Alzheimer's Patients Not Liable for Injuring In-Home Caregivers in Calif.

By Mark Wilson, Esq. on August 06, 2014 | Last updated on March 21, 2019

Alzheimer's is a pretty terrible, debilitating disease. Those afflicted are often not in control of their actions. Recognizing this, California already has a rule that Alzheimer's patients in institutional facilities like nursing homes aren't responsible for injuries they inflict on caregivers.

What about in-home caregivers? They had no special protection until Monday, when the California Supreme Court ruled 7-2 that, yes, the rule also applies to them under the doctrine of assumption of risk.

But really, this case presents a legislative, not a judicial, problem.


Carolyn Gregory, the injured care worker in this case, had worked with Alzheimer's patients before. She was washing a knife at the kitchen sink when 85-year-old Lorraine Cott approached her from behind and reached toward the sink. Carolyn tried to restrain her and dropped the knife, which hit her wrist. Since then, she lost feeling in her fingers and still feels pain. Even though she's already received workers compensation, Gregory sued the Cotts for negligence and the Lorraine for battery.

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Court's Opinion

Primary assumption of risk is a general bar to recovery where the defendant owes no duty to the plaintiff, as in recreational activity or "inherent occupational hazards" like firefighting (hence the term "firefighter's rule" for this doctrine). In this case, finding that neither Lorraine nor Bernard Cott -- Lorraine's husband and Gregory's employer -- owed Gregory a duty, the court also concluded that Gregory accepted the occupational risks associated with treating Alzheimer's patients, which could include being injured by them.

Gregory wanted this case analyzed under secondary assumption of risk because, at the time of the injury, she was specifically performing a "housekeeping" function, not a caregiving one. But secondary assumption of risk requires a duty, and the majority didn't find that Gregory was owed one (in a sort of backwards-working logic, the majority looked first to whether there was a breach before it said there was a duty; here, no breach, so there must have been no duty). Whether Gregory was housekeeping or caregiving is largely irrelevant, as the question turned on "the nature of the activity," not the specifics of the activity.

Justice Liu's Concurrence

Justice Goodwin Liu wrote separately to suggest that the tort system is not the best place for cases like this, as "private disputes between low-wage workers and ordinary families who are poorly positioned to mitigate risks or absorb the costs of injuries." For Justice Liu, this case is more about "the broader policy issue of how to improve the safety, training, and protection of workers in home caregiving arrangements."

Justice Rubin's Dissent

Justice Rubin dissented, joined by Justice Werdegar, acknowledged the difficult circumstances, but would still hold Bernard Cott liable in a sort of law-and-economics analysis: "[T]he law should encourage family members like Bernard Cott to weigh the benefits of in-home care against the costs it may impose on others." Ultimately, society may be better off by placing Alzheimer's patients with violent tendencies in specialized institutions where they can be better cared for and everyone else is safer: "Sometimes institutionalization may be preferable, or even necessary, especially when risk of physical injury to the patient or others exists."

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