Primary Assumption of The Risk: In-Home Caregivers

Posted in Healthcare Professionals on May 9, 2013

Gregory v. Cott, (Second District, January 28, 2013) — Cal.Rptr.3d —-, 13 Cal. Daily Op. Serv. 1027, 2013 Daily Journal D.A.R. 1217

An employee of a home care agency who was working as an in-home caregiver for an 85-year-old woman suffering from Alzheimer’s, was seriously injured when the woman attempted to reach for a knife that she was holding. The caregiver then brought an action for damages against the woman and her husband, asserting theories of battery, negligence and premises liability. The defendants moved for summary judgment, arguing that the plaintiff had assumed the risk, in that the plaintiff had been trained in dealing with Alzheimer’s patients, was aware that they could become violent, and had been the woman’s caretaker for several years.

The trial court granted summary judgment and the court of appeal affirmed, holding that the trial court had properly determined that the causes of action as to both negligence and intentional torts were barred by the doctrine of primary assumption of risk, and that the plaintiff “could not have been under any illusions concerning the [patient’s] condition or the premises”:

“The Supreme Court has applied the primary assumption of risk doctrine applies to activities other than sports or recreation. . . . We believe that the primary assumption of risk doctrine can be applied to those whose occupation is caring for Alzheimer’s patients, some of which patients can pose physical risks of injury.
. . .
Based on the undisputed facts of this case, there is no meaningful distinction between undertaking to care for an Alzheimer’s patient in a convalescent hospital or other care facility. . . . A contracted in-home caregiver, as plaintiff, is in the same position as a facility caregiver in undertaking the risks in caring for an Alzheimer’s patient. Just as in Herrle, supra, 45 Cal.App.4th at page 1765, 53 Cal.Rptr.2d 713, Lorraine was placed in plaintiff’s care, inter alia, to protect her from injuring herself and others because of her violent proclivities. The nature of the activity undertaken by plaintiff here was the same as the activity undertaken by the plaintiff in Herrle, as was the risk inherent in that activity.
. . .
Plaintiff here is not such an “informal caregiver.” She was assigned to this home by a caregiver agency and had experience with Alzheimer’s patients. She had been trained to deal with Alzheimer’s patients and was aware of the physical dangers from such patients. She was an experienced, contracted caregiver. “When the patient has been confined or sought care precisely because he or she can no longer care for him/herself, it seems unjust to hold the patient liable when caregivers are injured.”
. . .
Caretakers generally may look to other sources of available compensation rather than to the victim of a debilitating disease or to a spouse who has undertaken to care for the Alzheimer’s patient at home and must endure the patient’s misfortune.”

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