Caregivers Assume The Risk of Injury Caused By Alzheimer's Patient

In a case entitled Gregory v. Cott, et al., the California Court of Appeal, Second Appellate District, Division 5, the Court ruled that a hired caregiver, specifically retained to care for an Alzheimer's patient, assumes the risk of being injured by that patient, and cannot sue for damages.

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 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.  The Court held that defendants are entitled to summary judgment in their favor on the ground of primary assumption of risk.

The court concluded: Accordingly, we conclude that the trial court properly determined that each of plaintiff‘s causes of actions against Lorraine and Bernard is barred by the doctrine of primary assumption of risk.  Having been a caretaker for Lorraine for several years, plaintiff could not have been under any illusions concerning Lorraine‘s condition or the premises.  The primary assumption of risk doctrine is a defense as to Bernard, as well as to Lorraine.  As noted, that doctrine applies to both negligence and intentional torts.

You can read the entire opinion at the link below:

http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=2&doc_id=1999114&doc_no=B237645

Of course, the nurse would have a workers compensation claim, but the amount she would receive under that coverage would be significantly less, limited by statute, but the Court certainly has eliminated the possibility of a third party tort claim under such circumstances.  Clearly, taking care of an Alzheimer's patient can be difficult and dangerous.  People who take on that kind of caregiver role deserve our thanks.

When Is Homeowners Insurance Illusory?

In a California Court of Appeals decision, entitled Reichert v. State Farm General Insurance Company, the Fourth District court ruled that a homeowners’ insurer (State Farm) had no duty to indemnify where insureds attempted a remodel of their newly purchased house, but the building inspectors discovered, prior to completion, that the project did not conform to local floodplain regulations and ordered the property demolished. Coverage was clearly excluded under a provision in their policy saying there was no coverage for loss caused by the enforcement of any law or ordinance.

The facts:

Eric and Lizbeth Reichert attempted a remodel of their newly-purchased Huntington Beach house.  Before construction was finished, city building inspectors discovered the project did not conform to Huntington Beach floodplain regulations, and ordered the property demolished.  The Reicherts then sued their architect and their contractor, and also made a claim on their homeowners‟ insurance policy on the theory that it should cover for the loss caused by the architect and contractor demolishing some walls that the City did not permit causing a FEMA violation.  Their insurance company denied the claim, asserting the demolition was not an accidental loss, and in any event the loss was excluded by a provision in their policy saying there is no coverage for loss caused by the enforcement of any law or ordinance.

In it's decision, the Court stated bluntly; "The Reicherts sued their insurer, and the case now comes to us after the insurer's successful motion for summary judgment.  We affirm.  This seems, unfortunately for the Reicherts, a rather clear example of the “law or ordinance exclusion.” 

The Court went on to state, in detail, the reasoning for the decision.

A link to the full decision can be found here:

http://www.courts.ca.gov/opinions/documents/G046582.PDF

There is a lesson to be learned here... before purchasing a home, particularly a home that you intend to remodel or expand, do the research to determine if there are any zoning regulations that may affect your plans.  Failure to do so may very well lead to the pathetic consequence that the Reicherts suffered although, I expect, the architect and general contractor undoubtedly paid substantial damages to the Reicherts.

Bumper Car Rider Beware!

On the last day of 2012, December 31st, the California Supreme Court has ruled that amusement parks are not legally responsible for injuries sustained while participating in a bumper car ride.  In a case entitled Nalwa v. Cedar Fair, the high court ruled that "the primary assumption of risk doctrine, though most frequently applied to sports, applies as well to certain other recreational activities including bumper car rides. We further conclude the doctrine applies to the ride here, even though amusement parks are subject to state safety regulations and even though, as to some rides, park owners owe participants the heightened duty of care of a common carrier for reward."

 Essentially, the Court reasoned that bumper car rides carry some inherent risk that is obvious, much the same way that certain sports have an inherent element of risk and that those that participate in such activities, assume the risk.  You can read the full text of the decision at: 

http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=1986250&doc_no=S195031 .

 I would point out that not all risk is assumed.  If the bumper car were defective and exploded or someone riding in the vehicle were electrocuted due to poor maintenance, the doctrine of primary assumption of the risk would not apply.  But for properly operating and maintained rides, such as the one in this case, it would appear that there will be no liability for foreseeable risks of injury.  Hopefully, in light of this decision reducing liability, amusements parks will pass on the savings and keep prices down.