Waters v. Autuori

676 A.2d 357, 236 Conn. 820, 1996 Conn. LEXIS 127

• Court: Supreme Court of Connecticut
• Decided: May 7, 1996
• Docket: 15190
• Status: Published

Opinions

PETERS, C. J.

The dispositive issue in this appeal is whether the promulgation of professional accounting standards is sufficient, by itself, to impose upon the promulgating professional organization a duty of care to an unknown third party who relies on the opinion of a certified public accountant claiming to have followed those standards. The plaintiff Barbara Waters (plaintiff) brought this action against the defendant American Institute of Certified Public Accountants (AICPA), and others,¹ on behalf of herself and as a representative of a class of persons who had lost the money they had invested in a limited partnership. The plaintiff sought damages for the AICPA’s allegedly negligent promulgation of professional accounting standards. Alleging a failure to state a claim upon which relief can be granted, the AICPA moved to strike those counts of the plaintiffs second amended complaint that were directed toward it. The trial court granted the motion to strike and rendered partial judgment in favor of the AICPA. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

In an appeal from a judgment following the granting of a motion to strike, we must take as true the facts alleged in the plaintiffs complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency. Sassone v. Lepore, 226 Conn. 773, 780, 629 A.2d 357 (1993); Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988). Accordingly, we assume as true the following facts as alleged in the plaintiffs second amended complaint. The AICPA is a national professional organization of certified pub-lie accountants. One of the purposes of the AICPA is the promotion and maintenance of professional accounting practices. In furtherance of this purpose, the AICPA has promulgated professional accounting standards. The bylaws of the AICPA require its members to adhere to its standards in the performance of their duties. The AICPA recognizes that the accounting profession has responsibilities to the public as well as to its clients.

In November, 1986, the plaintiff purchased a partnership interest in Colonial Potomac Limited Partnership (Colonial Potomac). Colonial Potomac had solicited the purchase of partnership interests by distributing various marketing documents to potential investors. Colonial Potomac’s marketing documents included financial reports prepared by Kostin and Company (Kostin), an accounting firm that is a member of the AICPA. The financial reports, which included forecasts of Colonial Potomac’s expected future economic performance, contained a statement that, in preparing these forecasts, Kostin had followed standards promulgated by the AICPA. The plaintiff, in deciding to invest in Colonial Potomac, relied on information provided in the financial reports prepared by Kostin. The plaintiff eventually lost the money she had invested in Colonial Potomac.

The plaintiffs complaint alleged that Kostin, in one of two ways, had prepared unreasonable financial forecasts for use in Colonial Potomac’s marketing documents. Kostin had either failed to follow AICPA standards or, if it had followed the standards, the standards themselves had been negligently promulgated.

On the latter theory, count twenty-six of the complaint alleged that the AICPA owed a duty of care to the plaintiff and had violated that duty by its negligent promulgation of standards that it knew, or should have known, would invite reliance by third parties such as the plaintiff and would thereby create an unreasonable risk of harm to them. Count twenty-six further alleged that the AICPA’s negligent promulgation of standards had caused the plaintiff to suffer economic harm and emotional distress. Count twenty-seven of the complaint alleged that the plaintiff had suffered emotional distress as a result of the negligence of all of the defendants.

The AICPA moved to strike counts twenty-six and twenty-seven of the plaintiffs second amended complaint to the extent that they alleged claims against it. The trial court granted the AICPA’s motion on the grounds that: (1) the AICPA owed no duty of care to the plaintiff; and (2) the plaintiff had failed to allege the elements necessary to establish a claim against the AICPA for negligent infliction of emotional distress. The trial court first determined that, under existing case law from Connecticut trial courts and from courts in other jurisdictions, a certified public accountant owes a duty of care to a third party only if the accountant and the third party are in privity or have a “relationship sufficiently intimate to be equated with privity.” The trial court then concluded that the AICPA did not owe a duty of care to the plaintiff under these principles of accountant liability, and that “[t]he law cannot be expanded to create a duty on the part of the AICPA, as the promulgator of professional standards, that is broader than the duty owed under Connecticut law by the practitioners who are expected to conform to [those standards].” In striking count twenty-seven as against the AICPA only, the trial court further concluded that the plaintiffs complaint was devoid of any allegations indicating how the AICPA should have realized that its promulgation of standards would create an unreasonable risk of causing emotional distress that might result in “illness” or “bodily harm” to the plaintiff. After its denial of the plaintiffs motion for reconsideration, the trial court rendered partial judgment in favor of the AICPA. This appeal followed.²

The plaintiff claims that the trial court improperly concluded that the AICPA did not owe her a duty of care, as a matter of law, and thus improperly struck counts twenty-six and twenty-seven of her complaint as against the AICPA. The plaintiff has not alleged either a privity relationship or a statutory basis that could possibly impose a duty of care to her on the part of the AICPA. Rather, the plaintiff claims that the AICPA owed her a duty of care solely because it had promulgated professional accounting standards that had been followed by Kostin, upon whose financial reports she had relied in deciding to invest in Colonial Potomac. We disagree with the plaintiff that the AICPA’s promulgation of standards establishes a cognizable duty of care owed by the AICPA to her.³

“The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff.” (Citations omitted; internal quotation marks omitted.) Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992). If facts provable in the complaint would support a cause of action, the motion to strike must be denied. Westport Bank & Trust Co. v. Corcoran, Mallin & Aresco, 221 Conn. 490, 496, 605 A.2d 862 (1992). In order to reverse the judgment of the trial court, therefore, this court must find that the allegations of the plaintiffs complaint, if proven, would constitute negligence by the AICPA. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).

The claims asserted by the plaintiff against the AICPA are grounded solely in negligence. There can be no actionable negligence, however, unless there exists a cognizable duty of care. Id., 384-85; Frankovitch v. Burton, 185 Conn. 14, 20, 440 A.2d 254 (1981). Whether a duty of care exists is a question of law to be decided by the court. Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982). The starting point of our analysis, therefore, is an examination of the allegations in the plaintiffs complaint to determine whether, if proven, they establish a cognizable duty of care.

We have often observed that “[t]he law does not recognize a ‘duty in the air.’ ” Id., 151; Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171, 544 A.2d 1185 (1988). The plaintiff invokes principles of foreseeability as the basis for her contention that the AICPA owed her a duty of care. Specifically, the plaintiff claims that the AICPA owed her a duty of care because “it was foreseeable that persons relying on reports required to be prepared pursuant to the AICPA’s standards would be injured if [the] AICPA negligently promulgated such standards . . . .” We disagree with the plaintiffs assumption that foreseeability is the fulcrum of duty. Even if it were foreseeable to the AICPA that an investor such as the plaintiff would rely on financial reports claimed to have been prepared in accordance with professional accounting standards that the AICPA had promulgated,⁴ we are unpersuaded that the AICPA owed the plaintiff a duty of care.

In predicating the existence of a duty of care on principles of foreseeability, the plaintiff misconstrues the concept of duty as our case law has delineated it. “Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.” (Internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 385. Because foreseeability is a necessary component of duty, the absence of foreseeability forecloses the existence of a duty of care. Id., 385-86; Frankovitch v. Burton, supra, 185 Conn. 20-21. The converse is not, however, true: the conclusion that a particular injury to a particular plaintiff or class of plaintiffs possibly is foreseeable does not, in itself, create a duty of care. As we recently stated in RK Constructors, Inc. v. Fusco Corp., supra, 386: “Many harms are quite literally ‘foreseeable,’ yet for pragmatic reasons, no recovery is allowed. ... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.” (Citations omitted; internal quotation marks omitted.) Thus, foreseeability is not commensurate with duty, and proof of foreseeability does not establish the existence of a duty of care.

In light of these principles, we conclude that the allegations in the plaintiffs complaint fail to establish a duty of care owed by the AICPA to the plaintiff. The plaintiff has alleged no privity of contract or statutory duty upon which to premise a duty of care. See Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982). Although the AICPA’s literature recognizes a responsibility on the part of the accounting profession to its clients and to the public, we are persuaded that such an acknowledgment cannot reasonably be interpreted as an assumption by the AICPA of any particular duty of care to persons such as the plaintiff.

We note, at the outset, that the standards promulgated by the AICPA are, on their face, insufficient to establish a duty of care.⁵ The AICPA has promulgated ten generally accepted auditing standards that outline the objectives governing the quality of services to be performed by certified public accountants when they examine their clients’ financial statements and render opinions thereon.⁶ These generally accepted auditing standards, however, lack specificity and set forth only a broad framework of due professional care to which accountants are expected to adhere. See footnote 6; see generally R. Kay & D. Searfoss, Handbook of Accounting and Auditing (2d Ed. 1989) pp. 5-6 through 5-7. In light of the level of generality at which these standards operate, they cannot establish a basis for the imposition of a duty of care to third parties.

To the extent that the allegations in the plaintiffs complaint can be construed to allege Kostin’s reliance on AICPA standards that, although as yet unspecified, are more particularized than the generally accepted auditing standards; see generally R. Kay & D. Searfoss, supra, p. 5-12; we are persuaded that even more particularized standards do not support the imposition of a duty of care on the AICPA. We reach this conclusion guided by two well reasoned federal cases that have considered and rejected the proposition that the AICPA owes to third parties a duty of care based solely on its promulgation of specific professional accounting standards.

In the first of these cases, Appalachian Power Co. v. American Institute of Certified Public Accountants, 177 F. Sup. 345 (S.D.N.Y.), aff'd, 268 F.2d 844 (2d Cir.) (per curiam), cert. denied, 361 U.S. 887, 80 S. Ct. 158, 4 L. Ed. 2d 121 (1959), public utility companies sought to enj oin the AICPA from publishing a proposed opinion letter that recommended the use of certain accounting procedures. The plaintiffs alleged that the publication of the opinion letter would have a detrimental effect on their financial statements. The United States District Court dismissed the plaintiffs’ complaint on the ground that any adverse effect to them would be “collateral, not direct, an effect which incidentally flows from a justifiable act.” Appalachian Power Co. v. American Institute of Certified Public Accountants, supra, 177 F. Sup. 351. The United States Court of Appeals for the Second Circuit affirmed the judgment of the District Court. Noting that “every professional body accepts a public obligation for unfettered expression of views and loses all right to professional consideration, as well as all utility, if its views are controlled by other criteria than the intellectual conclusions of the persons acting,” the Court of Appeals concluded that the AICPA’s publication of the opinion letter involved no breach of duty owed by the AICPA to the plaintiffs. Appalachian Power Co. v. American Institute of Certified Public Accountants, supra, 268 F.2d 845.

The second case similarly concluded that the AICPA does not owe to third parties a duty of care based solely on its promulgation of professional accounting standards. In Credit Union National Assn., Inc. v. American Institute of Certified Public Accountants, Inc., United States District Court, Docket No. 86-C-712-S (W.D. Wis. Feb. 25, 1987), vacated in part on other grounds, 832 F.2d 104 (7th Cir. 1987), an individual credit union and an association of credit unions sought to enjoin the AICPA from publishing an audit and accounting guide that characterized deposits in credit unions as liabilities rather than equities. The plaintiffs alleged that the AICPA owed them a duty of care not to publish a guide that would lead accountants to reclassify the plaintiffs’ deposits and thus cause them to suffer financial injury. In its decision dismissing the plaintiffs’ complaint, the United States District Court, while recognizing that accountants might owe the plaintiffs a duty of care, expressly rejected any claim that the AICPA owed the plaintiffs a duty that would be breached by the publication of the guide. Id., 7.⁷

The decisions in Appalachian Power Co. and Credit Union National Assn., Inc., support our conclusion that, in this case, the promulgation of professional accounting standards imposed on the AICPA no duty of care to the plaintiff. Like the plaintiff in this case, the plaintiffs in Appalachian Power Co. and Credit Union National Assn., Inc., were third parties that allegedly had suffered indirect harm from the AICPA’s promulgation of professional accounting standards. Stressing the intervening role of certified public accountants in applying AICPA standards, the courts in both cases concluded that no duty of care arose from the AICPA’s promulgation of those standards. See Appalachian Power Co. v. American Institute of Certified Public Accountants, supra, 268 F.2d 845; Credit Union National Assn., Inc. v. American Institute of Certified Public Accountants, Inc., supra, 7-8. We too are persuaded that the intended audience of the standards promulgated by the AICPA is the professional who applies them. The standards provide a framework for what ultimately is the opinion of the certified public accountant. That opinion is formulated and expressed in light of the accountant’s professional judgment and discretion. Any liability arising from the standards, therefore, would be premised on an accountant’s application of AICPA standards in his or her exercise of professional judgment rather than on the standards themselves. Accordingly, the promulgation of the standards is not a basis for imposing a duty of care to the plaintiff on the part of the AICPA.

While unable to distinguish the holdings of these federal cases, the plaintiff urges us to disregard these decisions and to rely instead on the terms of § 324 A of the Restatement (Second) of Torts⁸ as interpreted by the Supreme Court of Alabama in King v. National Spa & Pool Institute, Inc., 570 So. 2d 612 (Ala. 1990), on appeal after remand sub nom. King v. S.R. Smith, Inc., 578 So. 2d 1285 (Ala. 1991). The plaintiff argues that, pursuant to the principles of law contained in § 324 A, the voluntary promulgation of professional accounting standards by the AICPA required the AICPA to assume a cognizable duty of care to third parties such as herself. We disagree that § 324 A and decisions premised upon § 324 A are applicable in the circumstances of this case.

By its plain language, § 324 A recognizes a cause of action arising out of the rendering of services only for negligence that causes “physical harm” to a “third person or his things.” See footnote 8. The Restatement defines “physical harm” as “the physical impairment of the human body, or of land or chattels.” (Emphasis added.) 1 Restatement (Second), Torts § 7 (3) (1965); see also id., § 15 (defining “bodily harm” as “any physical impairment of the condition of another’s body, or physical pain or illness”). The claim asserted by the plaintiff against the AICPA is a claim for commercial loss based on her lost investment expectations. Such a claim does not fall within the confines of “physical harm” as that term is used in § 324 A. See, e.g., Sound of Market Street, Inc. v. Continental Bank International, 819 F.2d 384, 392 (3d Cir. 1987); Devine v. Roche Biomedical Laboratories, Inc., 637 A.2d 441, 447-48 (Me. 1994), on appeal after remand, 659 A.2d 868 (Me. 1995); Clinical Perfusionists, Inc. v. St. Paul Fire & Marine Ins. Co., 336 Md. 685, 702-703, 650 A.2d 285 (1994).

The Restatement’s express limitation on the type of injury that may constitute “physical harm” within § 324 A is fully in accordance with our own case law. Recently, in Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 583-84, 657 A.2d 212 (1995), we recognized a clear distinction between commercial loss and property loss. In light of this distinction, we construed the phrase “damage to property” in General Statutes § 52-572h (b)⁹ to refer only to damage to or the loss of use of tangible property and not to encompass losses that are purely commercial. Id. Because, properly construed, the term “physical harm” in § 324 A, does not include nonfulfillment of commercial expectations, that section cannot provide a basis for holding the AICPA hable to compensate the plaintiff for her commercial loss.

In the absence of a claim of “physical harm,” § 324 A cannot furnish a basis of recovery for the plaintiffs claim of emotional distress. Without alleging any such physical harm, the plaintiffs complaint alleges only that she suffered emotional distress that “exposed [her] to the risk of illness or bodily harm.” (Emphasis added.) Section 324 A cannot logically be construed to permit recovery for emotional distress unaccompanied by any physical impairment without contravening the express limitation on liability contained in that section itself. All the cases that premise liability on § 324 A, including King v. National Spa & Pool Institute, Inc., supra, 570 So. 2d 613-14, have involved claims of personal injury or property damage. Despite the plaintiffs argument to the contrary, we are persuaded that these cases neither advance nor support an interpretation of § 324 A that encompasses negligence that causes emotional distress without more. Accordingly, because the injuries claimed by the plaintiff do not fall within the ambit of § 324 A, that provision does not support the plaintiffs claim that the AICPA owed her a duty of care.

The conclusion that the plaintiff has not stated a cognizable cause of action in the circumstances of this case finds support not only in existing analogous precedents, but also in cogent reasons of public policy. It is axiomatic that we must consider such policy concerns as are relevant because “[i]t is a fundamental assumption of jurisprudence that rules of law have an impact on the manner in which society conducts its affairs.” Maloney v. Conroy, 208 Conn. 392, 403-404, 545 A.2d 1059 (1988); see Shore v. Stonington, supra, 187 Conn. 152-53. It is not difficult to envisage the consequences that would ensue if the voluntary promulgation of professional accounting standards were held to impose on the AICPA a duty of care to a third party who neither is specifically identifiable nor has any relationship with the AICPA aside from reliance on the professional opinion of a certified public accountant who allegedly relied on published AICPA standards. In effect, the AICPA would be at risk of being called upon to defend its standards in any dispute challenging the propriety of the professional services of an AICPA member. In the face of such broad exposure, at least to the costs of litigation and possibly to liability for damages, the AICPA and other similarly situated professional organizations might well curtail their laudable and salutary efforts to broaden and strengthen professional standards. We are persuaded that this chilling effect would benefit no one — not; the members of professional organizations, not their clients and not the public at large. The plaintiff has identified no countervailing benefit that would warrant the imposition of liability upon the AICPA in the form of a duty of care in the promulgation of professional accounting standards in the alleged circumstances of this case.

We conclude, therefore, that the allegations in the plaintiffs complaint, even taken as true and construed in a light most favorable to the plaintiff, fail to establish a duty of care owed by the AICPA to the plaintiff based solely on its promulgation of professional accounting standards. The only connection between the plaintiff and the AICPA is that the plaintiff, in deciding to invest in Colonial Potomac, allegedly relied on the financial reports prepared by Kostin and that Kostin, in turn, allegedly had prepared those reports in conformity with standards promulgated by the AICPA. We are persuaded that these allegations fail to provide a nexus between the AICPA’s promulgation of professional accounting standards, on the one hand, and the plaintiff and the disappointment of her commercial expectations, on the other hand, that is sufficient to impose a duty of care on the AICPA.

We thus concur in the judgment of the trial court that the AICPA, as a matter of law, did not owe to the plaintiff a duty of care based solely on its promulgation of professional accounting standards. Although we reach this result for reasons that differ from those upon which the trial court relied, we conclude that the trial court properly granted the motion to strike those counts of the plaintiff’s complaint that asserted claims against the AICPA. See PaineWebber, Inc. v. American Arbitration Assn., 217 Conn. 182, 188, 585 A.2d 654 (1991); Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 532, 461 A.2d 1369 (1983).

The judgment is affirmed.

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

1 The plaintiff named as defendants, in addition to the AICPA, thirty-eight individuals, three banks, three accounting firms, three partnerships, two corporations, two law firms and the Federal Deposit Insurance Corporation.

2 The AICPA was named as a defendant in twelve separate class actions, each of which involved claims arising from investments in failed limited partnerships. By agreement of the parties to these twelve actions, the AICPA moved to strike all counts against it in the plaintiffs complaint. The parties agreed that the ruling of the trial court on that one motion would apply to all twelve actions. The trial court rendered judgments granting the AICPA’s motion to strike as against the plaintiff in this case and as against the plaintiffs in the other eleven actions. The plaintiffs from the twelve actions appealed jointly from the judgments of the trial court.

3 The AICPA contends, as an alternate ground for affirmance of the trial court’s judgment, that the statute of limitations bars the plaintiffs claims. Because we conclude that the trial court properly determined that the AICPA owed no duty of care to the plaintiff as a matter of law, we need not address the issue of whether a statute of limitations defense may properly be raised in a motion to strike.

4 We need not decide in 1his case whether the plaintiff and her injuries were foreseeable to the AICPA because we conclude that the AICPA did not owe the plaintiff a duty of care, regardless of foreseeability. We nevertheless note that the plaintiff does not claim that she herself relied on, or was even familiar with, any of the professional accounting standards promulgated by the AICPA. Rather, the plaintiffs complaint alleges that the financial reports prepared by Kostin contained a statement that it had followed AICPA standards, and that the plaintiff relied on Kostin’s statement when she decided to invest in Colonial Potomac. The complaint further alleges that the plaintiff was a member of a class of third persons who the AICPA knew or should have known would rely on its standards. Thus, the plaintiff was foreseeable to the AICPA, if at all, only as a member of a general and indefinite class of persons.

5 The plaintiffs complaint fails to specify the AICPA standards upon which Kostin allegedly relied when it prepared Colonial Potomac’s financial reports.

6 The generally accepted auditing standards, as approved and adopted by the membership of the AICPA, are as follows:

“General Standards

“1. The audit is to be performed by a person or persons having adequate technical training and proficiency as an auditor.

“2. In all matters relating to the assignment, an independence in mental attitude is to be maintained by the auditor or auditors.

“3. Due professional care is to be exercised in the performance of the audit and the preparation of the report.

“Standards of Field Work

“1. The work is to be adequately planned and assistants, if any, are to be properly supervised.

“2. A sufficient understanding of the internal control structure is to be obtained to plan the audit and to determine the nature, timing, and extent of tests to be performed.

“3. Sufficient competent evidential matter is to be obtained through inspection, observation, inquiries, and confirmations to afford a reasonable basis for an opinion regarding the financial statements under audit.

“Standards of Reporting

“1. The report shall state whether the financial statements are presented in accordance with generally accepted accounting principles.

“2. The report shall identify those circumstances in which such principles have not been consistently observed in the current period in relation to the preceding period.

“3. Informative disclosures in the financial statements are to be regarded as reasonably adequate unless otherwise stated in the report.

“4. The report shall either contain an expression of opinion regarding the financial statements, taken as a whole, or an assertion to the effect that an opinion cannot be expressed. When an overall opinion cannot be expressed, the reasons therefor should be stated. In all cases where an auditor’s name is associated with financial statements, the report should contain a clear-cut indication of the character of the auditor’s work, if any, and the degree of responsibility the auditor is taking.” 1 AICPA, Professional Standards § 150.02, pp. 81-82 (June 1, 1995).

7 The District Court ultimately held that the plaintiffs’ claim against the AICPA based on an alleged breach of duty of care failed for a lack of a justiciable case or controversy. The United States Court of Appeals for the Seventh Circuit affirmed the District Court’s denial of injunctive relief and dismissal of the complaint on that ground. Credit Union National Assn., Inc. v. American Institute of Certified Public Accountants, Inc., supra, 832 F.2d 107-108.

8 Section 324 A of the Restatement (Second), Torts (1965), provides: “Liability to Third Person for Negligent Performance of Undertaking

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if:

“(a) his failure to exercise reasonable care increases the risk of such harm, or

“(b) he has undertaken to perform a duty owed by the other to the third person, or

“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

9 General Statutes § 52-572h provides in relevant part: “Negligence actions. Doctrines applicable. Liability of multiple tortfeasors for damages. . . .

“(b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. . .