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Carolyn Gregory v. Lorraine Cott et al

January 28, 2013


APPEAL from a judgment of the Superior Court of Los Angeles County, Gerald Rosenberg, Judge. (Los Angeles County Super. Ct. No. SC109507)

The opinion of the court was delivered by: Armstrong, Acting P. J.




Defendant Bernard Cott contracted with a home care agency to provide the services of an in-home caregiver to care for his wife, defendant Lorraine Cott,*fn1 who suffered from Alzheimer's disease. Lorraine injured the caregiver, plaintiff Carolyn Gregory, who thereupon sued Lorraine for battery and Lorraine and Bernard for negligence and premises liability. We hold that defendants are entitled to summary judgment in their favor on the ground of primary assumption of risk.


In 2005, Bernard contracted with a home care agency, CarenetLA, to provide in-home care at a single family home for his 85-year-old wife, Lorraine, who had suffered from Alzheimer's disease for at least nine years. Shortly thereafter, CarenetLA assigned plaintiff to defendants' home to provide the contracted caregiver services.

Plaintiff said that she had training in dealing with clients suffering from Alzheimer's disease and had provided services for Alzheimer's patients in the past. When plaintiff started working for defendants she was aware that Lorraine had Alzheimer's and knew that Alzheimer's patients could become violent. She understood that one of her duties in dealing with Alzheimer's patients was to provide "constant supervision for [the] protection [of] . . . patients, family members, [and] the caregiver." She had been injured by an Alzheimer's patient in the past. Lorraine could not carry on a coherent conversation, and Bernard informed plaintiff at the outset that Lorraine was combative and engaged in "biting, kicking, scratching, [and arm] flailing." As time went on and as Lorraine's disease progressed, she became "more combative physically." She required more physical restraint during bathing for her protection. On occasions, plaintiff transported Lorraine to a center at which Lorraine was aggressive with other people and at one time struck somebody. Plaintiff alleged that Lorraine "had violent tendencies." From time to time, Lorraine injured plaintiff, but plaintiff never asked her employer to reassign her because, according to plaintiff, "[plaintiff] could handle the job."*fn3

In 2008, while plaintiff was washing dishes and had a knife in her hand, Lorraine made contact with plaintiff and reached for a knife that plaintiff was holding. As a result, plaintiff was cut on the wrist by the knife, suffering significant injuries. Plaintiff testified that although Lorraine's eyes were open, "she wasn't seeing me."

Plaintiff filed an action against Lorraine for battery, negligence, and premises liability and against Bernard for negligence and premises liability. Defendants moved for summary judgment, which motion the trial court granted.


A. Standard of Review

A trial court properly grants a motion for summary judgment if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The moving party bears the burden of showing the trial court that the plaintiff has not established, and cannot reasonably expect to establish, the elements of a cause of action. We review the trial court's decision de novo. (State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018.) Whether the assumption of risk doctrine applies in a particular case is also a question of law that we decide de novo. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 (Nalwa); Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 227.) Cases involving a primary assumption of risk defense generally are "'amenable to resolution by summary judgment.'" (Kahn v. Eastside Union High School Dist. (2003) 31 Cal.4th 990, 1004, quoting from Knight v. Jewett (1992) 3 Cal.4th 296, 313 (Knight).)

B. Assumption of Risk

As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their willful or negligent conduct injures another person. (Civ. Code, § 1714; Knight, supra, 3 Cal.4th at p. 315.) There are, however, exceptions to this rule, based on statute or public policy. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.) One exception is the doctrine of primary assumption of risk, which bars a recovery by a plaintiff "when it can be established that, because of the nature of the activity involved and the parties' relationship to the activity, the defendant owed the plaintiff no duty of care." (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538, citing Knight, supra, 3 Cal.4th at pp. 314-315.) The relationship of the parties to each other is also a consideration. (Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 530.) "It must then be determined, in light of the activity and these relationships, whether the defendant's conduct at issue is an 'inherent risk' of the activity such that liability does not attach as a matter of law." (Ibid; see Knight, supra, 3 Cal.4th at pp. 314-315.) If the doctrine is applicable, it bars a plaintiff's negligence and intentional tort claims. (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 166; Hamilton v. Marintelli & Associates (2003) 110 Cal.App.4th 1012, 1024.)

In the recent case of Nalwa, supra, 55 Cal.4th at page 1156, the court said that "the primary assumption of risk doctrine is 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' (Beninati v. Black Rock City, LLC [(2009)] 175 Cal.App.4th [650,] 658)." The court added that in applying the doctrine "we do not 'expand the doctrine to any activity with an inherent risk' . . . 'the primary assumption of risk doctrine in its modern, post-Knight construction is considerably narrower in its application.'" (Id. at p 1157.) The court did not disapprove of cases in which the doctrine of primary assumption of risk had been applied in contexts other than sports and recreational activities. (See Beninati v. Black Rock City, LLC, supra, 175 Cal.App.4th at 650, 658 [bonfire injury]; McGarry v. Sax (2008) 158 Cal.App.4th 983, 999 [spectators at skateboarding event]; Kindrich v. Long Beach Yacht Club (2008) 167 Cal.App.4th 1252, 1260 ["another example "of primary assumption of risk . . . [is] where plaintiff is hired to undertake particular dangerous job"]; Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 839 ["California courts have expanded the scope of the assumption of risk doctrine to encompass dangerous activities in other contexts where the activity is inherently dangerous"]; Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326, 333 [injury by fitness trainer]; Saville v. Sierra College (2005) 133 Cal.App.4th 857 [peace officer training class]; Tilley v. CZ Master Assn. (2005) 131 Cal.App.4th 464, 489-490 [private security guard]; Hamilton v. Marintelli & Associates, supra, 110 Cal.App.4th at pp. 1021-1024 [peace officer training of physical restraint methods]; Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 994, fn. 22 ["The courts have applied primary assumption of risk principles to activities other than sporting or recreational endeavors, including injuries in the workplace"]; Dyer v. Superior Court (1997) 56 Cal.App.4th 61, 72-72 [tow truck driver aiding motorist]; Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761 (Herrle) [caretaker of Alzheimer's patient].)

We view the Supreme Court's language that the primary assumption of risk doctrine did not apply "to any activity with an inherent risk" such as "travel on the streets and highways and in many workplaces" (Nalwa, supra, 55 Cal.App.4th at p. 1157) as not ruling out its application to non-sports and recreational activities. As discussed post, the 1996 case of Herrle, supra, 45 Cal.App.4th 1761, which applied the primary assumption of risk doctrine to a caretaker of an Alzheimer's patient, has been referred to in many of the cases and articles cited post. The Supreme Court has applied the primary assumption of risk doctrine applies to activities other than sports or recreation. (Priebe v. Nelson (2006) 39 Cal.4th 1112 [dog kennel activities]; Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at pp. 544-546 [veterinary activities].) We believe that the primary assumption of risk doctrine can be applied to those whose occupation is caring for Alzheimer's patients, some of which patients can pose physical risks of injury.

C. Plaintiff's Claims Barred by Primary Assumption of Risk Doctrine

In Herrle, supra, 45 Cal.App.4th 1761, the plaintiff was a nurse's aide and an employee of a convalescent hospital. She was regularly exposed to patients who suffered from Alzheimer's disease and who could be combative and violent. She was injured when one of these patients struck her. (Id. at pp. 1763-1764.) She sued the estate of the patient. The court held that the plaintiff assumed the risk of her injuries and that the patient did not owe the plaintiff a duty of care. The court, in holding that the primary assumption of risk doctrine barred the claim, said that the "plaintiff, by the very nature of her profession, placed herself in a position where she assumed the duty to take care of patients who were potentially violent and to protect such patients from committing acts which might injure others. The danger of violence to the plaintiff was rooted in the '"'"'very occasion for [the plaintiff's] engagement.'"'"'" (Herrle, supra, 45 Cal.App.4th at p. 1766.) The court added, "Here, we have precisely the situation covered under the primary assumption of the risk doctrine. The plaintiff was engaged as an aide in a convalescent hospital to assume responsibility to care for mentally incompetent patients, many of whom are occasionally violent. [The Alzheimer's patient who struck the plaintiff] was placed specifically in the hospital's care in part to protect her from injuring herself and others because of her violent tendencies. In the words of Knight[, supra, 3 Cal.4th 296, 314-315] 'the nature of the activity' was the protection of the patient from doing harm to herself or others; 'the parties' relationship to the activity' was [the] plaintiff's professional responsibility to provide this protection, the 'particular ...

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