Farr v. ALTERNATE LIVING SERVICES, INC.

• Decision Date: 28 March 2002
• Docket Number: No. 01-0971.,01-0971.
• Citation: 2002 WI App 88,643 N.W.2d 841,253 Wis.2d 790
• Parties: Clara FARR, Plaintiff-Appellant, MEDICARE PART A, Medicare Part B, and Connecticut General Life Insurance Company, Subrogated-Plaintiffs, v. ALTERNATIVE LIVING SERVICES, INC. n/k/a Alterra Healthcare and Atlantic Mutual Insurance Company, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

253 Wis.2d 790

2002 WI App 88

643 N.W.2d 841

Clara FARR, Plaintiff-Appellant, MEDICARE PART A, Medicare Part B, and Connecticut General Life Insurance Company, Subrogated-Plaintiffs, v. ALTERNATIVE LIVING SERVICES, INC. n/k/a Alterra Healthcare and Atlantic Mutual Insurance Company, Defendants-Respondents.¹

No. 01-0971.

Court of Appeals of Wisconsin.

Submitted on briefs November 8, 2001.

Decided March 28, 2002.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Matthew H. Boller of Murphy, Vaughan, Boller & Pressentin, L.L.C., Monona.

On behalf of the defendants-respondents, the cause was submitted on the brief of Steven T. Caya of Fellows, Piper & Schmidt, Milwaukee.

Before Vergeront, P.J., Deininger and Lundsten, JJ.

¶ 1. DEININGER, J.

Clara Farr appeals an order which dismissed her second amended complaint against Alternative Living Services, Inc., and denied her motion to amend the complaint or "revert back" to an earlier one. Farr contends that we should reinstate her claims because: (1) her second amended complaint states a negligence cause of action; (2) the court erroneously exercised its discretion in failing to allow her to amend her complaint; (3) justice has miscarried and we should therefore reverse under WIS. STAT. § 752.35 (1999-2000);² and (4) WIS. STAT. ch. 50 provides a private cause of action for violations of Farr's rights as a resident of a community-based residential facility.

¶ 2. We conclude that Farr's second amended complaint states a cause of action for negligence, and thus we do not reach Farr's second and third claims. With regard to the fourth, we conclude that the legislature did not intend to provide residents of community-based residential facilities a private cause of action for statutory or code violations. We therefore reverse and remand for further proceedings on Farr's negligence claim.

BACKGROUND

¶ 3. Clara Farr, an 85-year-old woman suffering from dementia and other health problems, resided at Woven Hearts of Middleton, a community-based residential facility (CBRF).³ Woven Hearts is a subsidiary of Alternative Living Services, Inc., a provider of care for individuals suffering from Alzheimer's disease. Farr eloped from the Woven Hearts facility, wearing only a thin nightgown, on a winter morning when the temperature was approximately twelve degrees. A passerby found her between 4:00 and 5:00 in the morning, walking away from the facility with her walker, barefoot on a frost-covered sidewalk. She was returned to the facility and subsequently admitted to a hospital, where she was treated for frostbite injuries to both feet.

¶ 4. Prior to Farr's elopement, the Department of Health and Family Services, Bureau of Quality Assurance, had investigated Woven Hearts in response to complaints of inadequate treatment. The investigation revealed that the facility had not complied with certain provisions of WIS. ADMIN. CODE § HFS 83, and the bureau ordered the facility not to admit any additional residents until the department received plans of correction. Following Farr's elopement, the department again conducted an investigation that revealed the facility was still in noncompliance with the law. With regard to Farr's elopement, the department reported in its "Statement of Deficiencies" that the facility failed to report Farr's elopement as required; that the facility failed to meet Farr's treatment needs by waiting until two days after her elopement before seeking medical intervention for her injuries; that staff knew of her potential risk to elope from the facility; and that an exit door alarm was not functioning properly at the time of Farr's elopement thus failing to alert staff.

¶ 5. Farr commenced this action against Alternative Living asserting a claim of negligence and seeking compensatory and punitive damages. In her original complaint, Farr alleged that the facility was "negligent in regard to supervision, control and prevention of harm to a resident and administration of prompt and adequate treatment to [her]." Farr sought punitive damages based on the facility's alleged "intentional disregard of [her] rights." She first amended her complaint to correctly name the parties, and later moved to amend her complaint a second time. The court granted Farr leave to file a second amended complaint.

¶ 6. Unlike the first complaint, which plainly pled a negligence cause of action, the second amended complaint does not contain the word "negligence," but frames the cause of action largely in terms of alleged violations of Farr's rights under WIS. STAT. ch. 50 and WIS. ADMIN. CODE § HFS 83. Alternative Living moved for summary judgment, seeking dismissal of Farr's second amended complaint on the basis that it alleged only violations of Farr's statutory and administrative rights, for which a private cause of action does not lie. In response, Farr moved to again amend her complaint "in the interest of justice, to conform to the record evidence." Alternatively, she requested that she be allowed "to revert back" to her previous complaint. She asserted that her second amended complaint incorporated all previous pleadings and that "the basis of the Complaint, as amended, lies in negligence." The court disagreed, denying Farr's motion and granting Alternative Living's motion for summary judgment on the grounds that the second amended complaint "does not allege negligence," and that the cause of action Farr pled was not permitted under Wisconsin law. Farr appeals.

ANALYSIS

[1, 2]

¶ 7. We review the granting or denial of summary judgment de novo, using the same methodology as the trial court. WIS. STAT. § 802.08; State v. Dunn, 213 Wis. 2d 363, 368, 570 N.W.2d 614 (Ct. App. 1997). That methodology is well established. We first examine the complaint to determine whether it states a claim. Id. In this case, our review need go no further because the sole basis of Alternative Living's motion for summary judgment is the alleged failure of Farr's second amended complaint to state a cognizable claim.

[3-5]

¶ 8. We thus begin by evaluating the legal sufficiency of the complaint, which presents a question of law for our de novo review. Williams v. Security Sav. & Loan Ass'n, 120 Wis. 2d 480, 482, 355 N.W.2d 370 (Ct. App. 1984). In determining whether a plaintiff has sufficiently stated a claim for relief, the facts pleaded by the plaintiff and all reasonable inferences arising from the factual allegations made by the plaintiff are accepted as true. Prah v. Maretti, 108 Wis. 2d 223, 229, 321 N.W.2d 182 (1982). A court must liberally construe the allegations, and a complaint "should be dismissed as legally insufficient only if `it is quite clear that under no circumstances can the plaintiff recover.'" Id.

[6]

¶ 9. Farr contends that her second amended complaint states a cause of action for negligence because it alleges all of the elements necessary for a negligence claim. Alternative Living disagrees, contending that "[n]owhere in the second amended complaint does [Farr] allege any common law negligence claim . . . . [Farr]'s second amended complaint relies solely upon statutory claims predicated upon a violation of WIS. STAT. § 50.10 and/or Chapter 83 of the Wisconsin Administrative Code." Alternative Living argues further that, because Farr's second amended complaint does not incorporate by reference any part of the original complaint, the earlier complaint is "extinguished" by the later one. See Holman v. Family Health Plan, 227 Wis. 2d 478, 487, 596 N.W.2d 358 (1999)

("An amended complaint supplants the original complaint when the amended complaint makes no reference to the original complaint and incorporates by reference no part of the original complaint.").

[7]

¶ 10. We conclude that Farr's second amended complaint, liberally construed, states a claim for negligence. To maintain a cause of action for negligence, four elements must exist: "(1) A duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury." Rockweit v. Senecal, 197 Wis. 2d 409, 418, 541 N.W.2d 742 (1995) (citations omitted). Farr's second amended complaint alleges the following things:

8 . . . Farr . . . was accepted and admitted by . . . Alternative Living . . . as a resident pursuant to a written contract. . . . [Alternative Living] promised to provide . . . Farr with such care as her condition reasonably required. At that time . . . Farr was suffering from a primary diagnosis of dementia secondary to cerebral vascular disease, all of which were well-known to [Alternative Living].

9. As a result of accepting . . . Farr as a community based residential facility resident, Woven Hearts was under a statutory duty to provide . . . Farr with certain rights and liberties pursuant to Chapter 50, WIS. Statutes, and Wisconsin Administrative Code, Chapter HFS 83. . . .

10. . . . Farr's statutory rights . . . were violated. The actions of Woven Hearts in violation of . . . Farr's rights included, but are not limited to the following:

a. Failing to properly monitor Clara Farr and allowing her to elope from the facility;

b. Failing to properly and/or timely contact Clara Farr's responsible party and physician to report significant changes in Clara Farr's physical condition;

c. Failing to properly chart and/or otherwise document Clara Farr's injuries;

d. Failing to have adequate staffing to provide Ms. Farr with an appropriate level of care and monitoring;

e. Failing to notify Ms. Farr, her family and Power of Attorney of the inadequate, untrained staffing deficiencies.

f. Failing to perform proper hygiene procedures, including but not limited to, failing to timely change Clara Farr's diapers, failing to bathe Clara Farr and allowing her to lie for extended periods of time in soiled diapers and/or excrement;

g. Failing to dispense and properly order pain

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