,” summary judgment had properly been granted on this cause of action. The Court of Appeals reserved for us, however, the merits of the plaintiffs alternate cause of action premised on a breach of a duty to control, and this is the basis for the certified question that we agreed to answer.

The question that we certified is whether, in the circumstances of this case, a psychotherapist has a duty to control an outpatient to prevent the outpatient from causing harm to a third person. In its broader form, the certified question addresses the legal consequences of outpatient psychotherapy, specifically whether the relationship between a psychotherapist and an outpatient is properly characterized as the kind of special custodial relationship that imposes on the psychotherapist the duty to control the behavior of the outpatient to prevent the outpatient from causing bodily harm to third persons. See Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 431, 551 P.2d 334, 131 Cal. Rptr. 14 (1976) (imposing duty on psychiatrists to protect foreseeable victims of outpatient); see also 2 Restatement (Second), Torts § 319 (1965). In its narrower form, the certified question addresses the legal consequences of the psychotherapists’ failure to control the behavior of an outpatient in the circumstances of this case.

Common law prudence counsels that we should refrain from deciding the broader question. As the Court of Appeals observed in certifying the question of law to us in this case, litigation of this kind does not arise frequently. We have no compelling precedents on which to draw, and courts in other jurisdictions have not arrived at a consensus. Finally, even if we were to resolve the broader question in favor of recognizing a special relationship, we would still have to decide the narrower question of the scope of the duty arising from such a relationship. We, therefore, will confine our discussion to the question of whether a psychotherapist has a duty to exercise control to prevent an outpatient, who was not known to have been dangerous, from inflicting bodily harm on a victim who was neither readily identifiable nor within a foreseeable class of victims.

Our decision is premised on these factual circumstances because they are the circumstances that have been found to exist in the relevant decision of the federal court in this case. In deciding that the plaintiff had failed to establish a factual predicate for a duty to warn, the Court of Appeals expressly concluded that the record demonstrated “the absence of any objective indicia of [Doe’s] propensity to cause harm.” The Court of Appeals rejected the plaintiffs argument that a jury question was raised by expert testimony that suggested that Doe’s psychotherapists should have engaged in a more searching inquiry to discover that Doe had become dangerous either to himself or to others. In effect, the Court of Appeals upheld the conclusion of the District Court that “even viewing the facts most favorably to the plaintiff on the defendant’s motion for summary judgment, the evidence did not show that it was foreseeable that Doe would commit an act of violence against [Fraser].” For the purpose of deciding the certified question of law, namely, whether, in the circumstances of this case, the psychotherapists had a duty to control Doe, we take the underlying facts and circumstances to be the same as those that the federal court concluded were determinative with respect to the psychotherapists’ duty to warn.

Turning now to the merits of the certified question, we are persuaded that, as a matter of law in the circumstances of this case, the medical center psychotherapists had no duty to exercise control over Doe to prevent him from assaulting Fraser. We reach this conclusion for four reasons: (1) our decisions defining negligence do not impose a duty to those who are not identifiable victims; (2) in related areas of our common law, we have concluded that there is no duty except to identifiable persons; (3) policy reasons inherent in the psychotherapeutic relationship and in the due process rights of mental patients counsel against imposing expansive duties to exercise control over such patients; and (4) courts in other jurisdictions have overwhelmingly declined to extend any duty to control to encompass harm to unidentifiable third persons.

Existing Connecticut precedents impose only a limited duty to take action to prevent injury to a third person. Our point of departure has been that “absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another. See 2 Restatement (Second), Torts § 315 (1965); F. Harper, F. James & O. Gray, The Law of Torts (2d Ed. 1986) § 18.7; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 56.” Kaminski v. Fairfield, 216 Conn. 29, 33-34, 578 A.2d 1048 (1990); see also Dennison v. Klotz, 12 Conn. App. 570, 578-79, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988). In 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.” (Citations omitted; internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 385-86, 650 A.2d 153 (1994).

In only one instance has this court considered what relationships might trigger a special duty of care to protect third parties from personal harm. In Kaminski v. Fairfield, supra, 216 Conn. 34-37, we looked to § 319 of the Restatement (Second), Torts, supra, and to Tarasoff v. Regents of University of California, supra, 17 Cal. 3d 431, and its progeny, for guidance as to what might constitute such a special relationship. For present purposes, it is significant that we described the duty first articulated in Tarasoff and further refined in Thompson v. County of Alameda, 27 Cal. 3d 741,752-53, 614 P.2d 728, 167 Cal. Rptr. 70 (1980), as a duty arising out of “a psychotherapist’s knowledge of a patient’s specific threats against a specific victim, whom the patient subsequently killed.” Kaminski v. Fairfield, supra, 37. Our conclusion in Kaminski that the injured third party had not established a duty to protect him from physical harm rested in part on the fact that he, unlike the victim in Tarasoff, “was not a specifically identifiable victim.” Id. We therefore have no precedent for imposing a duty on psychotherapists to exercise control over an outpatient in the absence of a showing that the victim was either individually identifiable or, possibly, was either a member of a class of identifiable victims or within the zone of risk to an identifiable victim.

Related areas of Connecticut negligence law provide support for the proposition that proof that the victim was an identifiable target is ordinarily an essential element of an action in negligence. As a common law matter, to impose liability on a municipal employee who presumptively enjoys immunity in the performance of discretionary governmental acts, a plaintiff must show the existence of circumstances that “make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . .” (Emphasis added; internal quotation marks omitted.) Mulligan v. Rioux, 229 Conn. 716, 728, 643 A.2d 1226 (1994), on remand, 38 Conn. App. 546, 662 A.2d 153 (1995); Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994); Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979). As a statutory matter, although numerous changes in tort law have affected the remedies that may be recovered for breach of duty, none has enlarged the scope of liability in negligence to injured third parties. See, e.g., General Statutes § 52-572h.

Considerations of public policy, which undergird the judicial determination of the scope of duty in the law of negligence, likewise suggest that psychotherapists should not be held liable to third parties who are not foreseeable victims. In addressing the third party liability of attorneys for the negligent execution of estate planning documents, we have balanced the interests of intended beneficiaries against the interests of the legal profession in honoring the ethical obligations owed by attorneys to their clients. See Krawczyk v. Stingle, 208 Conn. 239, 244-46, 543 A.2d 733 (1988) (no liability to intended beneficiary for negligent delay in drafting estate planning documents). We deem it equally appropriate to balance the interests of those injured by psychiatric outpatients against the interests of the mental health profession in honoring the confidentiality of the patient-therapist relationship; see General Statutes §§ 52-146d through 52-146j; and in respecting the humanitarian and due process concerns that limit the involuntary hospitalization of the mentally ill. See State v. Warren, 169 Conn. 207, 215-16, 363 A.2d 91 (1975); see also General Statutes §§ 17a-498 and 17a-502; Payne v. Fairfield Hills Hospital, 215 Conn. 675, 684, 578 A.2d 1025 (1990). Whatever that balancing process may indicate in other circumstances, it counsels against the imposition of liability for harm to unidentifiable victims or unidentifiable classes of victims of outpatients with no history of dangerous conduct or articulated threats of dangerous behavior. See note, “Duty to Warn Versus Duty to Maintain Confidentiality: Conflicting Demands on Mental Health Professionals,” 20 Suffolk U. L. Rev. 579, 612-13 (1986); V. Mangalmurti, “Psychotherapists’ fear of Tarasoff: all in the mind?,” 22 J. Psychiatry & L. 379 (1994); C. Meyers, “Where the protective privilege ends: California changes the rules for dangerous psychotherapy patients,” 19 J. Psychiatry & L. 5, 26-27 (1991); R. Schopp, “The Psychotherapist’s Duty to Protect the Public: The Appropriate Standard and the Foundation in Legal Theory and Empirical Premises,” 70 Neb. L. Rev. 327, 350-60 (1991).

Finally, state courts in other jurisdictions have overwhelmingly concluded that an unidentifiable victim has no claim in negligence against psychotherapists who were treating the assailant on an outpatient basis. Some state courts have entirely rejected this duty, as identified in Tarasoff, and have held that psychotherapists treating outpatients have no liability whatsoever to third persons injured by their outpatients. See, e.g., Santa Cruz v. Northwest Dade Community Health Center, Inc., 590 So. 2d 444, 445 (Fla. App. 1991), review denied, 599 So. 2d 1278 (Fla. 1992); Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823, 834-35 (1995); Nasser v. Parker, 249 Va. 172, 179-80, 455 S.E.2d 502 (1995). Even courts that have not rejected Taras off outright, however, have generally not required psychotherapists to take remedial measures for the protection of victims who were not either specifically identifiable or within a class of foreseeable victims. See, e.g., Hamman v. County of Maricopa, 161 Ariz. 58, 64, 775 P.2d 1122 (1989) (victim within identifiable zone of danger); Thompson v. County of Alameda, supra, 27 Cal. 3d 752-53 (specifically foreseeable and readily identifiable victim); Naidu v. Laird, 539 A.2d 1064, 1073 (Del. 1988) (victim within foreseeable class); Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 531, 513 N.E.2d 387 (1987), cert. denied, 485 U.S. 905, 108 S. Ct. 1077, 99 L. Ed. 2d 236 (1988) (specifically identifiable victim); Evans v. Morehead Clinic, 749 S.W.2d 696, 699 (Ky. App. 1988) (readily identifiable victim); Furr v. Spring Grove State Hospital, 53 Md. App. 474, 489, 454 A.2d 414 (1983) (readily identifiable victim); Hinkelman v. Borgess Medical Center, 157 Mich. App. 314, 321, 403 N.W.2d 547, appeal denied, 428 Mich. 905 (1987) (readily identifiable victim); Kerrville State Hospital v. Clark, 900 S.W.2d 425, 437 n.13 (Tex. App.) (victim within foreseeable zone of danger), writ granted, 39 Tex. Sup. Ct. J. 107 (1995); Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 67-68, 499 A.2d 422 (1985) (identifiable victim); but see, e.g., McIntosh v. Milano, 168 N.J. Super. 466, 489-90, 403 A.2d 500 (1979) (any intended or potential victim); Schuster v. Altenberg, 144 Wis. 2d 223, 234-38, 424 N.W.2d 159 (1988) (anyone injured by patient’s dangerous tendencies).

These considerations persuade us that, in the circumstances of this case, the medical center owed no duty to control Doe so as to prevent Doe’s assault on Fraser. The medical center neither knew nor had reason to know that Doe would attack Fraser because Fraser was not an identifiable victim, a member of a class of identifiable victims or within the zone of risk to an identifiable victim.

The answer to the certified question is: No.

No costs shall be taxed in this court to either party.

In this opinion CALLAHAN, BORDEN and KATZ, Js., concurred.

BERDON, J.,

dissenting. In this very unusual case, we are asked by the United States Court of Appeals for the Second Circuit to determine whether, under Connecticut law, there is a “general duty on the part of a psychotherapist to control a patient being treated on an outpatient basis in order to prevent harm to third persons?”

In its initial order (order) requesting that we accept the certified issues, the Court of Appeals explained that the rendering of a summary judgment by the United States District Court for the District of Connecticut raised two issues under Connecticut law: (1) whether a psychotherapist has a duty to warn; and (2) whether a psychotherapist has a duty to control. With respect to the duty to warn, the Court of Appeals wrote in its order: “The plaintiff asserts that her claim premised on the duty to warn should reach the jury because she presented expert opinion testimony to the effect that the psychiatric staff at [the West Haven Veterans Administration Medical Center (medical center)] would have discovered a threat of harm to [the victim, Hector Fraser,] if the staff had asked [the patient, John Doe,] the right questions. However, in the absence of any objective indicia of a patient’s propensity to cause harm, we are unwilling to conclude that, under Connecticut tort law, a claim alleging a breach of a duty to warn should reach a jury solely on the basis of expert opinion testimony suggesting that more searching questioning by the . . . psychotherapist would have revealed the patient’s otherwise unforeseeable potential for harm.” Upon receiving the order, we requested that the Court of Appeals furnish us with a factual predicate upon which the certified issue may be decided. In response, and because this case comes to the appellate courts by way of summary judgment, the parties entered into a “joint statement of relevant factual circumstances” (stipulation). Because the stipulation was furnished in response to our request, and was specifically approved by the Court of Appeals, that court clearly indicated that we were to decide this case on the facts as set forth in the stipulation.

What is troubling, however, is that the approved stipulation entered into by both parties does not support the factual conclusion on which the Court of Appeals rejected the plaintiffs duty to warn cause of action — that is, the claim was rejected because of the court’s conclusion that there was no objective indicia of Doe’s propensity to cause harm. The majority of this court, in its curious rush to embrace this conclusion, looks solely to the order of the Court of Appeals, and ignores the facts set forth in the stipulation. In doing so, this court frames the issue as a rhetorical question: “[WJhether a psychotherapist has a duty to exercise control to prevent an outpatient, who was not known to have been dangerous, from inflicting bodily harm on a victim who was neither readily identifiable nor within a foreseeable class of victims?” The approved stipulation of the parties, however, contradicts the factual premises that the majority relies upon in reaching its conclusion. The questions of whether Doe had apropensity for violence and whether Fraser was a foreseeable victim are genuine issues of fact to be resolved by the trier. “ ‘Summary judgment procedure is designed to dispose of actions in which there is no genuine issue as to any material fact.’ ” Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971); see also Fed. R. Civ. P. 12 (c) and 56. Consequently, the granting of the defendant’s motion for summary judgment was improper in this instance.

From 1974 to the time he fatally stabbed Fraser, Doe was continuously treated by the medical center on both an inpatient and an outpatient basis. The objective indicia of Doe’s propensity to cause harm prior to his fatal stabbing of Fraser on June 17, 1985, which the Court of Appeals and this court find missing, is clearly set forth in the stipulation. The stipulation provides: “Doe’s psychiatric illness was first diagnosed in May, 1974, while he was in the Marines, as ‘schizo-affective schizophrenia’ by the Evans Mental Hygiene Clinic in Okinawa. ... A portion of Doe’s medical records for [the period from May, 1974, through September, 1979,] describe[s] him to be suffering ‘from a mental illness of psychotic proportions’ . . . and having ‘a very complex system of delusions involving his role as a special agent and a spy.’ . . . Doe’s diagnoses included, inter alia, schizophrenia, paranoid schizophrenia, and chronic paranoid schizophrenia. . . . Doe’s medical records since May, 1974, detail many incidents where Doe describes himself as being involved in ‘secret missions . . . for the [Central Intelligence Agency] and [the Federal Bureau of Investigation] involving secret rendezvous, stakeouts and top secret investigations’ . . . and in violent confrontations, fights and killings involving knives and guns. Doe believed himself to be involved with the Mafia or to be [Frank] Serpico. . . . Doe’s therapists believed that these events were part of Doe’s delusional thinking. . . . [0]ne of Doe’s medical records from [the medical center] in September, 1974, states: ‘So far as is known, no behavioral acts of violence have occurred, however, the patient was noted in the service to go to the backs of theaters or other places and when inquiring about what he was doing at these places he reported that he was waiting for contacts so that at least to some extent this delusional system at times spilled over into behavior.’ . . . Doe is described as dressing in unusual manners (i.e., ‘superfly clothes,’ army fatigues, long coats). . . . Doe’s sister . . . reported incidents where she found Doe laughing out loud for no apparent reason while eating raw meat and holding a gun. ... In September, 1976, Doe was arrested for carrying two loaded guns and a knife. . . .A hospital summary dated September 9,1979, states that Doe had begun keeping loaded guns close to his bed and had carried them in public places since the early 1970s.” (Emphasis added.) These stipulated facts clearly reflect objective indicia of Doe’s propensity to act on his delusions of violence and to harm others.

Furthermore, evidence that Doe’s victim should have been foreseeable to the psychotherapists at the medical center was also clearly articulated in the stipulation. “The [medical center’s] doctors knew that Doe possessed weapons and carried a knife and loaded guns because Doe’s medical records make reference to such conduct. Doe’s doctors cautioned him about the dangers associated with guns and/or advised him to get rid of them. . . . Doctors [James] Alexander and [Robert] Granacher [psychiatric experts retained by the plaintiff] have opined that in the months (April and May) and the weeks preceding the homicide, Doe’s psychiatric condition was in a state of decompensation (Granacher testified ‘massive decompensation’), he was psychotic, and, had the [medical center’s psychiatric staff] asked the necessary questions as to how Doe was feeling — if he was psychotic or having delusions and what he was thinking — they would have discovered his state of decompensation. Doctor [Francis] Hamilton [a third psychiatrist who observed Doe, though not retained by the plaintiff as an expert] testified that on June 17, 1985, Doe was clearly psychotic. . . . Doctor Hamilton identified certain changes in Doe’s life and emotional state in the weeks preceding the homicide, (Doe’s medication was changed to Trilafon after he reported he had stopped taking Haldol, he had trouble sleeping, he became more convinced that Hector Fraser was part of a British plot). . . . Doctors Granacher and Alexander identified these factors as signs of decompensation. . . . Doctors Alexander and Granacher were of the opinion that Doe was potentially violent, a danger to others around him and that the [medical center] should have known of the dangers he posed. . . . Doctor Alexander opined that Hector Fraser, a Scottish immigrant, was an identifiable victim of what he opined was Doe’s violent propensity. . . . Doctor Granacher opined that it was predictable that Doe would become violent [on or] about June 17, 1985, because of the amount of time it takes for the medication Doe had stopped taking approximately two and one-half weeks before the homicide to leave his body.” (Emphasis added.)

I find it difficult to understand the analysis of the Court of Appeals, and even more so, I find it difficult to understand this court’s conclusion. Certainly, neither this court nor the Court of Appeals wants to imply that before a patient is deemed to have a propensity for violence, he or she must have actually caused harm to another. Objective indicia of an individual’s propensity to do violence to another may be revealed in forms other than specific acts or threats of violence. In this case, the medical center’s well documented record indicates that Doe’s habit of carrying a hunting knife (the weapon that was used by Doe to stab Fraser forty times) and loaded guns was known. Also known was the fact that Doe suffered from and acted on his delusions of being engaged in secret spy missions and in violent confrontations involving fights and killings. Surely, a reasonable psychotherapist should have recognized Doe as an individual with a propensity for violence. Additionally, Doe’s belief that Fraser was involved in a British espionage plot, under the circumstances of this case, identified Fraser as a foreseeable victim. This court should not compound the mistake of the Court of Appeals by blindly accepting that court’s conclusion with respect to Doe’s propensity to cause harm when such a conclusion is at odds with the stipulation of facts upon which we were specifically requested to decide the certified issue. Accordingly, there is sufficient evidence for a jury to conclude that Doe had a propensity for violence and that Fraser was a foreseeable victim.

In light of the facts of this case, I would reframe the issue as follows: Whether a psychotherapist has a duty to exercise control to prevent an outpatient, who has a propensity to cause harm, from inflicting bodily harm on a victim who was identifiable or was within a class of foreseeable victims? Although the majority does not definitively answer this question, I would assume that, as framed above, their answer would be yes. In other words, a psychotherapist has a duty to third persons to control the conduct of his or her patient when the psychotherapist knows or should know that the patient’s dangerous propensities present a foreseeable risk of harm to others. As set forth in § 315 of the Restatement (Second) of Torts, an individual has this duty if “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 a special relation exists between the actor and the other which gives to the other a right to protection.” Unlike the situation in Kaminski v. Fairfield, 216 Conn. 29, 36, 578 A.2d 1048 (1990), where the court held that under § 319 of the Restatement (Second), supra, a relationship between a parent and an adult child did not constitute a special relationship as contemplated in § 315, the relationship in this case between the medical center’s treating psychotherapists and Doe does constitute such a relationship. Consequently, this case presents an occasion for this court to adopt the principle embodied in § 315.

Many jurisdictions have recognized a duty on the part of psychotherapists to control the potentially dangerous conduct of their patients. In a case in which the fact pattern is similar to the one presently before this court, a patient had been treated as an outpatient for eighteen months. Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn. 1984). After missing a number of scheduled appointments and refusing to take his prescribed medication, the patient entered a restaurant and shot and killed the victim in “an unprovoked and random attack.” Id. The Lundgren court held that “[c]lose questions on foreseeability should be given to the jury. ... A jury could also conclude that [the patient] presented a danger to the public when armed with the handguns that figured so largely in his psychosis and that someone in [the treating physician’s] position should have foreseen that harm to a member of the public might result.” Id., 28-29. Several other jurisdictions have imposed a duty upon psychotherapists treating patients on an outpatient basis. See, e.g., Lipari v. Sears, Roebuck & Co., 497 F. Sup. 185, 193 (D. Neb. 1980) (“the relationship between a psychotherapist and his patient gives rise to an affirmative duty for the benefit of third persons . . . [requiring] that the therapist initiate whatever precautions are reasonably necessary to protect potential victims of his patient”); McIntosh v. Milano, 168 N.J. Super. 466, 489, 403 A.2d 500 (1979) (despite fact that patient did not communicate specific threats of violence toward identifiable victim, “a psychiatrist or therapist may have a duty to take whatever steps are reasonably necessary to protect an intended or potential victim of his patient when he determines, or should determine . . . that the patient is or may present a probability of danger to that person”); Kerrville State Hospital v. Clark, 900 S.W.2d 425, 436-37 n.13 (Tex. App. 1995) (patient need not verbalize specific threat; duty to general public so long as danger is foreseeable); Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 68, 499 A.2d 422 (1985) (“mental health professional who knows or, based upon the standards of the medical health profession, should know that his or her patient poses a serious risk of danger to an identifiable victim has a duty to exercise reasonable care to protect him or her from that danger”).

Therefore, I would report to the Court of Appeals that, under Connecticut law, a psychotherapist has a duty to control a patient’s conduct if the psychotherapist knows or should know that the patient’s dangerous propensities present a foreseeable risk of injury to a victim who is identifiable or within a class of foreseeable victims. Additionally, based on the stipulation, the issues of whether the medical center’s psychiatric staff knew or should have known that Doe had dangerous propensities and whether Fraser was a foreseeable victim are questions of fact for a jury.

Accordingly, I dissent.

       The District Court granted Doe’s request to have his real name deleted from the court’s record.

       General Statutes § 51-199a provides in relevant part: “Short title: Uniform Certification of Questions of Law Act (a) This section may be cited as the ‘Uniform Certification of Questions of Law Act’.
      “(b) The supreme court may answer questions of law certified to it by ... a court of appeals of the United States . . . when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.”

       We certified the following question: “In the circumstances of this case, does a psychotherapist have a duty to control a patient being treated on an outpatient basis in order to prevent harm to third persons?”

       In 1979, he also was arrested once for stealing.

       Section 319 of 2 Restatement (Second), Torts (1965) provides: “Duty of Those in Charge of Person Having Dangerous Propensities
      “One who taires charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”

       The District Court determined that the psychotherapists at the medical center could not have foreseen that Doe would harm anyone. The District Court further determined that they could not have foreseen that, if Doe were to harm anyone, he would attack Fraser or a person within a class of identifiable victims, such as authority figures, that contained Fraser.

       The record before the Court of Appeals established that there were no objective indicia, such as threats or acts of violence, in Doe’s long history of psychotherapy that Doe had ever been dangerous to anyone, or had exhibited a tendency to become dangerous to anyone. Although these underlying facts are undisputed, the plaintiff submitted the depositions and affidavits of two psychiatric experts and contended that these opinions were sufficient to raise a material question of fact as to whether the medical center should have inquired further to determine if Doe were dangerous. These experts opined that during “the weeks preceding the homicide, Doe’s psychiatric condition was in a state of decompensation ... he was psychotic, and, had the [medical center staff] asked the necessary questions as to how Doe was feeling . . . they would have discovered his state of decompensation.” In addition, one of the experts stated that it was predictable that Doe would become violent on June 17, 1985, because the medical center had recently changed his medication. The other expert opined that Fraser was an identifiable victim. The Court of Appeals concluded that these affidavits and depositions did not raise a material question of fact Our decision is premised on the circumstances that the federal court concluded were determinative in this case.

       Applying state law in accordance with the principles set forth in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), and its progeny, federal court cases have come to similar conclusions. Some cases hold that a psychotherapist does not have a duty to exercise any control over an outpatient. See, e.g., Currie v. United States, 836 F.2d 209, 212-13 (4th Cir. 1987) (North Carolina). Other cases hold that such a duty may exist, but that it is limited in scope. See, e.g., Brady v. Hopper, 570 F. Sup. 1333, 1338-39 (D. Colo. 1983), aff'd, 751 F.2d 329 (10th Cir. 1984) (specific threats to specific victims); Hasenei v. United States, 541 F. Sup. 999, 1012-13 and n.24 (D. Md. 1982) (specific danger to readily identifiable person or group of persons); Lipari v. Sears, Roebuck & Co., 497 F. Sup. 185, 193-95 (D. Neb. 1980) (foreseeable victims, which may include members of class).

        McIntosh v. Milano, supra, 168 N.J. Super. 466, is distinguishable on its facts from the case before us. In McIntosh, the psychiatric outpatient had informed his treating psychiatrist that he had had a sexual relationship with the young woman who became his victim, that he had fired a gun at a car belonging to her or her boyfriend, that he “had purchased and carried a knife to show to people to scare them away,” and that he had strong negative feelings about the victim after their relationship had ended. Id., 472-73.

       This case is unusual because of its procedural posture and because of the facts relied upon by both the majority of this court and the Second Circuit Court of Appeals.

       The Court of Appeals requested that we certify the following issues: (1) “Does Connecticut recognize a general duty on the part of a psychotherapist to control a patient being treated on an outpatient basis in order to prevent harm to third persons?” and (2) “If so, do the allegations of the complaint in the pending case, as amplified by the submissions of the plaintiff in opposition to the defendant’s motion for summary judgment, present a triable jury issue?” This court amalgamated these issues into the single question we certified: “In the circumstances of this case, does apsychotherapist have a duty to control a patient being treated on an outpatient basis in order to prevent harm to third persons?”

       I am sensitive to the public policy arguments raised by the amici with respect to the imposition of civil liability on a psychotherapist for failing to control his or her patient who has- a propensity to cause harm and who is not in a custodial setting. Those arguments are: it is difficult for psychotherapists to predict violent behavior; recognizing a duty to control will result in an over prediction of violence and an over commitment of individuals; patients will be reluctant to seek treatmen! or to make full disclosure of their thoughts; and liability concerns will have a distorting influence on admission decisions. “Against [these interests and arguments], however, we must weigh the public interest in safety from violent assault.” Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 440, 551 P.2d 334,131 Cal. Rptr. 14 (1976) (“When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.” Id., 431.).
      Moreover, similar concerns were raised in opposition to the decision enunciated in Tarasoff. Since Tarasoff was decided in 1976, empirical data indicates that no adverse effects have resulted because of the decision. In a study reported in the Wisconsin Law Review, it was concluded that: (1) 95 percent of the psychiatric medical community believed that it is possible to predict violent behavior; (2) psychotherapists have not been discouraged from treating dangerous patients; and (3) there has not been an increased use of involuntary commitment of patients perceived as dangerous. D. Givelber, W. Bowers & C. Blitch, “Tarasoff, Myth and Reality: An Empirical Study of Private Law in Action,” 2 Wis. L. Rev. 443, 463, 479-80, 481-83 (1984). Furthermore, I agree that psychiatry is far from an exact science. Nevertheless, the strengths and weaknesses of the field of psychiatry to predict future behavior are factors that a jury may take into account when determining whether a psychotherapist has acted negligently and has breached his or her duty.

       In Connecticut, psychotherapists may exercise control through the emergency commitment procedure set forth in General Statutes § 17a-502 (a), which allows a physician to civilly commit an individual whom he or she believes is “mentally ill and dangerous to himself or others . . . and is in need of immediate care and treatment in a hospital for mental illness” for up to fifteen days without a court order. Therefore, in this case, there was a legal mechanism available for the medical center to commit Doe and prevent him from murdering Fraser.