In a recent California case, a court ruled that home health workers hired to care for Alzheimer’s patients may not sue them or their families for injuries caused by those patients. But the ruling also raises new questions about where liability lies for in-home caregivers.
The following guest column for Home Health Care news is written by California-based attorney Jean M. Doherty.
In Gregory v. Cott, 59 Cal. 4th 996 (2014) (Gregory), the California Supreme Court significantly expanded the doctrine of primary assumption of risk by holding it applies to in-home professional health care employees who are hired to manage patients with Alzheimer’s disease. The impact of the decision remains to be seen, but it raises important questions regarding the scope and limits of the primary assumption of risk doctrine, and marks a sea change in the landscape of potential negligence liability for families of Alzheimer’s patients who elect to hire in-home caregivers.
Primary assumption of risk is a defense to a claim of negligence that operates as a “complete bar” to plaintiff’s recovery when “the defendant owes no duty to guard against a particular risk of harm” that is inherent in the activity itself. (Gregory, 59 Cal. 4th at 182; Knight v. Jewett, 3 Cal. 4th 296, 315-16 (1992)). The modern doctrine, as articulated in Knight, has traditionally been applied in the context of sporting events, including touch football (Knight); golf (Am. Golf Corp. v. Superior Court, 79 Cal. App. 4th 30 (2000)); and wrestling (Lilley v. Elk Grove Unified Sch. Dist., 68 Cal. App. 4th 939 (1998)). The doctrine also applies to “recreational” activities, such as bumper car riding. Nalwa v. Cedar Fair, L.P., 55 Cal. 4th 1148 (2012).
In Gregory, the Court in a 5-2 decision broke new ground by holding the doctrine barred the negligence claim of an in-home caregiver employee against the family that, through his agency, was hired to care for a family member who suffered from Alzheimer’s disease.
Noting that the assumption of risk doctrine encompasses claims arising from “inherent occupational hazards,” the Court concluded “primary assumption of risk in its occupational aspect is readily applicable to the relationship between hired caregivers and Alzheimer’s patients” because “the risk of violent injury is inherent in the occupation of caring for Alzheimer’s patients.”
The Court’s reasoning was informed in part by the “firefighter’s rule” (which precludes firefighters and police officers from suing for the conduct that makes their employment necessary), and by a case in which a nurse’s aide at a convalescent hospital was deemed to have assumed the risks of being injured by an Alzheimer’s patient while moving the patient to bed. [Gregory, 59 Cal. 4th at 183-85 (citing Herrle v. Estate of Marshall, 45 Cal. App. 4th 1761, 1770-72 (1996))]
Gregory raises numerous questions regarding the future of the primary assumption of risk doctrine. For example, a key inquiry in determining whether the doctrine applies is whether the risk of harm that causes an injury is inherent to the activity in which the injured party was engaged. But because most primary assumption of risk cases deal with sports and recreational activities, there is little guidance as to what risks, precisely, are inherent in managing the symptoms of Alzheimer’s patients— or when a defendant has increased those risks “beyond that inherent in providing care.” Gregory, 59 Cal. 4th at 181. Additionally, liability could still exist when caregivers are not warned of a known risk or where an injury is caused by something unrelated to the disease. Id. Left unanswered are the questions of what risks should be considered “known” and thus must be disclosed, and how to determine whether an “injury is caused by something unrelated to the client’s disease.”
Time will tell how California courts will interpret and apply Gregory; whether the state Supreme Court will revisit the issue and provide additional guidance; and whether the doctrine’s expansion will have an impact on the type of care families select for their members who are suffering from Alzheimer’s disease.
Jean M. Doherty is an attorney at Horvitz & Levy, where practices as an appellate and trial counsel in matters involving class actions, contracts, business torts, intellectual property, employment and insurance coverage. She can be reached via email at [email protected].