Cefaratti v. Aranow

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 CEFARATTI v. ARANOW—DISSENT

ZARELLA, J., with whom ESPINOSA and ROBINSON,
Js., join, dissenting. In elementary school history, we
are all taught that the legislature makes the law, the
judiciary interprets the law, and the executive enforces
the law. Those who are learned in the law, however,
understand that this is an oversimplification of our con-
stitutional order. Since before the founding, judges in
England, from whom the judiciary takes many of its
traditions, and this country, acting as stewards of the
common law, have engaged in lawmaking. As such,
judges, not legislators, at least in the early years of our
republic, tended to the development of the law in such
areas as property, contract, and tort. Thus, a disconnect
exists between our elementary understanding of the
separation and delegation of the powers and duties of
government, on the one hand, and the actual allocation
of work among the branches, on the other. In addition,
there is a small area over which both the judiciary and
the legislature have the authority to enact policy. In the
beginning, such dual authority was relatively unprob-
lematic. Legislatures largely dealt with public law, and
the courts tended to private law. See, e.g., D. Farber &
P. Frickey, ‘‘In the Shadow of the Legislature: The Com-
mon Law in the Age of the New Public Law,’’ 89 Mich.
L. Rev. 875, 876 (1991). In the age of the regulatory state
and statutory proliferation, however, the legislature has
become increasingly involved with private law; see, e.g.,
General Statutes § 30-102 (abrogating common-law neg-
ligence cause of action against purveyors of alcohol
for injuries caused by intoxicated persons); General
Statutes § 52-557d (abolishing common-law defense of
charitable immunity); General Statutes § 52-572h (b),
(c) and (l) (eliminating, in certain cases, doctrine of
contributory negligence, providing for proportionate,
rather than joint and several, liability in cases involving
multiple tortfeasors, and abolishing doctrines of last
clear chance and assumption of risk); raising this prag-
matic question: What is the role of the common-law
judge in the era of the ever engaged legislature? The
present case brings this question to the forefront.
Before I reach that question, however, I must attend
to a preliminary matter. The plaintiff in the present
case, Lisa J. Cefaratti, claims that the Appellate Court
incorrectly concluded that the doctrine of apparent
agency does not extend to tort actions, thereby pre-
venting her from holding the defendant Middlesex Hos-
pital (hospital) vicariously liable for the alleged neg-
ligence of the named defendant, Jonathan S. Aranow,
a surgeon who is not an employee of the hospital but
who has privileges to and does perform surgeries at
the hospital. The plaintiff argues that such conclusion
is contrary to our holdings in Fireman’s Fund Indem-
nity Co. v. Longshore Beach & Country Club, Inc.,
127 Conn. 493, 496–97, 18 A.2d 347 (1941), which, she
contends, recognized that the apparent agency doctrine
is applicable to tort actions, and Hanson v. Transporta-
tion General, Inc., 245 Conn. 613, 617 n.5, 716 A.2d
857 (1998), which, she argues, implicitly affirmed the
doctrine’s availability in tort cases. In response to the
hospital’s argument that this court has extended appar-
ent authority to tort actions but has not, and should
not, extend apparent agency to such cases, the plaintiff
contends that this court’s jurisprudence does not distin-
guish between the two doctrines.
I need not decide whether our case law recognizes
a difference between apparent agency and apparent
authority or, if it does, whether such distinction pro-
vides a principled reason for applying one doctrine to
tort actions but not the other. Instead, I conclude that
this court has never decided whether either doctrine
should be available to plaintiffs seeking to hold individu-
als or entities vicariously liable for the tortious conduct
of another. I must, therefore, consider that question as
a matter of first impression.
In Fireman’s Fund Indemnity Co., the plaintiff
insurer brought a subrogation action against the defen-
dant country club (club), among others, to recover for
amounts the insurer had paid to its insured for damages
caused to the insured’s vehicle by an employee of the
club. Fireman’s Fund Indemnity Co. v. Longshore
Beach & Country Club, Inc., supra, 127 Conn. 493–94.
The insurer claimed, among other things, that the club’s
employee was acting within his implied or apparent
authority and, therefore, that the club could be held
liable for the employee’s negligence. See id., 496. In
addressing the insurer’s argument, this court did not
decide, or even discuss, whether the club could be held
vicariously liable for the negligence of the employee
under a theory of apparent authority. Instead, relying
on two contract cases, namely, Quint v. O’Connell, 89
Conn. 353, 94 A. 288 (1915), and Zazzaro v. Universal
Motors, Inc., 124 Conn. 105, 197 A. 884 (1938), the court
in Fireman’s Fund Indemnity Co. merely concluded
that the insurer had not established that the employee
was, in fact, acting within his apparent authority. Fire-
man’s Fund Indemnity Co. v. Longshore Beach &
Country Club, Inc., supra, 496–97. The plaintiff claims
that implicit in this holding is that the doctrines of
apparent authority and apparent agency do apply to
tort actions because, in the plaintiff’s view, we would
not have decided whether the employee had acted
within his apparent authority if the doctrine did not
apply.
In a similar vein, and despite its acknowledgment
that the court in Fireman’s Fund Indemnity Co. ‘‘did
not expressly analyze the issue,’’ the majority in the
present case concludes that Fireman’s Fund Indem-
nity Co. applied the doctrine of apparent authority to
tort actions. The majority reasons that the there is no
language in Fireman’s Fund Indemnity Co. to suggest
that the court was simply assuming, without deciding,
that the club could be held vicariously liable for the
employee’s negligence under that doctrine. In addition,
the court in Hanson, the majority and the plaintiff argue,
recognized Fireman’s Fund Indemnity Co. as applying
apparent authority in tort actions. Finally, the majority
cites the hospital’s acknowledgment that Fireman’s
Fund Indemnity Co. extended the doctrine of apparent
authority to tort actions.
I respectfully disagree with the plaintiff’s and the
majority’s reading of Fireman’s Fund Indemnity Co.,
and their rationales for such a reading. First, I doubt
that this court adopted a liability expanding doctrine
without some consideration and discussion. Generally,
this court weighs the relevant policy considerations
when deciding whether to expand or limit tort liability
by adopting new doctrines or creating new causes of
action. See, e.g., Campos v. Coleman, 319 Conn. 36, 57,
123 A.3d 854 (2015) (recognizing new cause of action
for loss of parental consortium after evaluating relevant
public policy factors and concluding that factors weigh
in favor of recognizing such claim); Sic v. Nunan, 307
Conn. 399, 401, 412, 54 A.3d 553 (2012) (declining to
recognize duty of driver to position wheels of vehicle
straight while waiting to make left turn, noting that
there were no ‘‘public policy concerns that would justify
the imposition of new liability’’); Craig v. Driscoll, 262
Conn. 312, 328–29, 813 A.2d 1003 (2003) (recognizing
‘‘a common-law negligence action for injuries caused
by an intoxicated adult patron against purveyors of
alcoholic liquor’’ because such action would supple-
ment and further state’s public policy goals as
expressed through enactment of Dram Shop Act);
Hamon v. Digliani, 148 Conn. 710, 716–18, 174 A.2d
294 (1961) (abolishing privity of contract requirement
in breach of warranty cases, thereby laying foundation
for strict product liability, noting that other jurisdictions
have done so ‘‘on [the basis of] the public policy of
protecting an innocent buyer from harm,’’ and observ-
ing change in how products are delivered from manufac-
ture to end consumer). In the absence of any indication
that the court in Fireman’s Fund Indemnity Co. gave
any thought to the policy considerations implicated by
a decision to extend liability to purported principals
by adopting the doctrine of apparent authority in tort
actions, I will not so readily assume that it did. Second,
neither the plaintiff insurer nor the defendant club in
Fireman’s Fund Indemnity Co. briefed the issue of
whether apparent authority should apply in tort
actions;1 see generally Fireman’s Fund Indemnity Co.
v. Longshore Beach & Country Club, Inc., Conn.
Supreme Court Records & Briefs, December Term,
1940, Pt. 1, Plaintiff’s and Defendants’ Briefs; and it is
the policy of this court to refrain from addressing issues
not raised by the parties. See, e.g., Blumberg Associates
Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., 311 Conn. 123, 142, 84 A.3d 840 (2014) (‘‘It is well
settled that [o]ur case law and rules of practice gener-
ally limit [an appellate] court’s review to issues that
are distinctly raised at trial. . . . [O]nly in [the] most
exceptional circumstances can and will this court con-
sider a claim, constitutional or otherwise, that has not
been raised and decided in the trial court.’’ [Citations
omitted; internal quotation marks omitted.]); see also
id., 128 (holding, ‘‘with respect to the propriety of a
reviewing court raising and deciding an issue that the
parties themselves have not raised, that the reviewing
court [1] must do so when that issue implicates the
court’s subject matter jurisdiction, and [2] has the dis-
cretion to do so if [a] exceptional circumstances exist
that would justify review of such an issue if raised by
a party, [b] the parties are given an opportunity to be
heard on the issue, and [c] there is no unfair prejudice
to the party against whom the issue is to be decided’’).
Third, it is not uncommon for this court to avoid answer-
ing legal questions that do not affect the outcome of a
case. See, e.g., State v. Bacon Construction Co., 300
Conn. 476, 480, 482, 15 A.3d 147 (2011) (assuming with-
out deciding that Convalescent Center of Bloomfield,
Inc. v. Dept. of Income Maintenance, 208 Conn. 187,
194–95, 544 A.2d 604 [1988], which allows immediate
appeal from denial of collateral estoppel defense in
context of administrative proceedings, should not be
overruled because that case did not extend to prejudg-
ment remedy proceeding). Thus, the plaintiff assumes
too much in her assertion that the court in Fireman’s
Fund Indemnity Co. must have decided that the doc-
trine of apparent authority applies in tort cases because
it decided that the plaintiff insurer had not established
that the employee was acting within his apparent
authority. Fourth, this court’s cursory statement in
Hanson, in a parenthetical in a footnote, that Fireman’s
Fund Indemnity Co. ‘‘appl[ied] similar [actual, implied,
or apparent] agency principles in [a] tort action’’; Han-
son v. Transportation General, Inc., supra, 245 Conn.
617 n.5; does not transform Fireman’s Fund Indemnity
Co. into something it is not. As I have already explained,
the court in Fireman’s Fund Indemnity Co. merely
decided that the plaintiff insurer had not established,
as a factual matter, that the club employee was acting
within his apparent authority. Fireman’s Fund Indem-
nity Co. v. Longshore Beach & Country Club, Inc.,
supra, 127 Conn. 496–97. It did not decide to apply that
doctrine in a tort action. See id. Finally, we are not
confined by the parties’ mistaken readings of our case
law, and, therefore, I find it irrelevant that the hospital
in the present case also reads Fireman’s Fund Indem-
nity Co. to hold that the doctrine of apparent authority
applies in tort actions.
Because Fireman’s Fund Indemnity Co. does not
apply the doctrine of apparent authority or apparent
agency to tort actions, this court must decide in the
present case, as a matter of first impression, whether
such doctrine should be available to tort plaintiffs. Thus,
I return to the question that I previously raised: What
is the role of a common-law judge in the era of the
ever engaged legislature? In this particular case, which
involves the allocation of liability among the different
functionaries in a complex and highly regulated indus-
try, I believe it is wise to defer to the legislature to
address this issue in the first instance. Of course, I do
not dispute that this court has the authority to decide
the issue presented, as I have framed it. Instead, I simply
suggest that we should refrain from doing so, as a matter
of prudence.
This court has long espoused the principle that the
legislature, and not this institution, shall set the policy
of the state. See, e.g., Sic v. Nunan, supra, 307 Conn.
410 (declining to recognize duty of ‘‘drivers to keep their
wheels pointed in a particular direction when stopped at
an intersection waiting to turn,’’ in part because ‘‘it is
undisputed that the legislature, which has the primary
responsibility for formulating public policy . . . has
not seen fit to enact any statutes requiring [such con-
duct]’’ [citation omitted; internal quotation marks omit-
ted]); see also General Motors Corp. v. Mulquin, 134
Conn. 118, 132, 55 A.2d 732 (1947) (‘‘it is for the legisla-
ture, which is the arbiter of public policy, to determine
what [public policy] shall be’’); New Haven Metal &
Heating Supply Co. v. Danaher, 128 Conn. 213, 222, 21
A.2d 383 (1941) (‘‘the legislature determines the public
policy of the state’’); State v. Gilletto, 98 Conn. 702, 714,
120 A. 567 (1923) (‘‘[t]he legislature is the arbiter of
public policy’’). I acknowledge, as I must, that many
of these cases involved statutory law rather than the
common law and, therefore, are different from the pres-
ent case, which falls within the common-law sphere of
torts. Nevertheless, we have also recognized, in a
slightly different context, that ‘‘[i]t is not the role of this
court to strike precise balances among the fluctuating
interests of competing private groups’’; Cologne v. West-
farms Associates, 192 Conn. 48, 65, 469 A.2d 1201
(1984); such as, on the one hand, people who are simi-
larly situated to the plaintiff in the present case and,
on the other hand, hospitals and other health-care insti-
tutions. ‘‘That function has traditionally been performed
by the legislature, which has far greater competence
and flexibility to deal with the myriad complications
[that] may arise from’’ the assignment of liability. Id.
Striking a balance between competing private inter-
ests and public policy considerations undoubtedly has
been a function of the Legislative Branch due to its
institutional aptitude to address such issues. There are
a variety of questions that arise in the context of consid-
ering whether to expand liability and, relatedly, who
should bear the burden for such liability. For example,
in the present case, in determining whether hospitals
should be vicariously liable for the malpractice of non-
employee physicians and surgeons, a policy maker
might desire a comprehensive understanding of general
staffing arrangements at area hospitals, gather data
regarding the number and outcomes of malpractice
actions, and query the current remedies available to
malpractice victims and the inadequacy, if any, of such
remedies. Prior to making a determination, the decision
maker might also consider General Statutes § 20-11b
(a), which requires certain medical providers to main-
tain minimum liability insurance, and collect cases, if
any exist, in which such minimum coverage was insuffi-
cient to adequately compensate patients who had been
victims of medical malpractice.2 Additional factors ripe
for consideration are (1) the impact such expansion of
liability has had in other jurisdictions, on both hospital
financing and medical malpractice actions, and (2) the
myriad regulations that currently govern the health-
care industry and health-care providers. Through public
hearings, the legislature can collect data and receive
testimony in regard to such matters from industry lead-
ers and affected members of society, including the
plaintiff’s bar. The legislature may also consult outside
experts and elicit input from state regulators. Moreover,
the legislature can enact comprehensive reform, estab-
lishing the boundaries of liability and providing predict-
ability to health-care institutions and their insurers.
Finally, determining who should bear the burden for
harm caused by medical malpractice is a value judg-
ment, and the legislature, as an elected body, may be
held accountable if the allocation it makes is not in line
with societal values.
In contrast, the Judicial Branch is ill equipped to
methodically address questions of liability expansion
with potentially far-reaching societal consequences. In
answering such a question, courts are limited to the
record created and the evidence introduced by the par-
ties. See, e.g., West Farms Mall, LLC v. West Hartford,
279 Conn. 1, 27, 901 A.2d 649 (2006) (observing that
appellate ‘‘review is limited to matters in the record’’).
Moreover, courts, unlike the legislature, are not free to
consult outside sources and to collect their own data.
Instead, they are confined by rules of judicial notice.
See, e.g., Moore v. Moore, 173 Conn. 120, 121–22, 376
A.2d 1085 (1977) (‘‘[o]ur own cases have attempted to
draw a line between matters susceptible of explanation
or contradiction, of which notice should not be taken
without giving the affected party an opportunity to be
heard . . . and matters of established fact, the accu-
racy of which cannot be questioned . . . which may be
judicially noticed without affording a hearing’’ [citations
omitted]). In addition, courts are limited to deciding
the cases and questions before them. Consequently,
they develop policy on an ad hoc basis and on the
basis of the facts presented in each case, which creates
uncertainty. The present case provides an example.
Despite holding that hospitals, in some cases, may be
vicariously liable for the negligence of nonemployee
physicians and surgeons, the majority does not decide
whether an exception for such liability should exist
when the hospital informs patients that certain physi-
cians or surgeons are not employed by the hospital.
See footnote 27 of the majority opinion. Instead, the
majority simply states that that question is not before
the court in this case, and, therefore, it must be left for
another day. Id. Finally, members of this court, unlike
the elected bodies of government, cannot be held
accountable for the value judgments they reach.
Additionally, deference to the legislature seems to
be a particularly prudent course of action in the present
case because hospitals are highly regulated institutions
within a highly regulated industry. Hospitals are subject
to certificate of need requirements, limiting their ability,
for example, to purchase certain equipment or to add
and discontinue certain services without first receiving
approval from the Department of Public Health. See
General Statutes § 19a-638 (a). In addition, hospitals
are licensed by the Department of Public Health and
must comply with regulations regarding, among other
things, physical plant, medical staffing, medical records,
and emergency planning. See, e.g., Regs., Conn. State
Agencies §§ 19-13-D3, 19-13-D4a and 19-13-D5. As a
payor of health-care services, the state also has a large
impact on hospital financing. See, e.g., General Statutes
§ 17b-239 (a) (2) (‘‘Medicaid rates paid to acute care
and children’s hospitals shall be based on diagnosis-
related groups established and periodically rebased by
the Commissioner of Social Services’’). Due to the com-
plex regulatory scheme governing health-care facilities,
it is my view that this court should not disturb the
careful balance that the legislature has achieved by
exposing hospitals to vicarious liability for injuries
caused by nonemployees. Instead, I would defer to the
judgment of the legislature.
In sum, the arrival of any new era is necessarily
accompanied by the end of another. Thus, the modern
age of growing complexity and rapid change, in my
view, brings to an end the period in which this court
should make sweeping, common-law jurisprudential
changes.3 Instead, the legislature, which has become
ever engaged in the common-law sphere, is institution-
ally better equipped to continue the development of the
common law. Moreover, the legislature, an elected body
with public processes, is designed to reflect the morality
and experience of our time. Law giving by the legislature
is more democratic, and it also is less likely to do serious
harm. Accordingly, I conclude that this court should
refrain from recognizing the doctrine of apparent
agency in tort actions and, instead, defer to the judg-
ment of the legislature regarding whether hospitals
should be subject to vicarious liability for the malprac-
tice of nonemployee health-care providers. Therefore,
I respectfully dissent.
1
It does not appear that the trial court in Fireman’s Fund Indemnity
Co. considered the applicability of the doctrine of apparent authority to tort
actions either. See Fireman’s Fund Indemnity Co. v. Longshore Beach &
Country Club, 5 Conn. Supp. 165, 166–68 (1937), aff’d, 127 Conn. 493, 18
A.2d 347 (1941). Indeed, it framed the issue of the club’s liability as follows:
‘‘The first question is whether or not the employee . . . was [the defendant
club’s] agent and servant and this, in turn, depends [on] whether, at the
time, he was either acting within the scope of his employment in respect
of a duty, express or implied, imposed [on] him by [the club].’’ (Emphasis
added.) Id., 166–67.
2
It is certainly arguable that the enactment of such a requirement reflects
the legislature’s judgment that individual health-care providers, and not
hospitals, should be liable for their own negligence, and that, if the liability
insurance required by such statute is inadequate to provide relief to the
plaintiff in the present case and those individuals similarly situated, their
recourse is to ask the legislature to increase the minimum amount of cover-
age required.
3
There is a difference, of course, in correcting the common law, on the
one hand, and expanding or changing the course of the common law, on
the other. In the case of the former, this court should continue to exercise
its common-law authority to harmonize common-law rules with ‘‘[t]he felt
necessities of the time . . . .’’ O. Holmes, The Common Law (1881) p. 1.