In Gregory v. Cott (No. S209125, filed 8/4/2014) the California Supreme Court held that a professional in-home caregiver for a patient suffering from Alzheimer’s disease assumed the risk of harm caused by the patient.
Defendant Bernard Cott (“Bernard”) contracted with a home health care agency to assist his 85-year old wife, co-defendant Lorraine Cott (“Lorraine”), who had long suffered from Alzheimer’s disease. The agency assigned plaintiff Carolyn Gregory to work in the Cotts’ home. Plaintiff had been trained to care for Alzheimer’s patients and understood they could be violent. Bernard also specifically informed Plaintiff that Lorraine was combative and would bite, kick, scratch and flail.
In September 2008, Plaintiff was washing dishes at the defendants’ residence. Plaintiff was in the process of washing a large kitchen knife when Lorraine approached Plaintiff from behind, bumped into her, and reached toward the sink. When Plaintiff attempted to restrain Lorraine, the knife dropped and struck Plaintiff’s wrist resulting in lacerations, loss of feeling in several fingers, and recurring pain.
Plaintiff brought suit against the Cotts for negligence and premises liability, and for battery against Lorraine. Defendants moved for summary judgment on primary assumption of risk grounds, arguing that Plaintiff had assumed the risk of injury inherent in her occupation. The trial court granted the motion, and a divided court of appeals affirmed.
The California Supreme Court began its review noting that the general duty to avoid injuring others extends to persons “of unsound mind” as prescribed by California Civil Code Sections 41 and 1714. The Court acknowledged, however, that the doctrine of primary assumption of risk has oft been applied in situations arising from inherent occupational hazards.
Plaintiff argued primary assumption of the risk should not apply to caregivers employed in private homes because the home environment lacks the specialized equipment and trained health care professionals found in institutions. Rather, Plaintiff contended the secondary assumption of risk doctrine should be applied. The Supreme Court rejected this argument noting “[s]econdary assumption of risk…is predicated on the existence of a duty.” Here, the particular risk of harm that caused injury was among the very risks the caregiver was hired to prevent. Further, the Supreme Court noted the strong public policy against confining the disabled in institutions which favored insulating Defendants from liability in this case.
The Supreme Court held Plaintiff assumed the risk of injuries caused by Lorraine due to the inherent risks associated with Plaintiff’s occupation as an in-home care provider for patients suffering from Alzheimer’s disease. The Court likened the situation to risks assumed by firefighters, police officers, veterinarians, and nurses at convalescent hospitals. The Court, however, limited its holding by noting “[w]e do not hold that anyone who helps with such patients assumes the risk of injury. The rule we adopt is limited to professional home health care workers who are trained and employed by an agency.”
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