FRANCINE HERRLE, Plaintiff and Appellant, v. ESTATE OF HELEN I. MARSHALL, Defendant and Respondent; CONSTITUTION STATE SERVICE COMPANY, Intervener and Appellant.
No. G014894
Fourth Dist., Div. Three.
May 31, 1996.
45 Cal.App.4th 1761
Joseph Powell for Plaintiff and Appellant.
Daniel H. Willick as Amicus Curiae on behalf of Plaintiff and Appellant.
Gillette, Loof, Langton & Hagner, Robert C. Kazer and Keith Langton for Intervener and Appellant.
Parker, Stanbury, Babcock, Combs & Bergsten, Parker Stanbury, Richard A. Jones and Dana C. Clark for Defendant and Respondent.
Madory, Zell & Pleiss, Mark G. McGrath, Joan S. Wise, Deborah M. Zuckerman, Bruce B. Vignery, Davis, Samuelson, Blakely & Goldberg and Marjorie G. Fuller as Amici Curiae on behalf of Defendant and Respondent.
OPINION
RYLAARSDAM, J.---Francine Herrle sued the Estate of Helen I. Marshall, deceased, under former
FACTS
The case was tried on an agreed statement of facts which included summaries from depositions of plaintiff and several of her coworkers. The evidence is undisputed except that a conflict exists concerning plaintiff‘s prior knowledge of Marshall‘s combativeness. As discussed below, and in the light of the holding in Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532 [34 Cal.Rptr.2d 630, 882 P.2d 347] (hereafter Neighbarger), plaintiff‘s actual knowledge of Marshall‘s propensity to violence is irrelevant to whether her claim is barred as a matter of law by primary assumption of risk, the dispositive issue herein.
Plaintiff worked at a convalescеnt hospital as a certified nurse‘s aide. The hospital had many patients suffering from Alzheimer‘s disease. Violence is a common trait among Alzheimer‘s patients. Plaintiff knew her job exposed her to patients suffering from mental illnesses which made them violent, combative and aggressive. She also knew of prior instances where aides were struck by patients. Nurse‘s aides received training in how to approach, handle, place in bed, and restrain patients.
Marshall was a patient suffering from senile dementia and Alzheimer‘s disease. She was occasionally combative and belligerent. Prior to the incident involving plaintiff, she slapped or hit several other hospital employees. The admitting diagnosis indicated “She can be very combative at times.” Likewise, the nursing assessment indicated, “. . . becomes very belligerent at times. High risk for injury.”
The incident resulting in plaintiff‘s claim occurred when Marshall became combative while another nurse‘s aide was moving her from a chair to a bed. Plaintiff, fearing Marshall would fall to the floor, entered the room to help. While holding Marshall and moving her onto the bed, Marshall struck plaintiff about the head several times causing serious jaw injuries.
DISCUSSION
The Doctrine of Primary Assumption of Risk
As a general rule, persons are liable for injuries they cause others as a result of their failure to use due care. (
One such exception is the assumption of the risk doctrine. Although traditionally viewed as a defense to an action for negligence, the modern doctrine of primary assumption of risk involves a situation where defendant does not owe a duty of care to plaintiff. Since such a duty of care is an element of the tort of negligence, such situations should perhaps be described as the absence of negligence. Secondary assumption of risk, on the other hand, is a defense, now merged in comparative negligence, to a negligence cause of action.
In Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696], the Supreme Court undertook the task of determining the scope of primary assumption of risk and its relationship to comparative negligence. (See Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393].) Knight stated: “In cases involving ‘primary assumption of risk‘---where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury---the doctrine continues tо operate as a complete bar to the plaintiff‘s recovery. In cases involving ‘secondary assumption of risk‘---where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant‘s breach of duty---the doctrine is merged into the comparative fault scheme. . . .” (Knight v. Jewett, supra, 3 Cal.4th at pp. 314-315.)
Here, we have precisely the situation covered under the primary assumption of the risk doctrine. 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. Marshall was placed specifically in the hospital‘s care in part to protect her from injuring herself and others because of her violent tendеncies. In the words of Knight, “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 plaintiff‘s professional responsibility to provide this protection, the “particular risk of harm that caused the injury” was the very risk plaintiff and her employer were hired to prevent.
Civil Code Section 41
Plaintiff argues assumption of risk is not available where defendant is an incompetent because
The short answer to this argument is that
In the context of a stranger injured by an incompetent, this rule presents sound public policy. As between those two persons, the mere fact one caused injury without the requisite intent to commit the act should not absolve that individual. But defendant, through the agency of her relatives, took steps to protect both herself and others from the very injury suffered by plaintiff, by entering a convalescent home which cared for persons who could not control their actions. Plaintiff worked there as a nurse‘s aide aware of the patients’ potential for violence and was trained on how to avoid or
An earlier California case refused to hold that, as a matter of law, assumption of risk barred an action by an injured attendant for injuries sustained at the hands of an institutionalized person. (Mullen v. Bruce, supra, 168 Cal.App.2d at pp. 496-498.) Mullen held the defense of assumption of risk “was a factual question for the determination of the court.” (Id. at p. 498.) The case provides a questionable precedent. The type of assumption of risk analyzed in Mullen differs from the modern doctrine, as explained in Neighbarger. When Mullen was decided, assumption of the risk operated as a complete defense to recovery, if a plaintiff voluntarily accepted a known and appreciated risk. (Gomes v. Byrne (1959) 51 Cal.2d 418, 420 [333 P.2d 754]; Prescott v. Ralph‘s Grocery Co. (1954) 42 Cal.2d 158, 161-162 [265 P.2d 904].) Thus, Mullen involved what today would be construed as secondary assumption of risk.
The doctrine of primary assumption of risk is not about what the plaintiff knew and when she knew it, or, as the Neighbarger court put it, a “plaintiff‘s subjective, voluntary assumption of a known risk.” (Neighbarger, supra, 8 Cal.4th at p. 537.) Rather, it is, like the fundamental nature of duty itself in tort law, a legal conclusion based on the relationship between the parties.1 (Cf., e.g., Christensen v. Superior Court (1991) 54 Cal.3d 868, 885 [2 Cal.Rptr.2d 79, 820 P.2d 181] [“’ “[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.” [Citation.]’ “].) For this reason, we consider Mullen‘s analysis on the issue of assumption of the risk to be of no assistance.
Recent Cases in Other States
Two recent Florida decisions and a decision of the Wisconsin Supreme Court have dealt with the same issue which we face here. In Anicet v. Gant (Fla.Dist.Ct.App. 1991) 580 So.2d 273, the court barred recovery by Gant, a state hospital attendant, injured when he was violently attacked by Anicet, an insane resident. Anicet recognized Florida law provides “a lunatic is liable in the same generalized way as is an ordinary person for both ‘intentional’ acts and ‘negligent’ ones.” (Id. at p. 275.) But it noted Gant “was employed to encounter, and knowingly did encounter, just the dangers which injured him” (id. at p. 276), while Anicet, “his relatives, and society did as much as they could do . . . by confining him. . . .” (Ibid.) Thus, the court concluded, “. . . we revert to the basic rule that where there is no fault, there should be no liability. Since the reasons for the limited exception to this rule which have been adopted as to insane persons do not apply to the present situation, so the exception itself cannot do so.” (Id. at p. 277.)
Anicet discussed and distinguished Mullen on ground it applied
In Mujica v. Turner (Fla.Dist.Ct.App. 1991) 582 So.2d 24, the same court held a physical therapist could not recover from a nursing home patient suffering from Alzheimer‘s disease who injured her. Citing Anicet, the court held, “[a]lthough we agree that ordinarily a mental incompetent is responsible for his own torts, . . . this rule is inapplicable when the incompetent has been institutionalized, as here, because of her mental incompetency and injures one of her caretakers while in such institution.” (Id. at p. 25.)
In Gould v. American Family Mut. Ins. Co. (1996) 198 Wis.2d 450 [543 N.W.2d 282], the Wisconsin Supreme Court examined the common law rule in a case indistinguishable from the one before us. In Gould, the family of a
The Gould court acknowledged that Wisconsin had a rule which functioned like California‘s
The Gould court next confronted the central intellectual problem presented by the common law rule (and California‘s
Even so, the Gould court determined that under the limited “circumstances” of the situation before it, the defendant Alzheimer‘s patient could not be held liable for knocking the nurse to the floor. The nurse was not an “innocent member of the public,” but “employed as a caretaker specifically for dementia patients.” (Id. at p. 286.) She had “express knowledge оf the potential danger inherent in dealing with Alzheimer‘s patients in general and [the defendant] in particular.” (Id. at p. 287.) The patient‘s “disorientation and potential for violence is the very reason he was institutionalized and needed the aid of employed caretakers.” (Ibid., italics added.) Thus, even though “ordinarily a mentally disabled person is responsible for his or her torts,” the relationship of such a person with an “employed caretaker” reveals an exception to the rule. (Ibid.) “[A] person
Gould did not mention Neighbarger, but its analysis is remarkably congruent with it. Gould is an extended commentary on the idea thаt the basic relationship between the Alzheimer‘s patient and his employed caretaker “justifies exonerating” the patient “from the usual duty of care.” (See Neighbarger, supra, 8 Cal.4th at p. 543.)
We find the reasoning of Anicet, Mujica and Gould persuasive. Like California‘s primary assumption of the risk doctrine, these decisions are based on the lack of a duty owed by institutionalized mentally incompetent persons towards their employed caretakers. Because of the nature of the activity, caring for the mentally infirm, and the relationship between the parties, patient and caregiver, mentally incompetent patients should not owe a legal duty to protect caregivers from injuries suffered in attending to them. Here, the very basis of the relationship between plaintiff and Marshall was to protect Marshall from harming either herself or others.
Sound Public Policy Precludes the Imposition of Liability
Plaintiff has not cited, nor аre we aware of, any body of case law which stands for the proposition that health care providers can sue their patients for injuries inherent in the very condition for which treatment was sought. The older cases dealing with injuries done by institutionalized persons to institutional caregivers (Mullen v. Bruce, supra, 168 Cal.App.2d 494, Van Vooren v. Cook (1947) 273 A.D. 88 [75 N.Y.S.2d 362] and McGuire v. Almy (1937) 297 Mass. 323 [8 N.E.2d 760]) do not approach the question of assumption of risk in terms required by the Supreme Court in Neighbarger: namely, whether the relationship between the injured health care provider and the institutionalized patient defendant was such that public policy should preclude recovery.
When the relationship between health care providers and health care recipients is considered, the idea that a patient should be liable for “conduct” part and parcel of the very disease which prompted the pаtient (or, as here, the patient‘s family) to seek professional help in the first place becomes untenable. It is the health care provider, not the patient, who is in the best position to protect against the risks to the provider rooted in the very reason for the treatment. Were we to reach a contrary conclusion, nurses working in an infectious disease unit could sue a patient for giving them tuberculosis.
Furthermore, were we to hold that plaintiff is entitled to recover, the ultimate result would place liability on plaintiff‘s employer. Since defendant was placed in the hospital for the very purpose of protecting her from doing harm to herself or others, the harm done to plaintiff would derive from the failure of the hospital to carry out its duties to defendant. The hospital assumed the primary duty to protect defendant and those who might be harmed by her. Therefore, should defendant be liable she would be entitled to assert a right to indemnification against the hospital. (See Herrero v. Atkinson (1964) 227 Cal.App.2d 69 [38 Cal.Rptr. 490]; Rest.2d Torts, § 886B, subd. (2)(f) [“Instances in which indemnity is granted” include “The indemnitor was under a duty to the indemnitee to protect him against the liability to the third person.” (Italics added.)].)
The net result of such circuitous litigation would place the ultimate responsibility to pay for the employee‘s damages on the shoulders of the employer-hospital. This would leave us with the result that the employer would be deprived of the limitations placed upon its liability under the workers’ compensation laws.
The Neighbarger Case
Plaintiff argues barring recovery in this case would constitute an impermissible extension of the firefighter‘s rule. In Neighbarger, the Supreme Court refused to apply the firefighter‘s rule to privately employed industrial safety supervisors who were injured while fighting a fire. (Neighbarger, supra, 8 Cal.4th at pp. 541-546.) In so ruling, the court noted “It is certainly not the case . . . that private employees assume all the foreseeable risks of their employment. As we have explained above, Knight . . . requires a closer analysis, focusing not on the foreseeability of the hazard or the plaintiff‘s subjective awareness of risk, but on the defendant‘s duty of care and the relationship of the parties.” (Id. at p. 545, fn. 4.)
Neighbarger does not hold that primary assumption of risk in an employment context can only be applied to public employees. The court notes, “The firefighter‘s rule should not be viewed as a separate concept, but as an example of the proper application of the doctrine of assumption of risk, that is, an illustration of when it is appropriate to find that the defendant owes no
The very justifications for the application of primary assumption of risk in case of public firefighters, given by the Neighbarger court compel its application herein. The court stressed the relationship between the public, which hires the firefighter, to confront the very risk which supplies the basis for the claim. In doing so, the court notes, based on Walters v. Sloan, supra, 20 Cal.3d 199 that an analogous situation exists, where “a contractor . . . is hired to remedy a dangerous situation; such a private contractor, as a matter of fairness, should not be heard to complain of the negligence that is the cause of his or her employment.” (Neighbarger, supra, 8 Cal.4th at p. 542.) So here, plaintiff was hired for the very purpose of preventing the danger which now provides the basis for her suit. Again from Neighbarger, “. . . it is unfair to charge the defendant with a duty of care to prevent injury to the plaintiff arising from the very condition or hazard the defendant has contracted with the plaintiff to remedy or confront.” (Ibid.)
In holding that the firefighter‘s rule was not to be applied to privately employed industrial safety supervisors and thus permitting them to recover from one negligently causing the fire which injured them, the court notes, “The third party [i.e. the negligent defendant], . . . has not provided the services of the private safety employee. Nor has the third party paid in any way to be relieved of the duty of care toward such a private employee. Having no relationship with the employee, and not having contracted for his or her services, it would not be unfair to charge the third party with the usual duty of care towards the private safety employee.” (Neighbarger, supra, 8 Cal.4th at p. 543.) This rationale clearly does not apply here. Defendant, through her relatives, did contract, seek, and need the services of plaintiff. Defendant, through these same relatives, paid to be relieved of a duty of care. Defendant had a relationship of care receiver to caregiver with plaintiff. Therefore it would be unfair to now impose on defendant the very duty of care which she had contracted for plaintiff to supply.
Our decision relies on the relationship between mentally incompetent persons and those responsible for them with the persons who have agreed to care for incompetent persons, and the conduct of those responsible for the incompetent in entrusting their charge to the professional care and control of convalescent hospitals or other similar institutions. Consequently, we conclude Neighbarger does not bar application of the assumption of the risk doctrine in this case.
Sills, P. J., concurred.
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 modern 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.
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. 274, 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
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.
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];
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
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 endangerеd 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 аre 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.
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 Alzheimеr‘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.