Modise v. CareOne Health Services, LLC, 658 F.Supp.3d 44

Plaintiffs Motlalepula Modise, Morwesi Mmolawa, and Tirelo Mmolawa were live-in daytime personal care assistants (PCAs) employed by CareOne and brought FLSA and CMWA claims alleging unpaid overtime for sleep time interrupted by clients.
CareOne billed the Connecticut Department of Social Services (DSS) under Procedure Code 1023z for daytime live-in care; Defendant Abel Osagie (CareOne’s owner, appearing pro se) alleged Plaintiffs misreported clients’ nighttime needs and therefore caused under-reimbursement.
Osagie asserted multiple counterclaims against Plaintiffs, including negligence and negligence per se based on alleged failures to report interruptions, abandonment, and statutory violations regarding elder abuse/neglect reporting.
The Court previously denied summary judgment for Osagie on several counterclaims but identified potential grounds to grant Plaintiffs summary judgment on the negligence and negligence per se counterclaims and ordered Osagie to show cause under Federal Rule of Civil Procedure 56(f).
The Court concludes there is no genuine dispute of material fact as to (1) duty/foreseeability supporting Osagie’s negligence claims and (2) applicability of the cited statutes for negligence per se, and therefore enters judgment for Plaintiffs on those counterclaims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Plaintiffs owed a legal duty supporting negligence counterclaims	Plaintiffs argue no duty because the alleged lost-revenue harms were not foreseeable to PCAs	Osagie argues he suffered harm (lost DSS reimbursement or potential liability if Plaintiffs were injured due to sleep deprivation) traceable to Plaintiffs’ failure to report	Held for Plaintiffs: no foreseeable harm established; duty lacking, so negligence fails
Whether negligence per se exists from alleged violations of Conn. Gen. Stat. §§ 17a-412 and 17b-450	Plaintiffs: statutes protect elderly clients, not home-care agencies, so Osagie is not in protected class and claimed harms are not the type the statutes prevent	Osagie contends Plaintiffs violated mandatory-reporting statutes and thus are negligent per se	Held for Plaintiffs: statutes do not create negligence per se in favor of a home-care agency; §17a-412 inapplicable and §17b-450 protects elderly, not agency reimbursement interests
Whether Osagie may rely on a new theory of harm raised in response to the show-cause order	Plaintiffs: opposing party cannot amend theory in opposition; new theory is untimely and substantively speculative	Osagie advances a new theory (risk of employee injury and resulting liability) in his response	Held for Plaintiffs: new theory improperly raised in opposition and, in any event, injuries alleged are too remote/speculative to support duty

Anderson v. Liberty Lobby, 477 U.S. 242 (Sup. Ct. 1986) (summary-judgment standard: genuine issue for trial when reasonable jury could return verdict for nonmovant)
Celotex Corp. v. Catrett, 477 U.S. 317 (Sup. Ct. 1986) (adverse party bearing burden must designate specific facts showing genuine issue)
Gore v. People’s Sav. Bank, 235 Conn. 360 (Conn. 1995) (elements and framework for negligence per se analysis)
McDermott v. State, 316 Conn. 601 (Conn. 2015) (elements of negligence: duty, breach, causation, injury)
Ruiz v. Victory Props., LLC, 315 Conn. 320 (Conn. 2014) (duty is question of law; foreseeability inquiry for duty)
Jaworski v. Kiernan, 241 Conn. 399 (Conn. 1997) (public-policy step in duty inquiry)
Shah v. Helen Hayes Hosp., [citation="252 F. App'x 364"] (2d Cir. 2007) (party cannot use opposition to amend complaint)
Kee v. City of New York, 12 F.4th 150 (2d Cir. 2021) (summary-judgment evidence must be construed favorably to nonmovant)