Appellate Court Notes

by Pullman & Comley, LLC

Welcome to our Supreme and Appellate Court summaries.  Here, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my opinion . . . and when mistakes of trial counsel are highlighted because they triggered a particular outcome, I will try to be mindful of the adage . . . “There but for the grace of God . . ..”  I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted June 4, 2014

Plaintiff was appointed conservator over a young woman with psychological issues.  A married man befriended her over the internet.  She then suffered a stroke, limiting her mobility, and the married man started visiting her in her apartment.  The relationship development into one of sadomasochistic sex.  After seeing bruises on the young woman’s body, the conservator brought a lawsuit against the defendant asserting claims of intentional tort.  The young lady died while the case was pending, and the conservator substituted herself as administratrix of the estate as the plaintiff.  After a verdict for the defendant, the conservator appealed.

On appeal, the majority held that even if the conservator lacked standing to have brought the suit initially, any defect in jurisdiction was cured by the substitution of the administratrix as the proper party plaintiff.  C.G.S. § 52-109 allows the correct party to be substituted in an action.  This cured any defect in standing.

Next, the Appellate Court held that the Trial Court should have set aside the verdict for the defendant.  The plaintiff had moved to preclude an alleged letter (pre-marked as an ID - Exhibit) from the young lady to her landlord, complaining about the sexual advances by a janitor.  The plaintiff contended that the defendant had in fact created the letter.  The Trial Court granted the motion in limine.  Nonetheless, the Court Clerk mistakenly included the letter in the exhibits handed to the jurors.  Although plaintiff’s counsel reviewed the pile of exhibits, she did not catch that the letter had been included by mistake.  One or more jurors, however, later expressed concern about the letter to the Court Clerk, and asked to send a note to the Judge to inquire whether they should have been provided it, because no mention was made of it during the trial.  The Clerk assured the jurors that there was no need to bother the Judge, and all the exhibits were correct.  First the Supreme Court held the letter was never “evidence” in the case.  Pre-marking exhibits by counsel does not make something a full exhibit.  The pre-trial order did not suggest that pre-marking an exhibit dispensed with the need to introduce it into evidence at the time of trial.  The mere fact that plaintiff’s attorney had pre-marked the letter in question as an exhibit, did not bind her to introduce the exhibit, nor did that constitute a waiver of an objection to it being improperly presented to the jurors.  In any event, at the time of pre-marking, the motion in limine had not yet been granted so pre-marking made sense.  Plaintiff’s consistent objection to the preclusion of the letter dispenses with the suggestion that her missing its inclusion in the pile being delivered to the jurors was a knowing waiver.  Further, the Clerk’s error compounded this situation and deprived the plaintiff and the Court of an opportunity to rectify the mistake.  The Clerk’s action of answering a juror’s question on their own was an interference with the trial process.  Clerks must convey any jury questions to the Judge.  The submission of that letter to the jury was reversible error, because it likely prejudiced the jury on a central issue of the case.  The conservator claimed that the victim lacked the ability to consent to the sexual contact.  The purported letter shows her complaining to the landlord about the sexual advances of a janitor.  This would suggest she did have the capacity to reject the defendant’s advances, and therefore, it went to the core of the case.

On appeal, the plaintiff also asserted that on remand, the defendant should not be allowed to raise the issue of Kindall’s consent, because as a conserved person, she did not have the legal capacity to consent.  The Supreme Court agreed with the defendant that just because a person is conserved, does not deprive the person of the legal capacity to consent.  The decision goes through an extensive history of conservatorships.  The decision concludes that there is no bright line rule, and whether a conserved person has the ability to consent to sexual contact is a factual question for a jury to decide.  Nonetheless, it was proper for the Trial Court to instruct the jury that it may consider the fact that the victim was a conserved person. 

Justice Palmer concurred and dissented.  He would have found that the attorney waived her right to claim the exhibit was improperly submitted to the jury, when she did not catch the fact that the exhibit was being delivered to the jurors.  He would have then gone on, however, to find that the Court Clerk’s misconduct trumped such a waiver, because a Court Clerk should have informed the Court of the juror’s concerns. 

Justice McDonald concurred and dissented.  He would have found that a conservator, bringing an action in the name of the conserved person, is the equivalent of the person being the plaintiff themselves.  He agreed that a conservatorship is evidence of a person’s capacity, but not determinative of it.  He would have concluded, however, that the delivery of the exhibit to the jurors was harmless, as there was no proof that it impacted the jury’s deliberations.  (A Footnote to the Majority disagreed with this, noting that it bothered some jurors enough to bring it to the attention of the Clerk.) 

Justice Vertefeuille also concurred and dissented.  She agreed that the substitution of the administratrix conferred standing.  She agreed that whether someone has capacity to consent is a question of fact, notwithstanding the appointment of a conservator.  She agreed with McDonald and Palmer that, although plaintiff may have waived her objection to the submission of the exhibit, the subsequent mistake by the Clerk rendered the admission of the exhibit improper but would then flip back to agreeing with McDonald that nonetheless the admission of the exhibit appeared to have been harmless error.

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.  

[View source.]


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pullman & Comley, LLC | Attorney Advertising

Written by:

Pullman & Comley, LLC

Pullman & Comley, LLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.