Defense of Assumption of Risk Bars Claim in In-Home Caregiver’s Negligence Action Against Alzheimer’s Patient (Cal. App.)

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, Carolyn
Gregory, who thereupon sued Lorraine for battery and Lorraine and Bernard for
negligence and premises liability. The court entered summary judgment for the
Cotts on the ground of primary assumption of risk.

On appeal, the decision was affirmed. The court stated that, 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. One
exception was the doctrine of primary assumption of risk, which barred a
recovery by a plaintiff when it could 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. The court held that the
primary assumption of risk doctrine could be applied to those whose occupation
was caring for Alzheimer's patients, some of which patients could pose physical
risks of injury. The inherent risk of hazardous conduct by an Alzheimer's
patient rendered the possibility of injury obvious and negated the duty of care
usually owed for those particular risks of harm. A contracted in-home
caregiver, as plaintiff, was in the same position as a facility caregiver in
undertaking the risks in caring for an Alzheimer's patient.

Gregory v. Cott, 2013 WL 313960
(January 28, 2013)

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