In Gregory v. Cott (2013) 2013 WL 313960, a husband contracted with a home care agency for in-home services for his 85-year-old wife, who had suffered from Alzheimer’s disease for several years and had become increasingly combative over time. The agency assigned plaintiff to work with the couple in 2005. In 2008, while plaintiff was washing dishes, the wife pushed plaintiff while simultaneously reaching for a knife in plaintiff’s hand. This action resulted in significant injuries to plaintiff’s wrist. Plaintiff sued both the husband and wife for negligence and premises liability, and also sued the wife for battery. The husband and wife were awarded summary judgment, and plaintiff appealed.
As mentioned in our January 30, 2013 Legal Update, the California Supreme Court ruled last December in the case of Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154, that the assumption of risk doctrine was “not limited to activities classified as sports, but applies as well to other recreational activities ‘involving an inherent risk of injury to voluntary participants … where the risk cannot be eliminated without altering the fundamental nature of the activity.”
In this case, however, the Court of Appeal took the doctrine one step farther. While the Supreme Court in Nalwa stated that the assumption of risk doctrine does not apply to “any activity with an inherent risk” such as “travel on the streets and highways and in many workplaces,” the Court of Appeal decided here that the Nalwa decision does not rule out the application of the doctrine to “non-sports and recreational activities” – including the care of Alzheimer’s patients who might injure their caregivers. This is similar to the so-called “veterinarian’s rule, ” which traditionally bars recovery by a veterinarian for injuries caused by the animal he or she is treating.
The Court found that the inherent risk of hazardous conduct by such a patient “render[s] the possibility of injury obvious and negate[s] the duty of care usually owed by the defendant for those particular risks of harm.” Because the danger of violence to a caregiver is “rooted in the very occasion of [her] engagement,” a defendant is impliedly relieved of any duty of care by the plaintiff’s acceptance of employment involving a known risk or danger. Caretakers “must endure the patient’s misfortune” and not seek compensation for injuries from patients.
With this decision, it is clear that the courts are continuing a slow but steady expansion of the assumption of risk doctrine. As a result, our clients may now have potentially stronger defenses available to them in negligence and premises liability cases based on injuries to plaintiffs involved in business-related, or other “non-recreational” activities. If you have any questions regarding this case, or any other legal matters, feel free to contact Bradley & Gmelich.
New Partners
  Shirley R. Sullinger, Esq. Jaimee K. Wellerstein, Esq.
Bradley & Gmelich proudly announces that Shirley R. Sullinger, Esq. and Jaimee K. Wellerstein, Esq. have been named Partners of the Firm
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