Opinion
No. 4959.
Argued December 5, 1961.
Decided January 29, 1962.
1. The duty of a conservator to preserve, protect and maintain the ward's estate (RSA 462:4) includes the obligation to make a ward's tenement building produce income by renting it to others and in the performance of the obligation the conservator is required to exercise care that persons are not injured by a defective condition of the rented premises.
2. A conservator may be held personally liable to a tenant for injuries sustained as the result of the conservator's negligent maintenance of a common stairway appurtenant to the tenant's apartment in the ward's tenement building devoted to rent-producing income.
3. So also the ward, notwithstanding the fact of conservatorship, may be held liable for injuries sustained as the result of a defective condition of the premises owned by the ward and devoted to rent-producing income by the conservator.
4. The estate of a ward is chargeable for injuries sustained as the result of the conservator's negligent maintenance of the ward's premises devoted to rent-producing income.
5. A conservator in the management and control of the ward's real property is in the position of a trustee and the ward's estate is chargeable for the neglect of the conservator in the performance of his fiduciary duties in connection therewith.
Two actions of tort by the plaintiff to recover damages for personal injuries sustained in a building owned by the ward, Cesarie Gagne, while in the possession and control of her conservator, M. Claire Gagne, as a result of a fall upon a common stairway, appurtenant to the plaintiff's apartment, and alleged to have been negligently kept and maintained.
The Court (Morris, J.) transferred the following reserved case:
"The defendant, Cesarie Gagne, is the owner of certain premises situated and known as #229 Putnam Street in Manchester. The defendant, M. Claire Gagne, was appointed conservator of the defendant, Cesarie Gagne, on December 12, 1951 by a court of probate holden at Manchester and qualified by filing bond to the Judge of Probate. The Putnam Street premises consist of seven tenements and a store. The plaintiff was a tenant occupying the west-tenement on the fourth floor and he claims that he was injured on January 2, 1958, while a tenant, by a fall on the stairway leading from the first floor to the cellar of said premises; that the plaintiff claims that he had the right to the use of the stairway and the cellar as an appurtenance to his tenement in common with the other tenants and that the premises at the time of the accident and since her appointment as conservator were in the possession and control of the defendant, M. Claire Gagne in her said capacity.
"The plaintiff claims that the said stairs were carelessly, negligently and unlawfully constructed and at the time of the accident, and for a long time prior thereto, were carelessly, negligently and unlawfully maintained by M. Claire Gagne; the plaintiff also claims that the stairs were not adequately lighted.
"The plaintiff claims that he was owed the duty by the defendant, Cesarie Gagne, to provide for his use a properly constructed stairway and a properly lighted stairway and that by her failure to so provide the nails fastening the tread to the stringer became loosened and protruded above the surface of the tread causing the accident and injuries to the plaintiff complained of.
"The following questions of law are reserved and transferred before trial:
"1. Whether the Conservator is liable for any defective condition of the premises due to her negligence.
"2. If yes, is the ward's property chargeable therefor?
"3. Is the ward chargeable for such negligence of the Conservator during the conservatorship?
"4. Is the ward relieved from any duty to the plaintiff by reason of the appointment of a Conservator over her during the time of the conservatorship?"
Broderick, Manning Sullivan (Mr. Manning orally), for the plaintiff.
Osgood Osgood, Craig Craig and Arthur J. Costakis (Mr. Costakis orally), for the defendants.
The issues in this case are whether a plaintiff negligently injured by defective premises owned by a person under conservatorship may seek recovery against the conservator, or the ward and satisfy any judgment recovered out of the ward's estate. There is a scarcity of authority in this field and the decisions are in conflict. Prosser, Torts (2d ed. 1955) 792-793; Annot. 40 A.L.R. 2d 1103; 2 Harper James, Law of Torts, s. 26.12, p. 1412, second par. of footnote 11 (1956).
In this state a conservator may be appointed for the estate of a person who is either mentally or physically disabled upon his application to the probate court. A conservatorship differs from a guardianship in that it is voluntary rather than involuntary, is limited to the estate of the ward, and it is not necessary that the ward be mentally incompetent in order for a conservator to be appointed. Crawford v. Widett, 100 N.H. 115; Morse v. Trentini, 100 N.H. 153; N. Y. Law Revision Commission Report (1953) 601; Annot. 113 A.L.R. 354. Our statute reads as follows: "RSA 464:17 APPOINTMENT FOR PERSONS INCAPABLE OF MANAGING OWN AFFAIRS. Whenever any person shall deem himself unfitted by reason of infirmities of age, or by other mental or physical disability, for the management of his affairs with prudence and understanding, he may apply to the probate court for the appointment of a conservator of his property, and thereupon the judge of probate may, without notice or public hearing, appoint some suitable person as a conservator for him." RSA 464:18 further provides that a conservator shall "be subject to all provisions of law now in force as to guardians, so far as they apply to estates of their wards."
The first question is whether the conservator is personally liable for any defective condition of the premises due to her negligence. The conservator has a duty to preserve, protect and maintain the ward's estate. RSA 462:4; Restatement (Second), Trusts s. 176; Yeaton v. Skillings, 103 N.H. 352. In the present case this duty would necessarily include the obligation to make the tenement produce income by renting it since the ward would not have that authority while under conservatorship. Normandin v. Kimball, 92 N.H. 62; RSA 462:27. It was likewise the duty of the conservator after creating the relationship of landlord and tenant to exercise care that persons should not be injured by a defective condition of the rented premises. See Proal v. Camaan, 87 N.H. 389; Restatement (Second), Agency s. 355, comment a; Restatement, Torts, s. 387. There appears to be no reason or policy which would justify immunity of conservators from liability for their own negligence in maintaining the estate of their wards. Consequently, the answer to the first question is, yes, that the conservator is liable to the plaintiff if he was injured by any defective condition of the premises which was due to the conservator's negligence. See Newton v. Nutt, 58 N.H. 599, 601; Stevens v. Meserve, 73 N.H. 293, 297; Gobrecht v. Beckwith, 82 N.H. 415; Restatement, Torts, s. 383.
We next consider whether the ward may be liable to the plaintiff for any damages he may suffer as a result of the injury due to the defective condition of the premises owned by the ward. While the authorities are in conflict the third question is answered in the affirmative. It has long been the rule in this state and generally elsewhere that an incompetent person is liable for compensatory damages for his torts. Jewell v. Colby, 66 N.H. 399. In Morain v. Devlin, 132 Mass. 87, it was held that an incompetent person under guardianship was responsible for injuries caused by the defective condition of his property, the court stating that if the incompetent was to have the benefits he should not be exempt from the responsibilities of the ownership of real estate. This appears to be the better view. Prosser, Torts (2d ed. 1955) p. 792. If an infirm or incompetent person manages his own affairs, he is not shielded from liability and there would appear to be no reason why he should be shielded if his enterprise is on a larger scale so as to require management by a guardian or a conservator. See 2 Harper James, Torts, p. 1412 (1956).
When the Restatement of Torts was first published in 1934 there was an exception made to the standard of a reasonable man for insane persons and a caveat which read as follows: "The Institute expresses no opinion as to whether insane persons are required to conform to the standard of behaviour [behavior] which society demands of sane persons for the protection of the interests of others." Restatement, Torts, s. 283 at p. 744. In the 1948 supplement this exception and the caveat were stricken out. In 1959 the rule was stated as follows: "Unless the actor is a child, his insanity or other mental deficiency does not excuse conduct which does not conform to the standard of a reasonable man under like circumstances." Restatement (Second), Torts (tentative draft No. 4 (1959)) s. 283B. One of the reasons for this change is that it is as just to compensate innocent victims as it is to allow mental incompetents to be shielded from tort liability. If a mental incompetent can be held responsible for an intentional assault (McGuire v. Almy, 297 Mass. 323) there is little reason to excuse a person under conservatorship from liability for negligence, and such is the trend and better view of the law today. Restatement (Second), Torts (tentative draft No. 4 (1959)) s. 283B, note and cases cited pp. 23-24; 2 Harper James, Law of Torts, s. 26.12, p. 1412, second par. of footnote 11 (1956). The fourth question is answered in the negative.
Whether the ward's estate should be chargeable for torts committed by a conservator in the administration of the ward's estate is not free from difficulty. However, the modern tendency is to make a trust estate responsible for torts committed by the trustee in the administration of the trust. 3 Scott, Trusts (2d ed. 1956) s. 271A.2. While it is true that the title to the real estate is in the ward rather than the conservator, for all practical purposes the conservator is in a position of a trustee, is in actual control of the estate and it should be answerable for the neglect of the conservator in the performance of his fiduciary duties. Yeaton v. Skillings, 103 N.H. 352. See Bogert, Trusts Trustees (2d ed. 1960) s. 732, p. 542; Restatement (Second), Trusts s. 271A, comment c. The second question is answered in the affirmative.
Remanded.
All concurred.