Gregory v. Cott

• Decision Date: 04 August 2014
• Docket Number: No. S209125.,S209125.
• Citation: 176 Cal.Rptr.3d 1,59 Cal.4th 996,331 P.3d 179
• Parties: Carolyn GREGORY, Plaintiff and Appellant, v. Lorraine COTT et al., Defendants and Respondents.
• Court: California Supreme Court

59 Cal.4th 996

331 P.3d 179

176 Cal.Rptr.3d 1

Carolyn GREGORY, Plaintiff and Appellant,

v.Lorraine COTT et al., Defendants and Respondents.

No. S209125.

Supreme Court of California

Aug. 4, 2014.

Alexander J. Petale, Hollywood, for Plaintiff and Appellant.

Laurel R. Webb and Matthew Stark Blumin for SEIU United Long Term Care Workers and United Domestic Workers, AFSCME Local 3930, AFL–CIO as Amici Curiae on behalf of Plaintiff and Appellant.

Reed Smith, Los Angeles, Margaret M. Grignon, Tillman J. Breckenridge ; Inglis Ledbetter Gower & Warriner, Los Angeles, Richard S. Gower and Gregory J. Bramlage for Defendants and Respondents.

McGuire Coats and Wendy McGuire Coats for Vaughn E. James as Amicus Curiae on behalf of Defendants and Respondents.

CORRIGAN, J.

The question in this case is whether patients suffering from Alzheimer's disease

are liable for injuries they inflict on health care workers hired to care for them at home. Because agitation and physical aggression are common late-stage symptoms of the disease, injuries to caregivers are not unusual. California and other jurisdictions have established the rule that Alzheimer's patients are not liable for injuries to caregivers in institutional settings. We conclude that the same rule applies to in-home caregivers who, like their institutional counterparts, are employed specifically to assist these disabled persons. It is a settled principle that those hired to manage a hazardous condition may not sue their clients for injuries caused by the very risks they were retained to confront.

This conclusion is consistent with the strong public policy against confining the disabled in institutions. If liability were imposed for caregiver injuries in private homes, but not in hospitals or nursing homes, the incentive for families to institutionalize Alzheimer's sufferers would increase. Our holding does not preclude liability in situations where caregivers are not warned of a known risk, where defendants otherwise increase the level of risk beyond that inherent in providing care, or where the cause of injury is unrelated to the symptoms of the disease.

We encourage the Legislature to focus its attention on the problems associated with Alzheimer's caregiving. The number of Californians afflicted with this disease can only be expected to grow in coming years. Training requirements and enhanced insurance benefits for caregivers exposed to the risk of injury are among the subjects worthy of legislative investigation.

BACKGROUND

The relevant facts are undisputed. In 2005, defendant Bernard Cott contracted with a home health care agency to assist with his 85–year–old wife and codefendant Lorraine, who had long suffered from Alzheimer's disease

. The agency assigned plaintiff Carolyn Gregory to work in the Cotts' home.

Gregory was trained to care for Alzheimer's patients, and had done so in other assignments. She knew they could be violent. Bernard told her Lorraine was combative and would bite, kick, scratch, and flail. Gregory's duties included supervising, bathing, dressing

, and transporting Lorraine, as well as some housekeeping. In September 2008, Gregory was washing dishes while Lorraine sat at the kitchen table. Bernard was not at home. As Gregory was washing a large knife, Lorraine approached her from behind, bumped into her, and reached toward the sink. When Gregory attempted to restrain Lorraine, she dropped the knife, which struck her wrist. As a result, Gregory lost feeling in several fingers and experienced recurring pain.

Gregory has received workers' compensation. She also sued the Cotts for negligence and premises liability, with a claim against Lorraine for battery.

The trial court granted a defense motion for summary judgment. A divided Court of Appeal affirmed, holding that Gregory's claims were barred by the primary assumption of risk doctrine. We affirm the judgment.

DISCUSSION

Since its reformulation in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight ), California's assumption of risk doctrine has taken two quite different forms. Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm. Secondary assumption of risk applies when the defendant does owe a duty, but the plaintiff has knowingly encountered a risk of injury caused by the defendant's breach. Liability in such cases is adjudicated under the rules of comparative negligence. ( Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067–1068, 68 Cal.Rptr.2d 859, 946 P.2d 817 ; Knight, at pp. 314–315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

The general duty to avoid injuring others extends to persons "of unsound mind." ( Civ.Code, §§ 41, 1714.)¹ Accordingly, Lorraine Cott's Alzheimer's disease

does not, per se, diminish the duty she owed to Gregory. To shield themselves from liability, the Cotts rely on the primary assumption of risk doctrine, which operates as an exception to the general duty of care.

Primary assumption of risk cases often involve recreational activity, but the doctrine also governs claims arising from inherent occupational hazards. ( Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1155, fn. 1, 150 Cal.Rptr.3d 551, 290 P.3d 1158 ; Knight, supra, 3 Cal.4th at pp. 309–310, fn. 5, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The bar against recovery in that context first developed as the "firefighter's rule," which precludes firefighters and police officers from suing members of the public for the conduct that makes their employment necessary. ( Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538–540, 34 Cal.Rptr.2d 630, 882 P.2d 347 (Neighbarger ); see 6 Witkin, Summary of Cal. Law (10th ed.2005) Torts, § 845 et seq., p. 65 et seq. ) After Knight, we have viewed the firefighter's rule "not ... as a separate concept," but as a variant of primary assumption of risk, "an illustration of when it is appropriate to find that the defendant owes no duty of care." ( Neighbarger, at p. 538, 34 Cal.Rptr.2d 630, 882 P.2d 347.) Whether a duty of care is owed in a particular context depends on considerations of public policy, viewed in light of the nature of the activity and the relationship of the parties to the activity. ( Neighbarger, at p. 541, 34 Cal.Rptr.2d 630, 882 P.2d 347 ; Knight, at pp. 314–315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

We have noted that the duty to avoid injuring others "normally extends to those engaged in hazardous work." ( Neighbarger, supra, 8 Cal.4th at p. 536, 34 Cal.Rptr.2d 630, 882 P.2d 347.) "We have never held that the doctrine of assumption of risk relieves all persons of a duty of care to workers engaged in a hazardous occupation." ( Id. at p. 538, 34 Cal.Rptr.2d 630, 882 P.2d 347.) However, the doctrine does apply in favor of those who hire workers to handle a dangerous situation, in both the public and the private sectors. Such a worker, "as a matter of fairness, should not be heard to complain of the negligence that is the cause of his or her employment. [Citations.] In effect, we have said it is unfair to charge the defendant with a duty of care to prevent injury to the plaintiff arising from the very condition or hazard the defendant has contracted with the plaintiff to remedy or confront." ( Id. at p. 542, 34 Cal.Rptr.2d 630, 882 P.2d 347.) This rule encourages the remediation of dangerous conditions, an important public policy. Those who hire workers to manage a hazardous situation are sheltered from liability for injuries that result from the risks that necessitated the employment.

In Neighbarger, the plaintiffs were safety supervisors at an oil company. The company had hired an outside maintenance contractor, whose employees negligently injured the plaintiffs. We held that the assumption of risk doctrine did not apply, because there was no contractual relationship between the plaintiffs and the maintenance contractor. "When [a] firefighter is publicly employed, the public ... stands in the shoes of the person who hires a contractor to cure a dangerous condition. In effect, the public has purchased exoneration from the duty of care and should not have to pay twice, through taxation and through individual liability, for that service." ( Neighbarger, supra, 8 Cal.4th at pp. 542–543, 34 Cal.Rptr.2d 630, 882 P.2d 347.) A privately employed safety employee, however, has no such relationship with a third party contractor. The contractor has not "paid in any way to be relieved of the duty of care.... Having no relationship with the employee, and not having contracted for his or her services, it would not be unfair to charge the [contractor] with the usual duty of care towards the private safety employee." ( Id. at p. 543, 34 Cal.Rptr.2d 630, 882 P.2d 347.)

The defendant in Neighbarger relied on "veterinarian's rule" cases, in which veterinarians or their assistants were held to have assumed the risk of being bitten by dogs during treatment. ( Neighbarger, supra, 8 Cal.4th at pp. 544–545, 34 Cal.Rptr.2d 630, 882 P.2d 347, citing Cohen v. McIntyre (1993) 16 Cal.App.4th 650, 20 Cal.Rptr.2d 143, Willenberg v. Superior Court (1986) 185 Cal.App.3d 185, 229 Cal.Rptr. 625, and Nelson v. Hall (1985) 165 Cal.App.3d 709, 211 Cal.Rptr. 668.) We noted, however, that the veterinarian's rule does not support applying assumption of risk "when the defendant is a third party who has not secured the services of the plaintiff or otherwise entered into any relationship with the plaintiff." ( Neighbarger, at p. 545, 34 Cal.Rptr.2d 630, 882 P.2d 347.)

We took up the veterinarian's rule in Priebe v. Nelson (2006) 39 Cal.4th 1112, 47 Cal.Rptr.3d 553, 140 P.3d 848 (Priebe ). There, a worker in a veterinary kennel sued the owner of a dog that bit her. We noted that the veterinarian's rule was recognized in Neighbarger and Knight as "yet another application of the doctrine of primary assumption of risk." ( Priebe, at p. 1122, 47 Cal.Rptr.3d 553, 140 P.3d 848, citing Neighbarger,...