Herrle v. Estate of Marshall

WALLIN, J., Dissenting.

The majority’s decision to apply primary assumption of risk to deny recovery to Francine Herrle relies on a misstatement of the relationship between Herrle and Marshall and ignores modem beliefs and legal requirements concerning the treatment of our most vulnerable elderly citizens. It is both bad law and bad policy.

Francine Herrle was employed as a nurse’s aide at a convalescent hospital. Her duties, for which she was paid not much more than minimum wage, included changing bedpans, helping the elderly to and from their beds, and assisting them in feeding and dressing themselves. Some of the many elderly patients at the hospital, including the late Helen Marshall, then 72 years old, suffered from Alzheimer’s disease, which causes presenile or senile dementia. Of the patients suffering from Alzheimer’s, some experienced periodic outbursts of violence. Marshall’s relatives caused her to be admitted to the hospital because her dementia was too advanced for home care, particularly due to episodes of anger and violence toward anyone attempting to help her. Nine days after her admission, a nurse’s aide was transferring Marshall from her wheelchair to her bed when Marshall began struggling. The nurse’s aide feared she would drop Marshall and called out for assistance. Herrle, responding to this emergency, rushed into the room, wrapped her arms around Marshall, and put her into bed. As she was being moved, Marshall repeatedly struck Herrle with both fists, causing severe and permanent injuries to both jaw joints. Herrle has undergone three surgeries and most likely will require total jaw joint replacement in the future. The parties stipulated Herrle’s damages exceeded the $200,000 limit of Marshall’s homeowners policy, but agreed to limit any recovery to that amount.

After a court trial, primarily on stipulated facts, the trial judge ruled that “the injury was caused by a hazard inherent in the employment relationship [and falls] within the category of the primary assumption of risk—or stated conversely, that there was no duty owed—and that the court is bound to follow [Nelson v. Hall (1985) 165 Cal.App.3d 709 (211 Cal.Rptr. 668)] and adopts the logic and phraseology of the Florida cases . . . .” (Italics added.) Judgment was entered in favor of Marshall.

My colleagues hold that primary assumption of risk, a doctrine previously applied in this state to public safety employees, participants in athletic events, and veterinarians treating animals, also extends to private, convalescent home employees engaged in caring for our most vulnerable elderly citizens. I cannot agree.

*1774After Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696], primary assumption of risk acts as a complete bar to a plaintiff’s recovery. The doctrine focuses on whether a defendant owes a plaintiff a duty of care. In making this determination, courts must look to the nature of the activity and the relationship of the parties to see if public policy supports finding no duty. (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 541 [34 Cal.Rptr.2d 630, 882 P.2d 347]; Knight v. Jewett, supra, 3 Cal.4th at pp. 314-315.) In a few, very limited circumstances where a defendant has contracted for a plaintiff’s services and the plaintiff is injured by the very reason necessitating his or her employment, no duty is owed, and the plaintiff is barred from recovery.1 (Neighbarger, supra, 8 Cal.4th at pp. 541-542.) To illustrate this point, Neighbarger cited the following examples: (1) a contractor hired to remedy a dangerous situation cannot recover when injured by the very danger he or she is hired to fix; (2) a public firefighter hired to fight fires is barred from recovering when injured by the very fire he or she is called to extinguish; and (3) a veterinarian hired to treat an animal cannot recover if bitten by it.2 (8 Cal.4th at pp. 541, 542, 545.)

Neighbarger also cited Anicet v. Gant (Fla.Dist.Ct.App. 1991) 580 So.2d 273, as an example. (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 542.) The patient in Anicet was committed to a special ward in a state hospital for insane and violent persons. Gant was a state hospital attendant employed as a unit treatment specialist assigned to care only for patients confined to this special ward. “His duties specifically included the treatment and, if possible, the control of patients like Anicet, of whose dangerous tendencies he was well aware.” (Anicet, supra, 580 So.2d at p. 21 A, italics added.) The very reason for Gant’s employment was to handle violent and insane patients, and Anicet had contracted for the plaintiff’s services by virtue of being a member of the public which employed plaintiff. (Ibid.)

In attempting to avoid Neighbarger's holding limiting assumption of the risk, the majority relies entirely on Anicet and two similar cases from other *1775jurisdictions. The majority states “ ‘the nature of the activity’ was the protection of [Marshall] from doing harm to herself or others; ‘the parties’ relationship to the activity’ was [Herrle’s] professional responsibility to provide this protection, the ‘particular risk of harm that caused the injury’ was the very risk [Herrle] and her employer were hired to prevent.” (Maj. opn., ante, at pp. 1765 and 1770.) While this may be true of the relationship between the patient and the plaintiff in Anicet, it is not true of the relationship between Herrle and Marshall.

Herrle was hired as a nurse’s aide in a private convalescent hospital and was charged with caring for elderly patients in general (i.e., changing bedpans and linens, and dressing and feeding patients). Contrary to my colleagues’ assertions, she was not hired for the sole purpose of preventing potentially violent Alzheimer’s patients from injuring themselves and others. Additionally, the mere fact that a family contracts with a private convalescent hospital to care for an incompetent family member should not bar every employee who may come into contact with the patient, regardless of how remote the contact may be, from recovering for injuries the patient may inflict. Just as in Neighbarger, where fighting fires was incidental to the safety supervisors’ overall job duties, occasionally caring for violent Alzheimer’s patients was incidental to Herrle’s overall duty of caring for elderly patients. Under neither circumstance should primary assumption of risk bar recovery for injuries incidental to employment.

As its principal support for applying primary assumption of risk to the present case, the majority cites two additional out-of-state cases, Mujica v. Turner (Fla.Dist.Ct.App. 1991) 582 So.2d 24, and Gould v. American Family Mut. Ins. Co. (1996) 198 Wis.2d 450 [543 N.W.2d 282]. Mujica simply followed Anicet without discussing the rule. Mujica was a physical therapist in charge of the daily living activity program for Alzheimer’s patients at a nursing home. She was denied recovery for injuries sustained when a patient shoved her, causing her to fall. Unlike Herrle, the plaintiff in Mujica was specifically hired to care for Alzheimer’s patients (i.e., it was the very reason for the physical therapist’s employment). Additionally, the plaintiff was injured by one of her own patients.

The same is true for the plaintiff in Gould. There, the plaintiff was the head nurse of a secured dementia unit in a restricted health care center, who sustained injuries when one of her own patients knocked her to the floor. (Gould v. American Family Mut. Ins. Co., supra, 543 N.W.2d at pp. 283, 287.) Again, as with the physical therapist in Mujica, working directly with the Alzheimer’s patient who injured her was the very reason for her employment.

*1776Herrle’s situation is much different from the plaintiffs in Mujica and Gould. Not only was Herrle hired to care for elderly patients in general, but Marshall was not even one of her patients. Thus, the majority is incorrect in stating, “. . . the very basis of the relationship between [Herrle] and Marshall was to protect Marshall from harming either herself or others.” (Maj. opn., ante, at p. 1770.) Herrle had never cared for Marshall before the incident and was merely coming to the assistance of another nurse’s aide when she was injured.

The majority’s strained application of primary assumption of risk to these facts is also contrary to the decision in Mullen v. Bruce (1959) 168 Cal.App.2d 494 [335 P.2d 945, 77 A.L.R.2d 620]. Mullen was a registered nurse employed on an independent contractor basis with a sanitarium. One evening, she was hired to care for Bruce, who was being treated for alcoholism. Bruce’s symptoms included delirium tremens, and Mullen was told that Bruce was violent and unmanageable. During the night, Bruce, dressed in a nightgown and irrational, tried to leave the sanitarium. While attempting to return her to her bed, Mullen suffered severe arm and shoulder fractures. The Court of Appeal rejected Bruce’s contention that Mullen assumed the risk of injury when she accepted the nursing assignment, finding implicitly that the patient owed Mullen a duty of care.3

Applying the Neighbarger test, the relationship between Mullen and Bruce was much closer than the relationship between Herrle and Marshall. As an independent contractor, Mullen was specifically hired to care for the very patient who injured her. Herrle was a hospital employee involved in the care of many different patients; Marshall was not one of them.

Recent California cases on assumption of risk support Herrle’s contention that the doctrine should not be applied to bar her recovery. To date, the doctrine has been applied in this state in only limited circumstances. Participants in sporting activities have been found to assume the risk of injuries normally incident to the game. (Knight v. Jewett, supra, 3 Cal.4th 296 [touch football]; Ford v. Gouin (1992) 3 Cal.4th 339 [11 Cal.Rptr.2d 30, 834 P.2d 724] [water-skiing]; Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 [45 Cal.Rptr.2d 855] [snow skiing]; Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248 [38 Cal.Rptr.2d 65] [white-water rafting]; *1777O’Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188 [35 Cal.Rptr.2d 467] [snow skiing]; Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578 [23 Cal.Rptr.2d 671] [horseback riding]; Stimson v. Carlson (1992) 11 Cal.App.4th 1201 [14 Cal.Rptr.2d 670] [sailing].) Additionally, because their primary activity is responding to hazardous situations and they receive special compensation4 for confronting the dangers of their occupation, firefighters also have been held to assume the risk of injury.5 (Walters v. Sloan (1977) 20 Cal.3d 199 [142 Cal.Rptr. 152, 571 P.2d 609]; see also Hubbard v. Boelt (1980) 28 Cal.3d 480 [169 Cal.Rptr. 706, 620 P.2d 156] [applying assumption of risk for the same reasons to a police officer injured in a high-speed chase].)

Attempts to broaden the application of the doctrine to other employment contexts have been uniformly rejected. Assumption of risk does not extend to a private safety employee whose duties include firefighting, in part because he or she does not receive the special pay or disability and retirement benefits of a public firefighter. (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 532.) Similarly, private tow truck drivers and ambulance attendants do not assume the risk of injuries incident to their occupation. (Id. at pp. 545-546.) Neither do private security guards injured during patrol. (Marquez v. Mainframe (1996) 42 Cal.App.4th 881 [50 Cal.Rptr.2d 34].) Despite Herrle’s misfortune, taking care of the elderly is far less dangerous.

Contrary to the majority’s assertions, Marshall’s duty towards Herrle does not depend on the applicability of Civil Code section 41. The general rule is that persons are liable for injuries they cause others as a result of their failure to use due care (Civ. Code, § 1714, subd. (a); Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 536; Rowland v. Christian (1968) 69 Cal.2d 108, 111-112 [70 Cal.Rptr. 97, 443 P.2d 561]), and the only exceptions to this rule are those created by statute or clear public policy (Neighbarger, supra, 8 Cal.4th at p. 537; Rowland, supra, 69 Cal.2d at p. 112). Thus, the majority’s statement that “Where no duty exists in the first place, section 41 *1778does not create one” (maj. opn., ante, at p. 1766), is inaccurate; a duty always exists unless negated by statute or clear public policy. Section 41 does not create a duty, it simply codifies the Legislature’s intent that incompetence not be recognized in this state as an exception to the general rule (i.e., it prohibits an incompetent from raising incompetence as a defense). Thus, although Marshall can raise primary assumption of risk as a defense, she cannot use her incompetence as a policy reason supporting application of the doctrine.

Public policy supports finding liability in this case. As the California Psychiatric Association6 states in its amicus curiae brief supporting Herrle, “[H]ad Ms. Herrle known that the trial court would apply the doctrine of primary assumption of the risk to rule categorically that she could not recover from the patient’s liability insurer for any injuries she suffered in coming to the patient’s aid, she might have taken the safer course of not intervening to protect the patient and the other health care provider who was endangered by the patient. As a result of the trial court’s [and the majority’s] ruling, it will be much more likely that caregivers will use impersonal mechanisms, such as seclusion and restraint, to control patients and, thereby protect themselves at the expense of more humane treatment for the patients. This result is antithetical to good patient care.”

Nevertheless, the majority suggests that “public policy” requires that Herrle and other caregivers suffer the consequences so that those who caused them harm can avoid financial responsibility. To support this notion, the majority uses farfetched examples. No court has ever suggested that the accidental transmission of an infectious disease from a patient to a health care worker can lead to liability. But patients who assault their caregivers are hardly in the same position. Is the majority suggesting the status of a patient immunizes an individual from assaultive behavior so long as the victim is a healthcare worker?

Finally, the majority even suggests that a patient should be immune—and presumably the hospital responsible—if the patient assaults a visitor or another patient because “[t]he hospital assumed the primary duty to protect [its patient] and those who might be harmed by [him or] her.” (Maj. opn., ante, at p. 1771.) To hold the patient liable for assaultive conduct would, they suggest, in perhaps the most farfetched argument of the majority opinion, entitle the patient “to assert a right to indemnification against the hospital.” (Ibid.) But no case has ever suggested that a patient who commits an assault can shift the financial responsibility to the hospital caring for him or her.

*1779Additionally, in most instances, patients such as Marshall can insure against the types of injuries Herrle suffered. The only option for caregivers such as Herrle, on the other hand, is to change professions or provide less compassionate care. Our most vulnerable elderly citizens deserve legal rules that encourage the best possible care; so do their caregivers.

Finally, the majority apparently concludes that mere proof that a patient suffers from Alzheimer’s disease and is occasionally combative justifies application of the doctrine of primary assumption of risk. This insulates all such persons from liability to health care workers they assault. But Alzheimer’s disease is a progressive condition. Many patients function quite well. They visit with friends and family, play golf or swim, and even hold jobs. A diagnosis of Alzheimer’s disease is simply not a sufficient reason to insulate them from liability to victims of their tortious conduct.

If the majority’s view survives, the next time Herrle and others caring for our elderly see an Alzheimer’s patient attacking another patient, visitor or caregiver, they would be well advised to use greater force on the patient to avoid injury to themselves. Herrle’s successful effort to carefully return Marshall to her bed without injuring the patient has resulted in a lifetime of suffering. Herrle will continue to suffer, but so will the care provided to the ever increasing number of elderly patients.

I would reverse the judgment. Since no other defense is suggested by the parties, I would order judgment for the plaintiff for $200,000.

The petitions of all appellants for review by the Supreme Court were denied September 4, 1996. Mosk, J., was of the opinion that the petitions should be granted.

Contrary to the majority’s and trial judge’s assertions, the test for applying primary assumption of risk does not rest on whether a hazard is inherent in an employee’s occupation. (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at pp. 536, 545, fn. 4 [“It is certainly not the case . . . that private employees assume all the foreseeable risks of their employment.”].)

In entering judgment in favor of Marshall, the trial judge relied on Nelson v. Hall (1985) 165 Cal.App.3d 709 [211 Cal.Rptr. 668] which involved a claim by a veterinarian’s assistant bitten while treating the defendant’s dog. The care of humans, however, cannot be compared to the care of animals. There is always a risk of being bitten by a dog, and veterinarians are in the best position to protect against injury. They can use cages, restraints, muzzles, leashes, choke chains, whips, cross-ties, tranquilizer darts, and even deadly force to safeguard themselves from injury by an animal. None of these measures are appropriate, to say the least, in the care, treatment, and safeguarding of mentally incompetent elderly patients. In fact, all of them, with the possible exception of appropriately prescribed tranquilizers, are horrifying in modem society and would constitute elder abuse. (Welf. & Inst. Code, § 15600 et seq.)

The majority finds Mullen inapplicable because it was decided when assumption of risk operated as a complete bar to recovery if a plaintiff voluntarily accepted a known and appreciated risk. The majority reasons, since this type of assumption of risk now falls under the heading of secondary assumption of risk, and the present case deals with primary assumption of risk, Mullen's analysis is of no assistance. Yet, in order to apply secondary assumption of risk, a court must conclude a duty is owed to the plaintiff in the first instance. By finding Mullen could recover, the court implicitly found Bruce owed Mullen a duty.

There is nothing “special” about Herrle’s compensation. She is paid $6.75 an hour.

Another policy reason given for barring a public firefighter’s recovery is that the firefighter is covered for economic losses by workers’ compensation. The majority applies this same policy reason in the present case. (Maj. opn., ante, at pp. 1771-1772.) Neighbarger, however, soundly rejected using availability of worker’s compensation as a policy reason where the injured party is employed by the private sector. (Neighbarger v. Irwin Industries, Inc., supra, 8 Cal.4th at p. 543 [Whenever a public employee is injured, “. . . the public will pay the bill, whether the [employee] is compensated by public benefits derived from taxation, or from insurance proceeds that must be purchased. [Citation.] Our concern to relieve various public agencies of the burden of lawsuits over rights of subrogation that are pointless because the public fisc ultimately pays regardless of the outcome does not apply in the case of private . . . employees.” (Italics added.)].)

The association is an organization composed of 3,800 California psychiatrists.