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Premises liability does not apply when plaintiff assumes risk

We are picking up the discussion from our Oct. 6 post, and the subject is more current than ever in light of the controversy surrounding the Ebola virus.

Hospitals and health care companies are working hard to keep their employees safe; airlines are trying to figure out how to reduce the risk to their employees, as well. In the case we have been focusing on, the patient was not contagious, but she could be violent. She had Alzheimer's disease, and the worker was a home health aide hired by the family to help the patient manage day-to-day tasks.

One day, the patient bumped the worker hard, and the worker, who was washing dishes, cut herself with a knife. The cut resulted in what the worker claimed was permanent damage to her fingers. She received workers' compensation benefits from her employer (an agency), and she filed a premises liability lawsuit against the patient and the patient's husband.

Premises liability cases require careful analysis. The basic elements may be there -- the aide was legally in the couple's home when she suffered the injury -- but the analysis goes one step farther. Was the violent behavior that led to the injury predictable? Was it foreseeable, did the aide understand when she took the job, that the patient could be violent and that there was a risk of injury?

The doctrine of assumption of the risk applied to the situation, the courts said. The worker had had similar jobs before, and she was well aware that her patient's behavior could be unpredictable. In fact, that was why she was hired, to keep track of the patient and to make sure the patient caused no harm to herself.

When a baseball fan goes to a game, he assumes the risk of being struck by a baseball. When a hockey player hits the ice, she assumes the risk of injury. She cannot break her arm in a fall during play and then claim she had no warning that such an injury was possible.

The same thinking applies to health care workers, including in-home workers, according to the California Supreme Court. The risk of injury is well-known; it comes with the job. Urgent care personnel know that their continuous exposure to flu patients increases their risk of getting the flu.

The case raises some interesting policy issues, though. And we will get into those in a future post.


Huffington Post, "Legal Liability for Injuries to a Caregiver Caused by an Alzheimer's Patient," Brad Reid

Gregory v. Cott, 59 Cal.4th 996, 331 P.3d 179 (Cal.,2014), via Westlaw

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