Bolieu v. Sisters of Providence in Washington
| Citation | 953 P.2d 1233 |
| Decision Date | 13 February 1998 |
| Docket Number | No. S-7575,S-7575 |
| Parties | Walter BOLIEU and Orlin Oliver, Appellants, v. SISTERS OF PROVIDENCE IN WASHINGTON, and/or d/b/a Our Lady of Compassion Care Center, Appellee. |
| Court | Supreme Court of Alaska (US) |
Charles W. Coe, Anchorage, for Appellants.
John M. Conway and Anne E. Kane, Atkinson, Conway & Gagnon, Anchorage, for Appellee.
Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.
The issue presented is whether a residential health care facility owes to the spouses of the facility's nursing assistants any duty of care to control infections or warn of the danger of infection. The superior court held that it does not. Because we conclude that the relevant considerations warrant imposing a duty of care, we reverse.
Gwen Bolieu and Bodhmati Oliver were employed as nursing assistants at Our Lady of Compassion Care Center (Our Lady). 1 They are respectively married to Walter Bolieu and Orlin Oliver. Sisters of Providence in Washington operates Our Lady, a convalescent and long-term residential care facility. Among other things, nursing assistants take the blood pressure of Our Lady residents and help them bathe.
In 1990 several Our Lady employees reported skin problems. They complained of a skin rash with itchy bumps. The Director of Quality Management at Our Lady, Nurse Kathleen Lum, sent the employees, including Bodhmati, to a treatment center where Bodhmati was diagnosed with a staph infection. 2 She was off work for a week and treated with antibiotics. Gwen also contracted a skin rash in 1990.
Nurse Lum also directed the nursing staff to check the skin of Our Lady patients. Nurse Lum affied that at least three patients suffered from rashes, but that the cause was not determined. A microscopic examination ruled out scabies. 3
In 1991 many Our Lady employees again complained of various skin rashes and disorders. Nurse Lum sent them to a dermatologist or a treatment center for examination.
In June 1991 Bodhmati was diagnosed and treated for a staph infection. In July 1991 Gwen was diagnosed and treated for a staph infection.
Gwen and Bodhmati filed workers' compensation claims. Dr. Michael Beirne apparently concluded in the context of their workers' compensation claims that their infections were work-related. Dr. Beirne later explained in a deposition taken in the tort suits that
[T]hey would have the--the condition when they were at work, and then when they retreated them and kept them off work for a while, they--the condition would resolve. And then when they would go back on the job, the disease would recur.
And this happened a number of times, and we came to the conclusion that that was--that was the situation, that they were picking it up at work and that environment, or whatever was there, however it worked, was causing this.
Infectious disease specialists--including Drs. Burton Janis and Paul Roberts, who evaluated Gwen and Bodhmati in the workers' compensation proceedings--offered opinions contrary to Dr. Beirne's, concluding that the employees' skin conditions were not work-related. Their opinions seem to be founded on the widespread distribution of staph bacteria in the general community.
Dr. Beirne diagnosed both Walter Bolieu and Orlin Oliver with staphylococcus bacterial infections. He opined that they contracted their skin infections from their wives.
Walter and Orlin each filed a personal injury complaint against Our Lady in 1993; each alleged that he had been infected with staph during visits to the facility and/or through contact with his wife. Their complaints asserted that Our Lady owed them and their families "a duty of care to maintain their care center free of staph or other infections [sic] diseases." The cases were consolidated.
Our Lady moved for summary judgment, arguing in part that health care facilities have no duty to protect non-patients from infectious agents routinely encountered in the general community. 4 The superior court granted Our Lady's motion. Applying the factors set out in D.S.W. v. Fairbanks North Star Borough School District, 628 P.2d 554, 555 (Alaska 1981), it ruled that Our Lady owed Walter and Orlin no duty of care.
Walter and Orlin filed a motion for reconsideration, supported by extensive materials not previously filed. The superior court denied their motion, entered final judgment against them, and awarded attorney's fees and costs to Our Lady.
Walter and Orlin argue on appeal that Our Lady owes them a duty of care.
We review "a grant of summary judgment de novo and will adopt the rule of law that is most persuasive in light of precedent, reason, and policy." Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1134 (Alaska 1996) (citations omitted). We will uphold a grant of summary judgment if the record presents no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Newton v. Magill, 872 P.2d 1213, 1215 (Alaska 1994). Because the duty issue was presented to the superior court on Our Lady's motion for summary judgment, we take all permissible factual inferences in favor of Walter and Orlin.
"The existence and extent of a duty of care are questions of law for the court to determine." Beck v. State, Dep't of Transp. & Pub. Facilities, 837 P.2d 105, 109 (Alaska 1992) ().
Walter and Orlin claim that Our Lady owed them a duty to take "reasonable measures" to control infectious diseases at its facility. They also argue that Our Lady owed them a duty to inform or warn employees that their infections could be spread to family members, and that the employees should take measures to prevent such a spread. The superior court concluded that Our Lady owed the spouses no duty of care.
Before a defendant can be held liable for negligence, it must owe a duty of care to the plaintiff. See Division of Corrections v. Neakok, 721 P.2d 1121, 1125 (Alaska 1986). "Duty" is the "expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection." Id. (quoting William L. Prosser, The Law of Torts § 53, at 325-26 (4th ed.1971)). In the absence of any other source of a duty of care (imposed, for example, by statute, contract, or doctrine of law) we consider seven factors in deciding whether a duty of care exists:
"The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved."
D.S.W., 628 P.2d at 555 (quoting Peter W. v. San Francisco Unified Sch. Dist., 60 Cal.App.3d 814, 131 Cal.Rptr. 854, 859-60 (1976)). 5
We weigh these "D.S.W. factors" to determine whether a duty of care exists. See Estate of Day v. Willis, 897 P.2d 78, 81-82 (Alaska 1995) (). In analyzing the factors, we treat the legal relationship between individuals as the focus for the duty question. See W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 53, at 356 (5th ed. 1984) [hereinafter Keeton] ("It is better to reserve 'duty' for the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other, and to deal with particular conduct in terms of a legal standard of what is required to meet the obligation."). 6
We have stated that "[t]he most important single criterion for imposing a duty of care is foreseeability." Neakok, 721 P.2d at 1125 (citing Tarasoff v. Regents of the Univ. of Calif., 17 Cal.3d 425, 131 Cal.Rptr. 14, 22, 551 P.2d 334, 342 (1976)); see also Karen L. v. State, Dep't of Health & Soc. Svcs., 953 P.2d 871 (Alaska 1998); R.E. v. State, 878 P.2d 1341, 1346 (Alaska 1994).
Walter and Orlin argue that the harm to them was foreseeable because Our Lady lacked effective infection control, ventilation, and sanitation. They argue that spouses of Our Lady employees are an identifiable group of people foreseeably affected by the facility's environment. Our Lady agrees that it is foreseeable that patients, employees, and visitors will be exposed to infectious agents at health care facilities, but asserts that "it is equally foreseeable" they will be exposed to the same agents elsewhere, and that the exposure is an inherent risk of human contact.
It is undisputed that patients at Our Lady occasionally contract infectious diseases. If the facility fails to take reasonable measures to control the spread of infectious disease at the facility, it is foreseeable that some employees will contract diseases from patients. It is also foreseeable that employees who contract infectious diseases at work might transmit those diseases to their spouses.
In a comparable case, the spouse of a hospital security guard exposed to the AIDS virus sued the hospital on a claim of negligent infliction of emotional distress. See Vallery v. Southern Baptist Hosp., 630 So.2d 861, 862-63, 868, 869 (La.App.1993) (). Foreseeability is a component of Louisiana's test to determine whether a duty exists. Id. at 868. The court held that "[i]t is highly foreseeable...
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