Friday, April 12, 2013
S.C. to Rule on Scope of Assumption-of-Risk Doctrine
By a MetNews Staff Writer
The California Supreme Court has agreed to decide whether an elderly Alzheimer’s patient and her husband are liable for injuries a home health care worker sustained when the patient attacked her.
The high court, at its weekly conference in San Francisco Wednesday, voted 6-1 to review the Jan. 28 decision by Div. Five of this district’s Court of Appeal in Gregory v. Cott (2013) 213 Cal. App. 4th 41. Only Justice Marvin Baxter voted to leave the Court of Appeal’s 2-1 decision standing.
The panel held that the doctrine of assumption of risk barred the aide’s claims for injuries sustained when 85-year-old Lorraine Cott tried to grab a knife that the plaintiff, Carolyn Gregory, was washing. The knife cut Gregory’s left wrist, severing vital nerves and tendons, and causing her to lose the use of her left thumb and two fingers.
Cott’s husband, Bernard Cott, had contracted with a home care agency, CarenetLA, to provide the services of an in-home caregiver to care for his wife, who had suffered from Alzheimer’s disease for nine years and could not carry on a coherent conversation. He informed plaintiff at the outset that his wife was combative and engaged in “biting, kicking, scratching, [and arm] flailing.”
Justice Richard Mosk, writing for the court, said that while as a general rule persons have a duty to use due care to avoid injury to others, an exception is the doctrine of primary assumption of risk, which bars recovery by a plaintiff to whom the defendant owes no duty of care because of the nature of the activity involved.
While the main category of assumption of risk cases has traditionally been sports and recreational activities, the justice explained, another application is the so-called “firefighter’s rule.” It precludes an injured firefighter from recovering tort damages from the person who negligently starts a fire in which the firefighter, in the course of combating the fire, is injured.
The firefighter’s rule is based on the public policy that officers injured in the line of duty should be compensated through the public fisc rather than by individual tort recoveries, Mosk said. Since its formulation, the doctrine has been applied by California courts to other professions, including lifeguard and veterinarian.
In Herrle v. Estate of, Marshall (1996) 45 Cal.App.4th 1761, the court extended the notion of occupational assumption of risk to persons who care for Alzheimer’s patients in an institutional setting.
Finding that the rationale of Herrle applied equally to the facts in Gregory’s case, Los Angeles Superior Court Judge Gerald Rosenberg granted summary judgment in favor of the defendants, saying:
“It’s unfair to charge the defendant with a duty of care to prevent injury to the plaintiff arising from the very condition or hazard the defendant has contracted with the plaintiff to remedy or confront.”
The Court of Appeal majority agreed, saying there was no meaningful distinction between undertaking to care for an Alzheimer‘s patient in a convalescent hospital or other care facility and undertaking to care for such a patient in a private residence.
Having been Lorraine Cott’s caretaker for many years, Mosk said, Gregory could not have been under any illusions concerning her condition. Accordingly, she assumed the risk of the wife harming her.
Justice Sandy Kriegler concurred in the opinion.
Justice Orville Armstrong dissented on the grounds that the record did not establish that plaintiff was a “professional caregiver” or that the wife “was placed in plaintiff’s care.”
He noted that the plaintiff was not a licensed or certified health care professional, and that she had no direct supervision from a registered nurse or medical professional while employed in the Cott home. Her training in the care of those with Alzheimer’s disease consisted of “watching a video and visiting a nursing home with Alzheimer’s patients,” and her duties included feeding, bathing and dressing Lorraine Cott, as well as general housekeeping chores such as washing the dishes and doing the laundry.
In addition, Armstrong found the distinction between institutionalized care and home health care significant, saying that home health care workers are likely low wage workers who provide the most mundane, intimate and consistent care to incapacitated patients.
Fairness, Armstrong wrote, demands that defendants bear responsibility for the risk of injury, rather than “the hapless worker” who happens to be assigned to the home of one suffering from Alzheimer’s disease, rather than, for instance, one recovering from foot surgery.
The simple fact that plaintiff was paid to provide in-home care to Lorraine Cott was not enough to bring this case within the holding of Herrle, he said. Rather, such claims should be subject to the usual laws of negligence, including the comparative negligence, if any, of the plaintiff.
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