Bloomfield Health Care Center of Connecticut, LLC v. Doyon ( 2018 )

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BLOOMFIELD HEALTH CARE CENTER OF
CONNECTICUT, LLC v. JASON DOYON
(AC 40281)
DiPentima, C. J., and Prescott and Eveleigh, Js.
Syllabus
The plaintiff nursing home sought to recover damages from the defendant,
the conservator of the estate of J, for negligence, claiming that the
defendant had breached his duty of care to the plaintiff by failing to
apply for and to obtain on a timely basis Medicaid benefits on behalf
of J that were necessary to pay for the cost of providing care and services
to J at its facility. The plaintiff had petitioned the Probate Court to
appoint an involuntary conservator to oversee J’s estate for the purpose
of assisting him with his finances and Medicaid benefits application,
and to ensure that it would be compensated for the necessary care it
provided to him. The court adjudicated J incapable of managing his
financial affairs, granted the plaintiff’s petition and appointed the defen-
dant as the conservator of J’s estate. The court did not require a probate
bond. The defendant then tendered $48,000 in proceeds from the sale
of J’s home to the plaintiff to be applied to J’s outstanding bill, which
totaled $124,000. J’s only other source of income at that time was social
security benefits he received each month, which the defendant began
paying over to the plaintiff. Although J did not have sufficient funds or
income remaining to pay the $370 per day required for his care, the
defendant did not submit an application for J’s Medicaid benefits until
nine months after his appointment as conservator, and the Department
of Social Services denied the application because the defendant did not
provide certain information that the department had requested for its
completion. Thereafter, the defendant filed a second application. That
application was granted, and J’s Medicaid benefits were made retroactive
to a certain date, but he did not receive any benefits for the cost of his
care prior to that date. The plaintiff subsequently commenced the pre-
sent action, and the defendant filed a motion for summary judgment,
which the trial court granted, concluding that the defendant was entitled
to judgment as a matter of law because he did not owe any duty of care
to the plaintiff solely as a result of his appointment as J’s conservator.
On the plaintiff’s appeal to this court, held that the trial court improperly
granted the defendant’s motion for summary judgment, that court having
incorrectly concluded that the defendant did not owe the plaintiff a
duty to use reasonable care in performing his duties as conservator of
J’s estate, which necessarily included timely submitting J’s application
for Medicaid benefits in order to obtain available public assistance funds
for the cost of J’s care provided by the plaintiff: the harm suffered by
the plaintiff was foreseeable as a matter of law based on the facts that
the plaintiff petitioned the Probate Court to appoint an involuntary
conservator to J to help him manage his estate, that the petition specifi-
cally alleged that J needed help completing an application for Medicaid
benefits, that the defendant, as J’s conservator, had exclusive access
and control over J’s assets, income and property, that when the defen-
dant was appointed as conservator of J’s estate, J already had accrued
several thousands of dollars of debt to the plaintiff and that even though
the defendant had tendered $48,000 in proceeds from the sale of J’s
house to the plaintiff and began paying over his social security checks,
J still was unable to pay the $370 per day required to cover the cost of
his care and continued to accrue debt to the plaintiff; moreover, because
the defendant had disposed of J’s assets and was familiar with his
finances, he would have been acutely aware of these facts and that his
failure to obtain Medicaid benefits for J would result in J’s being unable
to pay for the necessary care provided to him by the plaintiff, and
although he claimed that the harm to the plaintiff was not foreseeable
because he was not in privity with the plaintiff, the plaintiff did not
need to show that it was in privity with the defendant for this court
to determine that the harm suffered by the plaintiff was foreseeable;
furthermore, public policy supported recognizing that the defendant
owed a duty to the plaintiff to use reasonable care in the administration
and management of J’s estate because the parties reasonably could have
expected that the defendant would take the steps necessary to secure
payment for the cost of J’s care, which necessarily included timely
completing Johnson’s application for Medicaid benefits, and that the
defendant could be held liable to the plaintiff if he failed to do so,
particularly in light of the defendant’s statutory (§ 45a-655 [a]) duties
as a conservator of an estate, as well as the fact that the plaintiff’s
petition for a conservator specifically mentioned that J needed help
obtaining Medicaid benefits, the benefits of encouraging conservators
to carry out their duties with care and preventing financial harm out-
weighed any corresponding minimal increase in litigation, and many
other states have enacted legislation that permits a third party to bring
a statutory cause of action against a conservator if the conservator
commits a tort in the course of the administration of the estate or the
conservator otherwise is personally at fault for the party’s loss, which
indicated that the legislatures of those jurisdictions believed that third
parties should have a right to recover for harm caused to them by a
conservator’s negligence.
Argued May 15—officially released October 9, 2018
Procedural History
Action to recover damages for the defendant’s alleged
negligence, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Scholl, J., granted the defendant’s motion for
summary judgment and rendered judgment thereon,
from which the plaintiff appealed to this court.
Reversed; further proceedings.
Anne Jasorkowski, with whom, on the brief, was
Angelo Maragos, for the appellant (plaintiff).
Lauren A. MacDonald, with whom, on the brief, was
Timothy R. Scannell, for the appellee (defendant).
Opinion
PRESCOTT, J. In Jewish Home for the Elderly of
Fairfield County, Inc., v. Cantore, 257 Conn. 531, 532,
543–44, 778 A.2d 93 (2001) (Jewish Home), our Supreme
Court recognized that a nursing home that has been
harmed by the negligence of a conservator is entitled
to recover, through an action on a probate bond, the
losses it suffered as a result of the conservator’s failure
to timely file an application for Medicaid benefits on
behalf of his or her ward. This appeal asks us to deter-
mine whether to recognize a similar right of recovery
in a case where no probate bond was obtained.
This appeal arises out of an action by the plaintiff,
Bloomfield Health Care Center of Connecticut, LLC,
in which it alleged that the defendant, Jason Doyon,
breached a duty to use reasonable care in managing
the estate of his ward, Samuel Johnson. Specifically,
the plaintiff argues that the defendant was negligent by
failing to apply for and to obtain on a timely basis
Medicaid benefits that were necessary to pay the plain-
tiff for the cost of Johnson’s care at the plaintiff’s nurs-
ing home. The plaintiff now appeals from the summary
judgment rendered by the trial court in favor of the
defendant. On appeal, the plaintiff claims that the court
improperly concluded that the defendant did not owe
it a duty of care and, thus, was entitled to judgment
as a matter of law. We agree with the plaintiff and,
accordingly, reverse the judgment of the court.
The record, viewed in the light most favorable to the
plaintiff as the nonmoving party, reveals the following
facts. The plaintiff operates a chronic care and conva-
lescent nursing home facility in Bloomfield. On April
19, 2013, Johnson was admitted as a resident to the
plaintiff’s facility. Thereafter, the plaintiff provided care
and services to Johnson at a rate of $360 per day. On
October 1, 2013, the cost of care increased to $370
per day.
On September 26, 2013, Johnson’s daughter, who at
the time was acting as his attorney-in-fact, filed an appli-
cation for Medicaid benefits on behalf of Johnson. On
November 26, 2013, Johnson’s daughter sold his home.
The net proceeds from the sale of the home totaled
$48,000.
On January 8, 2014, the Department of Social Services
(department) denied Johnson’s application for Medic-
aid benefits for failure to provide required information.
The information missing from the application included
the disposition of the proceeds from the sale of his
home, copies of bank statements, information regarding
the surrender of his stocks, and proof that his assets
totaled less than $1600.
On February 26, 2014, the plaintiff petitioned the Pro-
bate Court to appoint an involuntary conservator to
him with his finances and Medicaid application, and to
ensure that it would be compensated for the necessary
care it provided to him.1 On April 8, 2014, the court
adjudicated Johnson incapable of managing his finan-
cial affairs, granted the plaintiff’s petition, and
appointed the defendant as the conservator of John-
son’s estate. The court dispensed with the requirement
of a probate bond.
On April 15, 2014, the defendant tendered the $48,000
in proceeds from the sale of Johnson’s home to the
plaintiff to be applied to Johnson’s outstanding bill,
which totaled $124,000 at that time. After the proceeds
from the sale of Johnson’s home were paid to the plain-
tiff, his only other source of income was $1363 that he
received in social security benefits each month, which
the defendant subsequently began paying over to the
plaintiff.
Although Johnson did not have sufficient remaining
funds or income to pay for his care, it was not until nine
months later, on January 21, 2015, that the defendant
submitted Johnson’s application for Medicaid benefits.
On February 17, 2015, the department told the defen-
dant that Johnson’s application was incomplete and
requested that the defendant provide it with additional
information by February 28, 2015, including the value
of any of Johnson’s remaining real property and bank
account statements. The defendant failed to provide
the department with the requested information, and,
on March 24, 2015, Johnson’s application was denied.
The defendant filed Johnson’s second application for
Medicaid benefits on August 12, 2015. The application
was granted on September 24, 2015, and Johnson’s Med-
icaid benefits were made retroactive to May 1, 2015.
Johnson did not receive any Medicaid benefits for the
cost of his care prior to that date. On October 21, 2015,
Johnson died.
On February 1, 2016, the plaintiff commenced the
present action. The plaintiff alleged in the operative
complaint that the defendant’s failure to apply for and
to obtain on a timely basis Medicaid benefits for John-
son had violated a duty of care that he owed to the
plaintiff. The plaintiff further alleged that the defen-
dant’s negligence caused it to suffer financial harm and
loss, and therefore it requested monetary damages.2
On July 19, 2016, the defendant filed an answer to
the plaintiff’s complaint and special defenses. On Sep-
tember 21, 2016, the defendant filed a motion for sum-
mary judgment. In his memorandum of law in support
of his motion, the defendant argued that he did not owe
a duty of care to the plaintiff. Specifically, he argued
that he owed a duty of care only to Johnson, his ward,
and thus the plaintiff did not have standing to bring the
action. The defendant also argued that he was entitled
to quasi-judicial immunity for his actions.
In its memorandum in opposition to the defendant’s
motion for summary judgment, the plaintiff argued that
the defendant owed it a duty of care under a common-
law theory of negligence. Specifically, the plaintiff
argued that it was readily foreseeable that Johnson
would be unable to pay it for the cost of his care if the
defendant failed to timely submit a Medicaid application
on his behalf and, further, that the plaintiff would suffer
harm as a result. The plaintiff also argued that public
policy supported its claim that the defendant owed it
a duty of care and that there was ‘‘no principled reason
why a conservator should avoid liability for his negli-
gence simply because there is no probate bond in a
particular case.’’ Finally, the plaintiff argued that the
defendant was not entitled to quasi-judicial immunity
because the Probate Court never expressly approved
the defendant’s actions with respect to Johnson’s Med-
icaid application.
On March 13, 2017, the court issued its memorandum
of decision granting the defendant’s motion for sum-
mary judgment, concluding that ‘‘the law does not sup-
port the plaintiff’s claim that the defendant, solely as
a result of his appointment as a conservator, owed
any duty to the plaintiff.’’ The court reasoned that ‘‘the
defendant’s duty, and, in fact, his authority to pursue
Medicaid benefits on behalf of his ward, does not arise
out of any relationship between the plaintiff and him,
but solely from his appointment by the Probate Court
as conservator, and his duties pursuant to that appoint-
ment.’’ The court thus determined that the defendant
did not owe the plaintiff a duty of care because ‘‘[t]he
purpose of a conservator is not to manage the ward’s
estate for the benefit of his creditors but for the benefit
of the ward.’’ On March 31, 2017, the plaintiff timely
filed the present appeal.
The plaintiff claims on appeal that the trial court
improperly granted the defendant’s motion for sum-
mary judgment because it incorrectly concluded that
the defendant did not owe it a duty of care. Specifically,
the plaintiff argues that the defendant owed it a duty
to use reasonable care in managing Johnson’s estate
because (1) the harm caused to the plaintiff as a result
of the defendant’s negligence was foreseeable, and (2)
public policy supports recognizing a duty of care in this
context. We agree with the plaintiff that the defendant
owed it a duty to use reasonable care to timely secure
Medicaid benefits for Johnson.
We begin by setting forth the relevant standards that
govern our review of a court’s decision to grant a defen-
dant’s motion for summary judgment. ‘‘Practice Book
§ [17-49] provides that summary judgment shall be ren-
dered forthwith if the pleadings, affidavits and any other
proof submitted show that there is no genuine issue as
to any material fact and that the moving party is entitled
to judgment as a matter of law. . . . In deciding a
motion for summary judgment, the trial court must view
the evidence in the light most favorable to the nonmov-
ing party. . . . The party seeking summary judgment
has the burden of showing the absence of any genuine
issue [of] material facts which, under the applicable
principles of substantive law, entitle him to a judgment
as a matter of law . . . and the party opposing such
a motion must provide an evidentiary foundation to
demonstrate the existence of a genuine issue of material
fact. . . . [I]ssue-finding, rather than issue-determina-
tion, is key to the procedure. . . . Our review of the
decision to grant a motion for summary judgment is
plenary. . . . We therefore must decide whether the
court’s conclusions were legally and logically correct
and find support in the record.’’ (Internal quotation
marks omitted.) Barbee v. Sysco Connecticut, LLC, 156
Conn. App. 813, 817–18, 114 A.3d 944 (2015).
We begin our analysis by first considering the defen-
dant’s role and general duties as conservator of John-
son’s estate. General Statutes § 45a-655 sets forth the
statutory duties of a conservator of an estate. Section
45a-655 (a) provides in relevant part: ‘‘A conservator
of the estate appointed under section 45a-646, 45a-650,
or 45a-654 shall, within two months after the date of
the conservator’s appointment, make and file in the
Probate Court, an inventory, under penalty of false
statement, of the estate of the conserved person, with
the properties thereof appraised or caused to be
appraised, by such conservator, at fair market value
as of the date of the conservator’s appointment. Such
inventory shall include the value of the conserved per-
son’s interest in all property in which the conserved
person has a legal or equitable present interest, includ-
ing, but not limited to, the conserved person’s interest
in any joint bank accounts or other jointly held property.
The conservator shall manage all the estate and apply
so much of the net income thereof, and, if necessary,
any part of the principal of the property, which is
required to support the conserved person and those
members of the conserved person’s family whom the
conserved person has a legal duty to support and to
pay the conserved person’s debts, and may sue for and
collect all debts due the conserved person. . . .’’
(Emphasis added.)
Under certain circumstances, if a conservator is
appointed to manage an individual’s estate, a probate
bond is issued. A probate bond is a ‘‘bond with security
given to secure the faithful performance by an
appointed fiduciary of the duties of the fiduciary’s trust
and the administration of and accounting for all moneys
and other property coming into the fiduciary’s hands,
as fiduciary, according to law.’’ General Statutes § 45a-
139 (a). Every probate bond is ‘‘conditioned for the
faithful performance by the principal in the bond of the
duties of the principal’s trust and administration of and
accounting for all moneys and other property coming
into the principal’s hands, as fiduciary, according to
law . . . .’’ General Statutes § 45a-139 (b). If the assets
of the ward’s estate total twenty thousand dollars or
more, the issuance of a probate bond is required. Gen-
eral Statutes § 45a-139 (c). A judge has discretion to
waive the requirement of a probate bond if the assets
of the estate total less than that amount, or under certain
circumstances. See Probate Court Rules § 35.1 (b).
If a probate bond is issued and the conservator
breaches his or her duties as fiduciary of the estate, a
third party may bring an action on the bond to recover
for the harm caused by the conservator’s breach. In
Jewish Home, our Supreme Court considered whether
the plaintiff in that case, a nursing home facility, had
‘‘a right to bring an action on a probate bond when it
suffer[ed] a loss as a result of a conservator’s failure
to ensure payment to the nursing home for his ward’s
care.’’ Jewish Home, supra, 257 Conn. 532. J. Michael
Cantore, Jr., had been appointed conservator of the
person and estate of Diana Kosminer, a patient of the
plaintiff nursing home. Id., 534. Cantore subsequently
executed and filed with the Probate Court a probate
bond in the amount of $50,000, which ‘‘was conditioned,
as required by § 45a-139, on Cantore faithfully per-
form[ing] the duties of his trust and administer[ing] and
account[ing] for all monies and other property coming
into his hands, as fiduciary, according to law . . . .’’
(Internal quotation marks omitted.) Id., 534–35. Cant-
ore, however, failed to use the assets of Kosminer’s
estate to pay the nursing home for her care or to timely
secure Medicaid benefits for her, which resulted in an
unpaid balance to the nursing home of $63,000. Id., 536.
The nursing home subsequently brought an action
against Cantore on the probate bond, alleging that he
had a duty, ‘‘as Kosminer’s conservator, to use the assets
of her estate to pay for the care and services she had
received from the plaintiff.’’ Id., 533–34, 536. The nurs-
ing home further alleged that Cantore had a duty to
apply promptly for Medicaid assistance when the
estate’s assets approached the $1600 Medicaid eligibil-
ity mark. Id., 536. Cantore filed a motion to strike the
nursing home’s complaint for failure to state a legally
sufficient cause of action. Id. The trial court granted
Cantore’s motion to strike, and this court affirmed the
court’s judgment. Id.
On appeal to our Supreme Court, the nursing home
argued that ‘‘the law imposed certain duties upon Cant-
ore, as conservator of Kosminer’s estate and person;
he breached those duties by failing to ensure timely
payment to the plaintiff through either the estate or
through public assistance; the breach of those duties
constituted a breach of the probate bond; and the plain-
tiff was aggrieved by those breaches.’’ Id., 537. Cantore
argued, however, that the ‘‘[nursing home] had no
authority to bring an action for the breach of the probate
bond because only parties acting as a representative of
the estate or seeking recovery for the estate are entitled
to bring such actions.’’ Id.
In evaluating the plaintiff’s claim, our Supreme Court
first considered Cantore’s duties as a conservator of
the estate and conservator of the ward, respectively.
Specifically, our Supreme Court noted that ‘‘[t]he statu-
tory duties of a conservator are clearly defined in . . .
§ 45a-655, which delineates the duties of a conservator
of the estate, and General Statutes § 45a-656, which
prescribes the duties of a conservator of the person. A
conservator of the estate shall manage all of the estate
and apply so much of the net income thereof, and, if
necessary, any part of the principal of the property,
which is required to support the ward and those mem-
bers of the ward’s family whom he or she has the legal
duty to support and to pay the ward’s debts . . . . A
conservator of the person has the duty to provide for
the care, comfort, and maintenance of the ward . . .
and the duty shall be carried out within the limitations
of the resources available to the ward, either through
his own estate or through private or public assistance.
. . . In addition, where a statute imposes a duty and
is silent as to when it is to be performed, a reasonable
time is implied.’’ (Citations omitted; emphasis in origi-
nal; footnotes omitted; internal quotation marks omit-
ted.) Id., 539–40.
Our Supreme Court then considered whether the
complaint properly alleged a breach of Cantore’s duties
as conservator of Kosminer’s estate and person. Id.,
541. The complaint alleged that ‘‘Cantore failed to make
timely payment to the plaintiff for the care and services
it provided to Kosminer and failed to apply for [M]edic-
aid benefits on Kosminer’s behalf once timely payment
for the plaintiff’s services had exhausted the assets of
the estate. The complaint further alleged that these
actions by Cantore resulted in a breach of his fiduciary
duties as conservator of Kosminer’s estate and person.
Kosminer incurred a substantial debt as a result of the
services she received from the [nursing home]. Cant-
ore’s failure to pay this debt, despite the estate’s ample
resources, constituted a breach of his duty under § 45a-
655 (a) to use the assets of the estate to pay Kosminer’s
debts. Furthermore, Cantore’s failure to ensure timely
payment to the [nursing home] constituted a breach of
his duty under § 45a-656 (a) to provide for Kosminer’s
care through the estate or through other private or
public assistance.’’ Id. Our Supreme Court concluded,
therefore, that the nursing home had properly alleged
facts that, if proven, would establish that Cantore failed
to fulfill his duties as conservator of Kosminer’s estate
and person. Id.
Our Supreme Court then considered the categories
of plaintiffs that can bring an action on a probate bond
to recover loss suffered as a result of a conservator’s
breach of his or her fiduciary duties pursuant to General
Statutes (Rev. to 1995) § 45a-144. Id., 543. Specifically,
our Supreme Court determined that the language of the
statute ‘‘evince[d] the legislature’s intent to create three
separate categories of potential plaintiffs in a suit on
a probate bond: first, a plaintiff bringing an action as
representative of the estate; second, a plaintiff bringing
an action in his own right; and third, a plaintiff bringing
an action in the right of himself and all others having an
interest in the estate . . . .’’ (Internal quotation marks
omitted.) Id., 543. Our Supreme Court found that ‘‘[t]he
[nursing home] fit squarely in the second category of
potential plaintiffs authorized by § 45a-144 (a) to bring
an action on the probate bond, namely, a plaintiff suing
in its own right to recover in its own name for the
breach of a probate bond,’’ and concluded, therefore,
that the complaint stated a legally sufficient cause of
action. Id., 543–44.
In the present case, unlike in Jewish Home, no pro-
bate bond was issued. The plaintiff claims, nevertheless,
that although it cannot bring an action against the defen-
dant on a probate bond, it may still bring an action
against the defendant under a common-law theory of
negligence because the defendant in the present case,
like Cantore, owed it a duty to use reasonable care to
apply for and to obtain Medicaid benefits for Johnson
and had breached that duty. The plaintiff argues that
‘‘the absence of a probate bond . . . is not and should
not be determinative of a [c]onservator’s liability for
his negligent actions under the common law’’ when the
‘‘establishment of a bond is predicated upon the amount
of assets’’ in the estate.
‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury.’’ (Internal quotation marks
omitted.) Jarmie v. Troncale, 306 Conn. 578, 589, 50
A.3d 802 (2012). ‘‘Duty is a legal conclusion about rela-
tionships 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 it has been
said that 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. The ultimate test of the
existence of the duty to use care is found in the foresee-
ability that harm may result if it is not exercised. . . .
[T]he test for the existence of a legal duty entails (1)
a determination of whether an ordinary person in the
defendant’s position, knowing what the defendant knew
or should have known, would anticipate the harm of
the general nature of that suffered was likely to result,
and (2) a determination, on the basis of a public policy
analysis, of whether the defendant’s responsibilities for
its negligent conduct should extend to the particular
consequences or particular plaintiff in the case.’’
(Emphasis added; internal quotation marks omitted.)
Munn v. Hotchkiss School, 326 Conn. 540, 548, 165 A.3d
1167 (2017). ‘‘[T]he determination of whether a duty
exists . . . is a question of law.’’ (Internal quotation
marks omitted.) Lodge v. Arrett Sales Corp., 246 Conn.
563, 571, 717 A.2d 215 (1998).
It is important, before conducting a duty analysis, to
note that the common law is not static but dynamic,
and often evolves to adapt to the changing conditions
of society. See Goodrich v. Waterbury Republican-
American, Inc., 188 Conn. 107, 127, 448 A.2d 1317
(1982) (recognizing for first time action for invasion of
privacy in Connecticut). Thus, when a plaintiff can show
that the two requirements for the test of the existence
of a legal duty of care have been met, our courts may
recognize that the plaintiff can bring an action for negli-
gence against the defendant. See Munn v. Hotchkiss
School, supra, 326 Conn. 548–60 (recognizing that
school had legal duty to warn students about or protect
students against risk of serious insect-borne disease
when organizing trip abroad); Monk v. Temple George
Associates, LLC, 273 Conn. 108, 114–22, 869 A.2d 179
(2005) (parking lot owner owed reasonable duty to ade-
quately light and monitor parking lot to nightclub patron
who parked there).
I
FORESEEABILITY
The plaintiff argues that it was readily foreseeable
that, if the defendant failed to timely obtain Medicaid
benefits for Johnson, the plaintiff would suffer harm
as a result because it would not be reimbursed for the
cost of Johnson’s care. The plaintiff contends that the
entire purpose of its petition to the Probate Court was
to assure access to Medicaid benefits for Johnson and
that the defendant knew that Johnson did not have
enough assets to pay for his care and was incurring
debt to it at a rate of $370 per day. The plaintiff also
contends that the defendant was the only person who
had control over Johnson’s estate and, consequently,
the authority to obtain Medicaid benefits for him.
The defendant argues, however, that the harm suf-
fered by the plaintiff was not foreseeable because the
defendant’s only fiduciary responsibilities were to John-
son and not his creditors. Specifically, the defendant
argues that he ‘‘could not have foreseen any harm to the
[p]laintiff because [he] did not enter into any agreement,
contract, or relationship with the [p]laintiff regarding
[Johnson’s] eligibility for [Medicaid] benefits.’’ The
defendant also disagrees with the plaintiff’s assertion
that the purpose of its petition to the Probate Court
was to have a conservator appointed to help Johnson
obtain Medicaid benefits.
‘‘[F]oreseeability that harm may result if [a duty of
care] is not exercised . . . is not meant that one
charged with negligence must be found actually to have
foreseen the probability of harm or that the particular
injury which resulted was foreseeable, but the test is,
would the ordinary [person] in the defendant’s position,
knowing what he knew or should have known, antici-
pate that harm of the general nature of that suffered
was likely to result . . . .’’ Jarmie v. Troncale, supra,
306 Conn. 590. Ordinarily, ‘‘whether the injury is reason-
ably foreseeable . . . gives rise to a question of fact
for the finder of fact . . . . foreseeability becomes a
conclusion of law only when the mind of a fair and
reasonable [person] could reach only one conclusion;
if there is room for reasonable disagreement the ques-
tion is one to be determined by the trier as a matter
of fact.’’ (Citation omitted; internal quotation marks
omitted.) Ruiz v. Victory Properties, LLC, 315 Conn.
320, 330, 107 A.3d 381 (2015).
We conclude that the harm suffered by the plaintiff
in the present case was foreseeable as a matter of law.
The plaintiff petitioned the Probate Court to appoint
an involuntary conservator to Johnson to help him man-
age his estate and noted in its petition that Johnson
needed help completing a Medicaid application. Once
appointed as Johnson’s conservator, the defendant
alone had access and control over Johnson’s assets,
income and property.
Furthermore, it is undisputed that, when the defen-
dant was appointed as conservator of Johnson’s estate,
Johnson already had accrued several thousands of dol-
lars of debt to the plaintiff. It is also undisputed that,
even though the defendant tendered the $48,000 in pro-
ceeds from the sale of Johnson’s house to the plaintiff
and began paying over his social security checks, John-
son still was unable to pay the $370 per day required
to cover the cost of his care and, therefore, continued
to accrue debt to the plaintiff. Having disposed of John-
son’s assets and being familiar with his finances, the
defendant would have been acutely aware of these facts
and that his failure to obtain Medicaid benefits for John-
son would result in Johnson being unable to pay for
the necessary care rendered to him by the plaintiff.
The defendant argues that the harm to the plaintiff
was not foreseeable because the defendant was not
in privity with the plaintiff. Our Supreme Court has
determined, however, that a defendant may owe a duty
of care to third parties under certain circumstances.
See Gazo v. Stamford, 255 Conn. 245, 249–51, 765 A.2d
505 (2001) (defendant who contracted with Chase Bank
to remove snow from sidewalk in front of building owed
duty to third-party plaintiff who was injured as result
of defendant’s failure to properly remove snow and ice;
relationship between defendant’s alleged negligence
and plaintiff’s injury was direct and well within scope
of foreseeability); Lombard v. Edward J. Peters, Jr.,
P.C., 252 Conn. 623, 632–33, 749 A.2d 630 (2000) (defen-
dant, acting as committee for foreclosure sale, owed
plaintiff condominium owners duty to use reasonable
care to properly identify property included in foreclo-
sure sale; plaintiffs could properly maintain negligence
action against defendant for misidentifying their garage
as part of foreclosure property); Coburn v. Lenox
Homes, Inc., 173 Conn. 567, 574, 378 A.2d 599 (1977)
(privity not required to bring negligence action; subse-
quent purchasers of home could bring negligence action
against corporation that constructed it). Thus, the plain-
tiff need not show that it was in privity with the defen-
dant for us to determine that the harm suffered by the
plaintiff was foreseeable.
Rather, what is important is whether an ordinary
person, standing in the shoes of the defendant, would
or should have known that the harm of the general
nature suffered by the plaintiff was likely to result. See
Lombard v. Edward J. Peters, Jr., P.C., supra, 252 Conn.
633. Thus, considering that (1) the plaintiff petitioned
the Probate Court to have a conservator appointed, (2)
the petition specifically alleged that Johnson needed
assistance completing his Medicaid application, (3) the
defendant knew of Johnson’s growing debt to the plain-
tiff and that Johnson could not pay the plaintiff for the
cost of his care, and (4) the defendant had the exclusive
authority to access and manage Johnson’s finances, we
conclude, as a matter of law, that the harm to the plain-
tiff was foreseeable.
II
PUBLIC POLICY
In light of our conclusion that the harm suffered by
the plaintiff was reasonably foreseeable as a matter of
law, we next turn to consider whether public policy
supports recognizing that the defendant owed to the
plaintiff a duty to use care in the administration and
management of Johnson’s estate, which included timely
completing Johnson’s application for Medicaid benefits.
Indeed, ‘‘[a] simple conclusion that the harm to the
plaintiff was foreseeable . . . cannot by itself mandate
a determination that a legal duty exists. Many harms
are quite literally foreseeable, yet for pragmatic reasons,
no recovery is allowed. . . . A further inquiry must
be made, for we recognize that duty is not sacrosanct
in itself . . . but is only an expression of the sum total
of those considerations of policy [that] lead the law to
say that the plaintiff is entitled to protection. . . . The
final step in the duty inquiry, then, is to make a determi-
nation of the fundamental policy of the law, as to
whether the defendant’s responsibility should extend
to such results.’’ (Internal quotation marks omitted.)
Munn v. Hotchkiss School, supra, 326 Conn. 549–50.
‘‘[I]n considering whether public policy suggests the
imposition of a duty, we . . . consider the following
four factors: (1) the normal expectations of the partici-
pants in the activity under review; (2) the public policy
of encouraging participation in the activity, while
weighing the safety of the participants; (3) the avoid-
ance of increased litigation; and (4) the decisions of
other jurisdictions.’’ (Internal quotation marks omit-
ted.) Id., 550. ‘‘[This] totality of the circumstances rule
. . . is most consistent with the public policy goals of
our legal system, as well as the general tenor of our
[tort] jurisprudence.’’ (Internal quotation marks omit-
ted.) Ruiz v. Victory Properties, LLC, supra, 315 Conn.
337. We also note the three fundamental purposes of
our tort compensation system, which are the ‘‘compen-
sation of innocent parties, shifting the loss to responsi-
ble parties or distributing it among appropriate entities,
and deterrence of wrongful conduct . . . .’’ (Internal
quotation marks omitted.) Lodge v. Arett Sales Corp.,
supra, 246 Conn. 578–79.
A
We begin by considering the normal expectations of
the participants in the activity under review. The plain-
tiff argues that, although it ‘‘certainly did not expect to
recover the debt which accrued prior to [the defen-
dant’s] appointment, [it] did expect that funds were
going to be provided and made available for . . . John-
son’s care, and [that the defendant] would obtain funds
for his support by way of the Medicaid program’’
because it ‘‘set out to [have] appoint[ed] a conservator
for that purpose.’’
Before we begin our analysis, we note that our stat-
utes themselves are a source of public policy, and may
militate in favor of recognizing a common-law duty of
care when doing so advances the general policies and
objectives of the statute. See Williams Ford, Inc. v.
Hartford Courant Co., 232 Conn. 559, 580–82, 657 A.2d
212 (1995). Thus, in determining the normal expecta-
tions of the parties, our appellate courts have often
looked to ‘‘Connecticut’s existing body of common law
and statutory law relating to th[e] issue. See, e.g., [Ruiz
v. Victory Properties, supra, 315 Conn. 337–38] (consid-
ering existing common-law principles and statutory
requirements in determining whether apartment build-
ing landlord owed duty to keep yard clear of debris
that could be thrown by children); Greenwald v. Van
Handel, 311 Conn. 370, 376–77, 88 A.3d 467 (2014) (not-
ing [our Supreme Court’s] recognition in equity and
contractual contexts of certain ‘common-law maxims’
before considering whether to extend them to profes-
sional negligence claim against therapist arising from
plaintiff’s arrest for possession of child pornography);
Jarmie v. Troncale, supra, 306 Conn. 603–605
(reviewing Connecticut medical malpractice case law
and statutes governing health-care providers in
determining whether physician owed plaintiff, who was
injured in automobile accident with physician’s patient,
common-law duty to inform patient of driving risks
associated with her medical condition).’’ Lawrence v.
O & G Industries, Inc., 319 Conn. 641, 651, 126 A.3d
569 (2015).
In considering whether the plaintiff reasonably could
have expected that the defendant would have obtained
available funds for the cost of Johnson’s care, then, we
first look to the statutory duties of a conservator of an
estate, which are outlined in § 45a-655 (a). Section 45a-
655 (a) provides that the defendant had a statutory duty
to use Johnson’s estate to support him as well as pay his
debts, which, in Johnson’s case, included his significant
and growing debt to the plaintiff. Moreover, § 45a-655
(d) provides, in relevant part, that, ‘‘[i]n the case of any
person receiving public assistance, state-administered
general assistance or Medicaid, the conservator of the
estate shall apply toward the cost of care such person
any assets exceeding limits on assets set by statute
or regulation adopted by the Commissioner of Social
Services. . . .’’
In the present case, Johnson did not have enough
assets in his estate to pay the plaintiff for the cost of
his care. Because Johnson was unable to pay for his
care, the only way that the defendant could use John-
son’s estate to support him and to pay his debt to the
plaintiff would be to spend down Johnson’s remaining
assets such that he was eligible for Medicaid and, there-
after, timely complete Johnson’s application for Medic-
aid benefits. See Ross v. Giardi, 237 Conn. 550, 555–74,
680 A.3d 113 (1996) (discussing applicability of resource
spend down methodology to Medicaid benefits). The
defendant clearly had the authority, pursuant to statute,
to take such actions. Section 45a-655 (a) grants the
conservator of the estate access to the ward’s assets
and financial records and the authority to manage his
estate. Furthermore, § 45a-655 (d) contemplates that
the conservator of the ward’s estate will assist the ward
in qualifying for Medicaid benefits, specifically. It is a
logical extension of the plain language of the statute,
then, to conclude that the parties could expect that the
defendant would timely submit Johnson’s application
for Medicaid benefits in the event that he was unable
to pay the plaintiff for the cost of his care.
In addition to the statutory duties of a conservator
of an estate outlined in § 45a-655 (a), the Connecticut
Standards of Practice for Conservators (2018), standard
17 I explicitly provides, in relevant part, that ‘‘[w]ith
the proper authority and within the resources available
to the conserved person, the conservator of the estate
shall have the following duties . . . E. The conservator
shall seek public and insurance benefits that are bene-
ficial for the conserved person. . . .’’3 (Emphasis
added.) Standard 17 I E suggests that it is widely under-
stood by conservators in Connecticut that they are able
to—and, in fact, have a duty to—seek public assistance
for their ward when necessary.
Moreover, we also find compelling in evaluating the
normal expectation of the parties the fact that the plain-
tiff’s petition for involuntary conservatorship specifi-
cally noted that Johnson needed help completing his
application for Medicaid benefits. This allegation put
the defendant on notice that (1) one of the purposes
of his appointment was to help Johnson obtain Medicaid
benefits, and (2) the plaintiff, specifically, would incur
loss if the defendant failed to do so.
It is reasonable, then, considering the defendant’s
statutory duties under § 45a-655 (a) and the authority
granted in him thereunder, as well as the fact that the
plaintiff’s petition for a conservator specifically men-
tioned that Johnson needed help obtaining Medicaid
benefits, that the plaintiff would have expected the
defendant, as conservator of Johnson’s estate, to take
steps necessary to pay the portion of Johnson’s debt
to the plaintiff that accrued after he was appointed and
to secure any available public funding that would help
pay for the cost of his care. See Jewish Home, supra,
257 Conn. 540–42 (plaintiff nursing home correctly
expected that conservator of patient’s estate and person
would timely secure payment for cost of patient’s care
considering conservator’s statutory duties);4 see also
Jarmie v. Troncale, supra, 306 Conn. 604 (plaintiff could
not expect that physician owed general public duty to
warn patient that her condition might affect her ability
to drive because no statute or regulation imposed
such duty).
The defendant argues, however, that in the event that
he failed to timely submit Johnson’s application for
Medicaid benefits, he could not have expected that he
would be held personally liable to the plaintiff for his
failure to do so. Rather, he contends that, because there
was no direct relationship between the plaintiff and the
defendant,5 it was the normal expectation of the parties
‘‘that any claim by the [p]laintiff . . . for money owed
by the ward for the [p]laintiff’s services would be
brought against the ward’s estate and not the [d]efen-
dant.’’ We disagree with the defendant.
At the outset, we note that there is a fundamental
inconsistency in applying the defendant’s argument to
our inquiry regarding the normal expectations of the
parties. The sole issue in this case is whether the defen-
dant owed the plaintiff a duty to use reasonable care in
timely securing public assistance to pay for the services
rendered to Johnson by the plaintiff. If we do agree
with the plaintiff that the defendant owed it a duty
of care and, therefore, that it properly could bring a
negligence action against him, it would be the first time
that this notion was expressly recognized by either of
our appellate courts.
Because of this, our inquiry regarding the normal
expectations of the parties cannot begin and end with
the question of whether our appellate courts have con-
sidered previously the legal viability of this exact action.
To conclude as such would render our inquiry pointless,
as we only consider the normal expectations of the
parties when we ask for the first time whether the
defendant in a particular case owed the plaintiff a duty
of care. Presumably, then, every time a plaintiff brought
a negligence action against a defendant alleging breach
of a duty that has not been explicitly recognized by our
appellate courts, the defendant could simply make an
argument that it was not the normal expectation of
the parties that the defendant could be held personally
liable to the plaintiff for his or her negligence. We must
focus, instead, not on whether the defendant could have
expected that the plaintiff could bring a negligence
action against him, specifically, but on the broader
inquiry of whether the defendant could have expected
that he would be held liable to a nursing home, in
some way, for the type of misconduct alleged in the
present case.
Our Supreme Court’s decision in Jewish Home,
supra, 257 Conn. 531 is instructive on this point. Our
Supreme Court concluded in that case that a conserva-
tor could be held liable to a nursing home, specifically,
for the losses it incurred as a result of the conservator’s
failure to timely secure Medicaid benefits for his ward.
Id., 539–44. It is true that the nursing home in Jewish
Home brought an action on a probate bond, rather than
an action in negligence. What is significant for the pur-
pose of our analysis, however, is that our Supreme
Court recognized that a conservator could be held liable
(1) to a nursing home, and (2) for the exact type of
misconduct alleged in the present case.
The fact that the plaintiff in the present case and the
plaintiff in Jewish Home are both nursing homes is
significant because nursing homes are unique and differ
from other creditors of an estate. This difference is
primarily due to the critical nature of the services they
provide to the ward—namely, shelter, food, and care
to a vulnerable segment of our population.
Moreover, nursing homes are also unique because,
unlike other service providers, they are very limited in
their ability to refuse to provide or discontinue service
to individuals who are indigent. Indeed, Connecticut by
statute has imposed strict rules that govern the circum-
stances under which a nursing home6 can (1) refuse to
admit an indigent patient, or (2) involuntarily discharge
a patient. General Statutes § 19a-533 (b) provides in
relevant part: ‘‘A nursing home which receives payment
from the state for rendering care to indigent persons
shall: (1) Be prohibited from discriminating against
indigent persons who apply for admission to such
facility on the basis of source of payment. Except as
otherwise provided by law, all applicants for admission
to such facility shall be admitted in the order in which
such applicants apply for admission. . . .’’ (Emphasis
added.) Subsection (b) (3) of § 19a-533 further prohibits
nursing homes from ‘‘requiring that an indigent person
pay any sum of money or furnish any other consider-
ation, including but not limited to the furnishing of an
agreement by the relative, conservator or other respon-
sible party of an indigent person which obligates such
party to pay for care rendered to an indigent person as a
condition for admission of such indigent person . . . .’’
General Statutes § 19a-535 governs the circum-
stances under which a nursing home may involuntarily
discharge a patient. Section 19a-535 (b) provides, in
relevant part, that ‘‘[a] facility shall not transfer or dis-
charge a resident from the facility except to meet the
welfare of the resident which cannot be met in the
facility, or unless the resident no longer needs the ser-
vices of the facility due to improved health, the facility
is required to transfer the resident pursuant to section
17b-359 or 17b-360, or the health or safety of individuals
in the facility is endangered, or in the case of a self-pay
resident, for the resident’s nonpayment or arrearage of
more than fifteen days of the facility room rate, or
the facility ceases to operate. . . .’’ (Emphasis added.)
Section 19a-535 (a) (5) provides, in relevant part, that
a ‘‘self-pay resident means a resident who is not receiv-
ing state or municipal assistance to pay for the cost
of care at a facility, but shall not include a resident
who has filed an application with the Department of
Social Services for Medicaid coverage for facility care
but has not received an eligibility determination from
the department on such application, provided that the
resident has timely responded to requests by the depart-
ment for information that is necessary to make such
determination . . . .’’ (Emphasis added; internal quota-
tion marks omitted.)
Thus, pursuant to §§ 19a-533 and 19a-535, a nursing
home may not refuse to admit a patient simply because
he or she is indigent, nor may a nursing home discharge
a patient who is reliant on Medicaid or in the process
of obtaining Medicaid benefits but otherwise unable to
pay for the cost of his or her care. In other words, the
nursing home’s hands are metaphorically tied—in the
case that a patient is indigent and unable to pay for the
cost of care, the nursing home itself cannot apply on
behalf of the patient for public assistance yet must
continue to provide services to the patient at its own
expense. This predicament highlights just how critical
it is to the nursing home that a conservator, once
appointed, performs his or her duties in a timely and
attentive fashion.7
Moreover, with respect to the defendant’s argument
that he could not expect that he would be held liable
for the plaintiff’s loss because no probate bond was
issued, we reiterate that the type of misconduct alleged
by the plaintiff against the defendant in the present
case is almost identical to that complained of by the
plaintiff in Jewish Home, supra, 257 Conn. 535, 543–44.
Our Supreme Court concluded in Jewish Home that
the plaintiff nursing home could maintain an action on
a probate bond against a conservator for his failure to
timely complete an application for Medicaid benefits
on behalf of his ward. Id., 540–44. Thus, the defendant
should have at least been on notice that his failure
to submit timely Johnson’s application for Medicaid
benefits could give rise to some sort of liability. Indeed,
it would be unreasonable for the defendant to believe
that the plaintiff would be left without a remedy simply
because no probate bond was obtained.
Finally, the defendant argues that the parties could
not have expected that he would be held personally
liable to the plaintiff for his failure to timely submit
Johnson’s application for Medicaid benefits because he
was acting as an agent of the Probate Court and thus
is entitled to quasi-judicial immunity. A conservator is
entitled to quasi-judicial immunity, however, only when
his or her actions are expressly authorized or approved
by the Probate Court. See Gross v. Rell, 304 Conn. 234,
251–52, 40 A.3d 240 (2012).
‘‘[W]hen the Probate Court has expressly authorized
or approved specific conduct by the conservator, the
conservator is not acting on behalf of the conservatee,
but as an agent of the Probate Court.’’ Gross v. Rell,
supra, 304 Conn. 251. Thus, ‘‘when the conservator has
obtained the authorization or approval of the Probate
Court for his or her actions on behalf of the conserva-
tee’s estate, the conservator cannot be held personally
liable.’’ Id., 251–52.
In cases where ‘‘the conservator’s acts are not author-
ized or approved by the Probate Court, however . . .
[there is] no reason to depart from the common-law
rule that the conservator of the estate is not acting
as the agent of that court, but as the fiduciary of the
conservatee, and, as such, may be held personally lia-
ble.’’ Id., 253–54. ‘‘A conservator is a fiduciary and acts
at his peril and on his own personal responsibility
unless and until his actions in the management of the
ward’s estate are approved by the Probate Court.’’
(Emphasis added; internal quotation marks omitted.)
Zanoni v. Hudon, 48 Conn. App. 32, 37, 708 A.2d 222,
cert. denied, 244 Conn. 928, 711 A.2d 730 (1998); see
also Elmendorf v. Poprocki, 155 Conn. 115, 120, 230
A.2d 1 (1967) (‘‘[e]ven if it was proper and necessary
for the conservatrix to utilize the plainitiff’s services in
the management of her ward’s estate, the liability for
the value of the services rested on her personally, until
they were subsequently approved by the Probate
Court’’).
The defendant has failed to show that any of his
actions with respect to his failure to obtain Medicaid
benefits for Johnson were specifically ratified by the
Probate Court. In other words, the defendant has not
directed our attention to any order of the Probate Court
that excused his obligation to timely submit Johnson’s
application for Medicaid benefits. Rather, in support of
his argument that he is entitled to quasi-judicial immu-
nity, the defendant simply makes the conclusory legal
assertion that ‘‘[i]t was the expectation of the parties
that [he] was acting with quasi-judicial immunity as he
was performing his duties pursuant to his Probate Court
appointment as conservator.’’ Because our case law
provides that a conservator is entitled to quasi-judicial
immunity only if the specific act or acts at issue were
approved by the court, the defendant’s failure to show
that even one act of his was ratified by the court is
fatal to his argument. See Gross v. Rell, supra, 304 Conn.
256–57 (rejecting claims that conservators are entitled
to quasi-judicial immunity even when acts are not
authorized or approved by Probate Court simply
because statutory safeguards exist to ensure proper
behavior by conservator and that conservators, like
guardian ad litems, are entitled to quasi-judicial immu-
nity for discretionary acts); see also Elmendorf v.
Poprocki, supra, 155 Conn. 119 (conservator was pow-
erless to sell ward’s estate without prior express autho-
rization of Probate Court); compare Zanoni v. Hudon,
supra, 48 Conn. App. 36–37 (conservator was not indi-
vidually liable for breach of contract because Probate
Court approved contract of sale and conservator, there-
fore, was acting as agent of Probate Court).
We conclude, therefore, that the parties reasonably
could have expected that the defendant (1) would take
the steps necessary to secure payment for the cost
of Johnson’s care, which necessarily included timely
completing Johnson’s application for Medicaid benefits,
and (2) could be held liable to the plaintiff if he failed
to do so. The first factor of the public policy prong of
our duty analysis therefore weighs heavily in support
of the plaintiff’s claim that the defendant owed it a duty
of care.
B
Next, because they are analytically related, we con-
sider together the second and third factors, namely,
the public policy of encouraging participation in the
activity, while weighing the safety of the participants,8
and the avoidance of increased litigation. See Lawrence
v. O & G Industries, Inc., supra, 319 Conn. 658. With
respect to these two factors, the plaintiff argues that,
if we decline to recognize that a conservator can be
held personally liable to it for his or her breach of
statutory duties, it would lessen any incentive on con-
servators to perform their duties efficiently and ade-
quately, and thus undermine the purpose of allowing
nursing homes to petition to have a conservator
appointed in the first place. The plaintiff further argues
that, with respect to the consideration of increased
litigation, any concern that recognizing a duty in this
context would increase significantly a conservator’s
exposure is misplaced because a conservator already
has certain statutory duties that require him or her to
timely secure funding for the ward’s care. The defen-
dant argues, however, that recognizing a duty in this
context would chill, rather than encourage, individuals
to take on the role of conservator because it would
increase a conservator’s liability.
We recognize that, with respect to the third factor
which contemplates the concern of increased litigation,
‘‘[i]t is [often] easy to fathom how affirmatively impos-
ing a duty on the defendants . . . could encourage sim-
ilarly situated future plaintiffs to litigate on the same
grounds; that is true anytime a court establishes a
potential ground for recovery.’’ (Emphasis in original.)
Monk v. Temple George Associates, LLC, supra, 273
Conn. 120. Because of this, in considering these two
factors, our Supreme Court at times has employed a
balancing test to determine whether, in the event that
a duty of care is recognized by the court, the advantages
of encouraging participation in the activity under review
outweigh the disadvantages of the potential increase in
litigation. See id., 119–120 (concluding that desirability
of promoting local business if duty was recognized out-
weighed relatively small potential increase in litigation);
see also Lawrence v. O & G Industries, Inc., supra,
319 Conn. 658–61 (concluding that recognition of duty
would cause increase in litigation with no correspond-
ing increase in safety on industrial and construction
work sites.); Jarmie v. Troncale, supra, 306 Conn.
613–14 (‘‘expanding the duty of a health care provider
to an unforeseen victim of a patient’s unsafe driving
[w]ould interfere significantly with a health care provid-
er’s discretion to treat and counsel patients in accor-
dance with an assessment of the patient’s individual
needs,’’ while inevitably increasing number of actions
against health care providers). Thus, the relevant
inquiry in the present case is whether recognizing a duty
in this context would further encourage conservators
to use reasonable care in their administration of the
ward’s estate and, if so, whether the advantages of
encouraging such behavior would outweigh the nega-
tive effects of a corresponding increase in litigation.
Our statutory scheme—or lack thereof—with respect
to conservator liability has created a liability ‘‘loop-
hole.’’ Conservators are able to escape liability in cases
in which no probate bond is issued even if they act
negligently in carrying out their duties.9 As discussed
in part II A of this opinion, § 45a-655 (a) imposes certain
statutory duties on conservators. Interestingly enough,
however, our statutes do not provide any corresponding
statutory cause of action to third parties who are
harmed by a conservator’s negligent failure to perform
his or her duties when no probate bond is issued. Thus,
it is likely that recognizing that a conservator can be
held liable for his or her negligence even without a
probate bond would incentivize conservators to carry
out their duties in a timely manner and with due care,
whereas someone else who is already exposed to this
type of liability would not be so incentivized. See Law-
rence v. O & G Industries, Inc., supra, 319 Conn. 659
(‘‘[W]e observe that expanding the defendants’ liability
in this industrial accident context to include the purely
economic damages suffered by other workers on site
appears likely to increase the pool of potential claim-
ants greatly. At the same time, the recognition of such a
duty fails to provide a corresponding increase in safety,
given that companies like the defendants are subject
to extensive state and federal regulation, and already
may be held civilly liable to a wide variety of parties
who may suffer personal injury or property damage as
a result of their negligence in the industrial or construc-
tion context.’’ [Footnote omitted.]).
Furthermore, we do not agree with the defendant
that allowing the plaintiff to bring a negligence action
against him would discourage individuals from
accepting the role of conservator of the estate. As we
discussed in part II A of this opinion, the conservator
of the estate already has a duty to pay their ward’s debt
and to use the assets of the estate to support the ward,
which necessarily includes timely securing any avail-
able public assistance if the ward lives in a nursing
home and is unable to pay for the cost of his or her
care. See General Statutes § 45a-655 (a); Jewish Home,
supra, 257 Conn. 538–44; Office of the Probate Court
Administrator, Connecticut Standards of Practice for
Conservators (2018), standard 17 I E, available at
http://www.ctprobate.gov/Documents/Connecticut%20
Standards%20of20Practice%20for%20Conservators.pdf
(last visited October 3, 2018). We are therefore not
imposing any additional duties on the conservator of
the estate that he or she is not already required to
perform. See Gazo v. Stamford, supra, 255 Conn. 254
(rejecting snow removal company’s public policy argu-
ment that recognizing duty to third parties ‘‘would be
too burdensome because independent contractors
would be liable to innumerable third parties, thereby
creating a disincentive to contractors from doing this
kind of business’’ and concluding that ‘‘[a]lthough we
agree that contractors may be liable to parties whom
they could not have necessarily identified specifically
when entering into the original contract, they always
have had a duty to perform their work in a nonnegligent
manner, and our conclusion does no more than to hold
contractors liable to those parties foreseeably injured
by their negligence’’).
The defendant also argues that recognizing a duty in
this context would increase litigation. Although we
agree that recognizing such a duty would expose con-
servators to a new type of liability, we conclude that
any corresponding increase in litigation would be mini-
mal and not enough to outweigh the advantages of
encouraging conservators to perform their obligations
with due care. First, there likely would be no need
to bring an action against a conservator in his or her
personal capacity in cases where a probate bond was
issued because, in those cases, an action could be
brought on the bond. Second, the nature of the relation-
ship between a conservator and a nursing home is not
normally contentious or fertile ground for litigation in
the first instance. See Gross v. Rell, supra, 304 Conn. 258
(Our Supreme Court considered whether conservators,
like guardians ad litem, should be entitled to quasi-
judicial immunity for discretionary acts and concluded:
‘‘The role of a guardian ad litem for children in the
inherently hostile setting of a marital dissolution pro-
ceeding . . . is distinguishable . . . from the role of
a court-appointed conservator. It is all but inevitable
that, in a dissolution proceeding, at least one of the
parties will be disgruntled by the guardian ad litem’s
conduct towards the children and his or her recommen-
dations concerning their best interests. Accordingly,
without immunity, the guardians would act like litiga-
tion lightning rods. . . . In contrast, it is not all but
inevitable that conservators will act as litigation light-
ing rods for third party claims because there is no
such inherent conflict between the conservatee’s inter-
ests and the interests of others.’’ [Citation omitted;
emphasis added; internal quotation marks omitted.]).
Finally, with respect to the ‘‘safety’’ of the partici-
pants of the activity, we find it particularly worrisome
that, if we decline to recognize that the defendant owed
the plaintiff a duty in the present case, the plaintiff
and other nursing homes similarly situated will be left
without a remedy that would allow them to recover
losses sustained as a result of a conservator’s negli-
gence in cases where no probate bond is issued. The
defendant argues that the plaintiff could have (1)
requested the issuance of the probate bond itself, or
(2) pursued a claim directly against Johnson’s estate.
We disagree with the defendant that the pursuit of either
of these alternatives would suffice to make the plain-
tiff whole.
We find the defendant’s suggestion that the nursing
home that houses the ward, rather than the conservator
of that ward’s estate, should be required to ask the court
to issue a probate bond to be unfair and unrealistic, as
it would require a nursing home to monitor probate
proceedings to ensure that a probate bond has been
issued for each of its patients for which a conservator
has been appointed. Imposing this obligation seems
unnecessary considering that the issuance of a probate
bond is already mandated by statute in certain circum-
stances. See General Statutes § 45a-139 (c); see also
Probate Court Rules § 35.1 (b). Moreover, this potential
avenue of recovery exists only if a nursing home acts
preemptively on an assumption that a conservator will
act negligently which, once again, seems unnecessary
considering that a conservator already has certain statu-
tory duties that require the conservator to pay the
ward’s debts and to use the estate to support the ward.
See General Statutes § 45a-655 (a).
Pursuing a direct claim against a ward’s estate would
likewise be a fruitless endeavor for the plaintiff and
other similarly situated nursing homes that encounter
this issue because, typically, the ward’s estate is insol-
vent. To obtain Medicaid benefits, an applicant must
have less than $1600 in assets. Furthermore, because
the cost of care at a nursing home is so expensive, even
those individuals that have a considerable amount of
assets in their estate likely will not be able to pay for
the long-term costs of care. In those instances, the con-
servator should ‘‘spend down’’ the ward’s assets so that
the ward becomes eligible to receive Medicaid benefits,
meaning that the ward’s estate becomes insolvent for
all practical purposes. See Ross v. Giardi, supra, 237
Conn. 555–74. Therefore, pursuing a third-party claim
against the estate would often be fruitless.
Having considered all the relevant concerns of the
parties, we conclude that the benefits of encouraging
conservators to carry out their duties with care and
preventing financial harm outweigh any corresponding
minimal increase in litigation. Thus, the second and
third factors support the plaintiff’s claim that the defen-
dant owed it a duty of care.
C
The fourth and final factor that we consider in con-
ducting our public policy analysis is the law of other
jurisdictions on this issue. See Jarmie v. Troncale,
supra, 306 Conn. 615. The plaintiff and the defendant
both agree, and our independent research confirms,
that no other reported decisions from other jurisdic-
tions have decided the exact issue in this case, i.e.,
whether a conservator can be held personally liable to
a nursing home facility or other third-party creditor,
under a common-law theory of negligence, for failure
to use care in performing his or her duties.
Several of our sister states, however, have enacted
legislation that allows a third party to bring a statutory
cause of action against a conservator if the conservator
commits a tort in the course of the administration of
the estate or the conservator otherwise is personally
at fault for the party’s loss. See Ala. Code § 26-2A-157
(b) (1975) (‘‘[t]he conservator is personally liable for
obligations arising from ownership or control of prop-
erty of the estate or for torts committed in the course
of administration of the estate if personally at fault’’);
Ariz. Rev. Stat. Ann. (1997) § 14-5429 (B) (same); Colo.
Rev. Stat. § 15-1.5-112 (2) (b) (1999) (custodial trustee
liable to third parties for obligations arising from con-
trol of custodial trust property or for tort committed
in course of administration of custodial trust where
custodial trustee is personally at fault); D.C. Code § 21-
2074 (b) (2001) (‘‘[t]he conservator is personally liable
for obligations arising from ownership or control of
property of the estate or for torts committed in the
course of administration of the estate . . . if person-
ally at fault’’); Haw. Rev. Stat. § 560:5-430 (b) (2004)
(same); Idaho Code Ann. § 68-1312 (2) (b) (1989); Mass.
Gen. Laws ch. 190b, § 5-428 (b) (2009) (conservator
can be held personally liable if personally at fault for
obligations arising from ownership or control of prop-
erty of estate or torts committed in course of adminis-
tration of estate); Minn. Stat. § 524.5-430 (b) (2003); Mo.
Rev. Stat. § 475.132 (2) (1983); N.J. Stat. Ann. § 3b:13A-
29 (1983); N.C. Gen. Stat. § 33B-12 (b) (2) (1995); S.C.
Code Ann. § 62-5-429 (b) (1976); W. Va. Code § 44A-3-
14 (c) (2000).
The recognition by so many of our sister states of
this statutory cause of action is significant with respect
to our public policy analysis. Statutes do not exist in
a vacuum, and ‘‘it is well established that statutes are
a useful source of policy for common-law adjudication,
particularly when there is a close relationship between
the statutory and common-law subject matters.’’ (Inter-
nal quotation marks omitted.) Hopkins v. O’Connor,
282 Conn. 821, 844, 925 A.2d 1030 (2007) (recognizing
need for consistency between statutory scheme and
common law and declining to extend common-law
absolute immunity to officer’s actions where statute
imposed criminal liability for same actions); see also
DeMaria v. DeMaria, 247 Conn. 715, 721, 724 A.2d 1088
(1999) (considering statutory definition of ‘‘cohabita-
tion’’ in determining meaning of that term as used in
dissolution judgment; statute was useful source of com-
mon-law policy and could be used as definitional
source); Williams Ford, Inc. v. Hartford Courant Co.,
supra, 232 Conn. 580–82 (concluding that policy under-
lying statute should apply to negligent misrepresenta-
tion as matter of common law). Indeed, statutes ‘‘are
now central to the law in the courts, and judicial law-
making must take statutes into account virtually all of
the time . . . .’’ (Internal quotation marks omitted.)
Hopkins v. O’Connor, supra, 845. We can therefore
glean from the fact that so many of our sister states
have recognized this statutory cause of action that the
legislatures of those states believed that third parties
should have a right to recover for harm caused to them
by a conservator’s negligence.
The defendant argues that the fact that no other states
have considered whether a third party can bring an
action against a conservator under a common-law the-
ory of negligence weighs against recognizing that the
defendant owed the plaintiff a duty of care. The fact
that those states allow a third party to bring a statutory,
rather than a common-law, cause of action is of no
consequence to our consideration of whether public
policy favors recognizing a duty of care. Instead, the
relevant observation for purposes of the present analy-
sis is that other jurisdictions recognize that principles
of fairness weigh in favor of providing a third party
with a remedy in the event that a conservator acts
negligently and, as a result of that negligence, causes
a third party to suffer harm. The fourth prong of our
public policy analysis therefore also supports the plain-
tiff’s claim that the defendant owed it a duty of care in
the present case.
III
CONCLUSION
We therefore conclude, having considered whether
the harm suffered by the plaintiff was foreseeable and
all relevant public policy concerns, that the defendant
owed the plaintiff a duty to use reasonable care in
performing his duties as conservator of Johnson’s
estate, which necessarily included timely submitting
Johnson’s application for Medicaid benefits in order to
obtain available public assistance funds for the cost
of Johnson’s necessary and critical care provided by
the plaintiff.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
1
General Statutes (Rev. to 2013) § 45a-648 provided, in relevant part, that
‘‘[a]n application for involuntary representation may be filed by any person
alleging that a respondent is incapable of managing his or her affairs or
incapable of caring for himself or herself and stating the reasons for the
alleged incapability. . . .’’
2
The plaintiff does not seek to recover the debt accrued to it by Johnson
prior to the defendant’s appointment as conservator of Johnson’s estate.
3
See Office of the Probate Court Administrator, Connecticut Standards of Practice
for Conservators (2018), available at http://www.ctprobate.gov/Documents/Connecticut
%20Standards%20of20Practice%20for%20Conservators.pdf (last visited October 3, 2018).
4
Unlike the defendant in Jewish Home, who was appointed as conservator
of the ward’s estate and person, the defendant in the present case was
appointed conservator of Johnson’s estate only. Our Supreme Court in Jew-
ish Home relied on both § 45a-655 (a), which sets forth the duties of a
conservator of the estate, and § 45a-656 (a), which sets forth the duties of
a conservator of the person, in concluding that Cantore owed the plaintiff
nursing home a duty to timely complete his ward’s application for Medicaid
benefits. Id., 539–43. Section 45a-656 (c) provides that the conservator of
the person shall carry out his or her duties ‘‘either through the conserved
person’s own estate or through private or public assistance.’’ At the time
Jewish Home was decided, this language was included in subsection (a) of
§ 45a-656. Jewish Home, supra, 257 Conn. 540. For the reasons set forth in
part II A of this opinion, we conclude that the fact that § 45a-656 references
public assistance in this way does not undermine our ultimate determination
that the conservator of the estate has a duty to assist the ward in applying
for and obtaining public assistance.
5
The defendant also cites Krawczyk v. Stingle, 208 Conn. 239, 543 A.2d
733 (1988), seemingly for the proposition that Connecticut’s statutory
scheme does not warrant holding conservators liable to third-party creditors
of the ward. Our Supreme Court in Krawczyk considered whether an attor-
ney could be held liable to the intended beneficiaries of his client’s estate
for his failure to arrange for timely execution of the client’s estate planning
documents. Id., 240. The court concluded that the defendant attorney could
not be held liable to the beneficiaries because he did not owe them a duty
of care. Id., 245–48. In its analysis of this issue, our Supreme Court noted
that ‘‘[d]etermining when attorneys should be held liable to parties with
whom they are not in privity is a question of public policy.’’ Id., 245. The
court then went on to explain that, in addressing whether an attorney should
be held liable to a third party, ‘‘courts have looked principally to whether
the primary or direct purpose of the transaction was to benefit the third
party. . . . Additional factors considered have included the foreseeability
of harm, the proximity of the injury to the conduct complained of, the policy
of preventing future harm and the burden on the legal profession that would
result from the imposition of liability.’’ (Citations omitted.) Id., 245–46.
In its analysis, the court placed significant weight on the fact that ‘‘[a]
central dimension of the attorney-client relationship is the attorney’s duty
of [e]ntire devotion to the interest of the client. . . . This obligation would
be undermined were an attorney to be held liable to third parties if, due to
the attorney’s delay, the testator [client] did not have an opportunity to
execute estate planning documents prior to death. Imposition of liability
would create an incentive for an attorney to exert pressure on a client to
complete and execute estate planning documents summarily. Fear of liability
to potential third party beneficiaries would contravene the attorney’s pri-
mary responsibility to ensure that the proposed estate plan effectuate[d]
the client’s wishes . . . .’’ (Citations omitted; internal quotation marks omit-
ted.) Id., 246.
Krawczyk is easily distinguishable for two reasons. First, the analysis in
that case is controlled by the unique nature of the relationship between an
attorney and his or her client, which is characterized by the attorney’s duty
of steadfast devotion to the interests of the client. See id.; see also Rules
of Professional Conduct 1.7. Second, the imposition of liability here would
not undermine the relationship between a conservator and the ward in the
same way—in fact, doing so would arguably advance that relationship,
because it would encourage conservators to carry out their duties to the
ward with due care. See part II B of this opinion.
6
General Statutes § 19a-533 (a) defines a ‘‘nursing home’’ in relevant part
as ‘‘any chronic and convalescent facility or any rest home with nursing
supervision . . . which has a provider agreement with the state to provide
services to recipients of funds obtained through Title XIX of the Social
Security Amendments of 1965 . . . .’’
7
We also note that, historically, many nursing homes have struggled to
remain solvent. See General Statutes § 17b-339 (establishing nursing home
financial advisory committee to ‘‘examine the financial solvency of nursing
homes on an ongoing basis and to support the Departments of Social Services
and Public Health in their mission to provide oversight to the nursing home
industry on issues concerning the financial solvency of and quality of care
provided by nursing homes’’); see also Conn. Joint Standing Committee
Hearings, Public Health, Pt. 10, 2017 Sess., p. 4780 (president and chief
executive officer of Connecticut Association of Health Care Facilities noting
that, in many larger urban nursing home facilities, percentage of Medicaid
residents is close to 70 percent and that industry is in period of financial
instability); Conn. Joint Standing Committee Hearings, Public Health, Pt. 6,
2009 Sess., p. 1763-65 (executive vice president of Connecticut Association
of Health Care Facilities discussing in relation to Senate Bill No. 845, titled
‘‘An Act Concerning Oversight of Nursing Homes,’’ insolvent nursing homes
in state).
8
Generally, our cases that have applied this test have referred to the
‘‘safety of the participants’’ because those cases involve activities that typi-
cally result in physical rather than financial harm. See Lawrence v. O & G
Industries, Inc., supra, 319 Conn. 659. That phraseology is somewhat inapt
in circumstances, such as here, involving only allegations of financial harm.
Thus, when we address the ‘‘safety’’ of the participants, we refer to the risk
of financial harm presented by the alleged negligence.
9
Pursuant to § 35.1 (b) of the Probate Court Rules, the Probate Court
has broad discretion to waive the requirement of a probate bond.