California Supreme Court Extends Assumption of Risk Doctrine to Cases Where an In-home Caregiver is Injured by their Patient

Headshot of Robert F BennettBy Robert Bennett

On August 4, 2014, the California Supreme Court released a decision in Carolyn Gregory v. Lorraine Cott. At issue for the court was whether an in-home caregiver was precluded from suing her Alzheimer’s patient when she was injured in the course of caring for her. In 2005 Bernard Cott contracted with a home health care agency to care for his then 85 year old wife, Lorraine Cott, who was suffering from Alzheimer’s disease. The agency assigned Gregory to work in the Cott home. Gregory was trained to care for Alzheimer’s patients and was advised by Bernard that his wife was combative often kicking, biting, scratching and flailing. In 2008, Gregory was washing dishes when Lorraine bumped into her. Gregory, who was holding a knife at the time, attempted to restrain Lorraine when she dropped the knife which struck her wrist and caused injuries. Gregory filed a workers’ compensation claim and then a separate civil claim against the Gregorys.

After discussing the primary assumption of risk doctrine generally the court narrowed its focus using the 1996 case of Herrle v. Estate of Marshall, 45 Cal.App.4th 1761, (Herrle). In that case the Fourth District Court of Appeals was to decide whether a caregiver in a convalescent hospital could maintain a separate civil action against an Alzheimer’s patient who injured the worker when she attempted to transfer the patient from a bed to a chair. Crucial to the Fourth District’s opinion was the connection of risk the plaintiff in Herrle was assuming when undertaking her job; a reference to the firefighter’s rule. Ultimately, the Herrle court found the assumption of risk doctrine applied and the injured worker was unable to maintain a separate action against the patient.

On appeal in the Gregory matter, Gregory did not disagree with the Herrle decision, but attempted to distinguish that case from hers arguing it should not apply to caregivers employed in private home. More specifically, she alleged that in-home caregivers cannot be said to be “in the best position to protect against the risks to the provider rooted in the very reason for the treatment,” such as institutional caregivers. The California Supreme Court disagreed finding that such an allegation was completely speculative. The court went even further using policy considerations to extend the Herrle decision to the in-home caregiver setting:

“…the idea that tort liability should be imposed to encourage placing the mentally disabled in institutions is inconsistent with the modern policy preference for keeping these patients in their homes whenever possible.”

Finally, the court also noted that given the caregiver, in most instances, is compensated via the workers’ compensation system, denying separate civil liability based on the assumption of risk doctrine is that much more equitable.

This decision would have been helpful for Jim Miller and Rob Bennett, who successfully defensed a similar action in April, 2012 – Doyon v. Lewis. In that case Rob Bennett sought a dismissal of his client, a patient of an in-home caregiver, via a motion for summary judgment. While that motion was denied due in part the trial court’s inability to extend Herrle, ultimately, Jim and Rob were successful at trial.


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