Klein v. BIA Hotel Corp.

• Decision Date: 11 January 1996
• Docket Number: No. B081742,B081742
• Citation: 41 Cal.App.4th 1133,49 Cal.Rptr.2d 60
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 329, 96 Daily Journal D.A.R. 486 Michele KLEIN, et al., Plaintiffs and Appellants, v. BIA HOTEL CORPORATION, et al., Defendants and Respondents.

Page 60

49 Cal.Rptr.2d 60

41 Cal.App.4th 1133, 96 Cal. Daily Op. Serv. 329,

96 Daily Journal D.A.R. 486

Michele KLEIN, et al., Plaintiffs and Appellants, v. BIA HOTEL CORPORATION, et al., Defendants and Respondents.

No. B081742.

Court of Appeal, Second District, Division 3, California.

Jan. 11, 1996.

Review Denied March 21, 1996.

[41 Cal.App.4th 1134] Mark W. Plank, San Rafael, for Plaintiffs and Appellants.

Schrieber & Horn and Mark Schreiber, Encino, for Defendants and Respondents.

CROSKEY, Associate Justice.

Plaintiffs Michele Klein and Leland Baum ("plaintiffs") appeal from a summary judgment entered in favor of defendant BIA Hotel Corporation, a California corporation doing business as the Hancock Park Retirement Hotel ("defendant"). Plaintiffs sued defendant for the wrongful death of their mother, Rose Goldbaum ("decedent"). Decedent had been living at defendant's residential hotel facility for the elderly. She died during her stay there.

Plaintiffs' complaint alleges eight causes of action for negligence in the running of defendant's residential care facility, all of them based on defendant's alleged failure to comply with the California Code of Regulations.

                The complaint alleges defendant's negligence was the proximate cause of decedent's death.  The summary judgment was entered after the court determined defendant has a complete defense to the eight causes of action.  That defense is based on the coroner's report, which states the decedent took her own life by jumping off of the roof of defendant's five-story facility. 1  Defendant's position is that decedent had a right to take her own life and defendant had no duty to prevent her from doing so.  We do not find these contentions warrant granting defendant a summary judgment since defendant had regulations which it was obliged to follow on decedent's behalf, and since defendant had a special relationship with decedent.  We therefore reverse the summary judgment and remand the case for further proceedings
                

BACKGROUND OF THE CASE

Decedent was a resident at defendant's residential care facility for the elderly. She lived there with her sister. On the roof of the facility is a patio area which is furnished with tables and chairs and which is used by the residents of the facility. The roof is accessible by elevator and by stairs. The patio area of the roof is fenced in. However, there is a gate through which one can leave the fenced-in patio area and go to the edge of the roof. On March 10, 1992, when she was 85 years old, decedent's lifeless body was discovered lying on the ground near the facility. On the roof of the facility, directly above where decedent's body was located, a police officer and an investigator from the coroner's office found a chair sitting outside the fenced patio area. (It was not the only chair on the unfenced portion of the roof.) There is evidence that on March 9, 1992, decedent told her sister and her daughter (one of the plaintiffs in this case) that she wanted to kill herself but the sister and daughter did not think decedent was capable of doing it. There is also evidence that decedent did not tell her daughter that she desired to take her own life. There was evidence decedent had attempted suicide two years earlier by overdosing on prescription medicine. Decedent had previously had cancer and although her doctor believed the cancer was gone, two weeks before she died she was diagnosed with cancer again. There was evidence the new cancer was treatable and was not life threatening. The coroner concluded decedent had taken her own life.

Defendant's facility is licensed by the State of California, through its Department of Social Services, as a residential care facility for the elderly. As such, it is governed by title 22, division 6, chapter 8 of the California Code of Regulations ("the regulations"). Like a hotel, it provides rooms, maid service, linen service and dining facilities. However, because of its duties under the regulations, defendant's residential care facility provides much more, and much more is required of it. Defendant must have staff members who have the skill and knowledge required for necessary resident care, assisting residents with prescribed medications which are self-administered, and recognizing early signs of illness and the need for professional help. (Cal.Code Regs., tit. 22, § 87565.) ² Prior to accepting a person as a resident, the residential care facility must conduct an interview with that person and with "his responsible person," and must also obtain, and keep on file, "documentation of a medical assessment, signed by a physician, made within the last year." (§§ 87567, 87569.) The residential care facility must also keep records (name, address, phone number), regarding the resident's responsible person, physician, dentist, religious preference and clergyman (if any), as well as a continuing record of "any illness, injury, or medical or dental care, when it impacts the resident's ability to function or the services he needs," and a record of his current centrally stored medications. (§ 87570.) The residential care facility must provide "assistance and care for the resident in those activities of daily living which the resident is unable to do for himself/herself." (§ 87578.) The residential care facility must also provide planned activities which, among In their complaint, plaintiffs allege defendant violated provisions in the regulations by "failing or refusing to sufficiently, adequately or frequently obtain or complete admission appraisals and reappraisals," by "failing or refusing to notify resident's physician or family of changes in resident's mental state," by "failing or refusing to determine the amount of supervision necessary to determine if decedent resident was withdrawn and/or that the facility was capable of providing a safe residence," and by "failing or refusing to sufficiently, adequately or frequently observe decedent resident for changes in her mental, emotional or social functioning." Plaintiffs allege these violations of the regulations were the proximate cause of plaintiffs' damages. They further allege defendant is presumed to be negligent under Evidence Code section 669. ³

other things, address its residents' socialization, foster independent functioning, "develop and maintain strength, coordination and range of motion," and cultivate personal interests and pursuits. (§ 87579.) Among the factors to be considered in the pre-admission evaluation of the resident is his or her mental condition. "The facility shall determine the amount of supervision necessary by assessing the applicant's mental status to determine if the individual tends to wander, is confused or forgetful, is capable of managing his/her own cash resources, and if he/she actively participates in social activities or is withdrawn." (§ 87585.) "The pre-admission appraisal shall be updated, in writing as frequently as necessary to note significant changes and to keep the appraisal accurate. The [41 Cal.App.4th 1137] reappraisals shall document changes in the resident's physical, mental and/or social condition.... The licensee shall immediately bring any such changes to the attention of the resident's physician and his family or responsible person." (§ 87587.) "The licensee shall regularly observe each resident for changes in physical, mental, emotional and social functioning." (§ 87591.)

Additionally, plaintiffs allege violations of the regulations which govern the physical setting of a residential care facility for the elderly. Specifically, they allege causes of action for violation of former section 87712 ⁴ (failure to secure the doors to the roof area of the facility with a buzzer or bell or other auditory device to alert staff when the door is opened), and sections 87572 and 87577 (failure to provide safe and healthful accommodations by failing to adequately maintain the exterior doors or provide supervision of the use of the roof area or maintain adequate precautionary measures so as to prevent a resident from accidentally or intentionally falling from the roof). Plaintiffs allege these violations of the regulations were the proximate cause of their damages and further allege that under Evidence Code section 669, defendant is presumed to be negligent.

Defendant's answer denies the charging allegations and alleges several affirmative defenses, one of which is assumption of the risk. The answer alleges decedent "knew of the hazards and risks of her actions and had full knowledge of the conditions existing and appreciated the risk of her actions." In its motion for summary judgment, defendant contended suicide is not a wrong but rather is an exercise of a constitutionally protected right under one's right to privacy and, therefore, the allegations in the complaint of defendant's negligence are irrelevant. Citing Nally v. Grace Community Church (1988) 47 Cal.3d 278, 253 Cal.Rptr. 97, 763 P.2d 948, defendant also argued it had no duty to exercise reasonable care to prevent decedent

from taking her own life because the law only imposes such a duty on those with special relationships with a suicidal person--hospitals and other facilities which accept the responsibility to care for suicidal patients, and the patient's treating psychiatrist--and does not impose such a duty on persons who merely foresee that a person might take their life or have knowledge of such danger. The trial court ruled this constituted a complete defense to plaintiffs' causes of action and granted summary judgment.

CONTENTIONS ON APPEAL

1. In this appeal, plaintiffs contend there is no constitutional right to commit suicide. They argue that defendant's assertion of such a right is the result of its misreading of the decision in Bouvia v. Superior Court (1986) 179 Cal.App.3d 1127, 225 Cal.Rptr. 297, wherein the court held that a patient in a county hospital had the right to refuse forced feeding as medical treatment,...