Opinion
F074541
12-21-2017
PAMELA MARIE CAMP, Plaintiff and Appellant, v. ESTATE OF FLORA PATTERSON, Defendant and Respondent.
Law Office of Mark R. Swartz and Mark R. Swartz for Plaintiff and Appellant. McCormick, Barstow, Sheppard, Wayte & Carruth and Scott M. Reddie for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2011112)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. Beauchesne, Judge. Law Office of Mark R. Swartz and Mark R. Swartz for Plaintiff and Appellant. McCormick, Barstow, Sheppard, Wayte & Carruth and Scott M. Reddie for Defendant and Respondent.
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This is an appeal from a judgment of the Superior Court of Stanislaus County entered on an order granting a motion for summary judgment. For the reasons set forth below, we reverse the judgment.
FACTUAL AND PROCEDURAL HISTORY
The facts are taken from the parties' separate statements of undisputed facts. (See Code Civ. Proc., § 437c, subd. (b)(1) & (3); see also Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641 [" ' "[A]ll material facts must be set forth in the separate statement. 'This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.' " ' "].)
Ridi Home Care (RHC) was hired to provide in-home care services to decedent Flora Patterson. Pamela Marie Camp, an RHC employee since mid-2012, was tasked with giving Patterson "constant supervision and care, [24] hour[s] per day, [four] days per week." Camp's primary responsibilities included "prevent[ing] . . . Patterson from wandering away and . . . ensur[ing] her safety." Camp learned Patterson "had a tendency to sneak off and escape" and "hide from her caregivers" and "would leave her house and walk around the block or go to a neighbor's house." RHC advised Camp that Patterson "needed to be kept locked in her home." RHC never specified whether Patterson had Alzheimer's disease or dementia or that Camp's own physical safety was at risk. Camp did not communicate with Patterson's medical providers about a diagnosed condition. Although Camp suspected Patterson "might have dementia," "Patterson seemed to be mentally aware, she seemed to know what she was doing[,] and they could carry on conversations together." In addition, no one told Camp that individuals with dementia were necessarily dangerous.
Respondent's brief indicates Patterson was 83 years old at the time of the incident.
Between May and September 2012, under Camp's supervision, the front door and gates were locked and Patterson was allowed to roam around the interior of the house and the backyard. Nonetheless, prior to September 11, 2012, Patterson wandered away from the residential property twice. On September 11, 2012, Camp and Patterson were watching television when Camp left the room. When Camp returned, Patterson was gone. After searching inside the house to no avail, Camp entered the backyard. She jogged past the swimming pool and toward the gazebo. As Camp was approaching the gazebo, Patterson suddenly jumped out laughing. Camp abruptly halted, injuring her back and left knee in the process.
Camp sued Patterson's estate, alleging "Patterson's act of hiding . . . and then jumping out . . . and suddenly startling [her] was negligent . . . ." (Some capitalization omitted.) Patterson's estate filed a motion for summary judgment, asserting the primary assumption of the risk doctrine barred recovery. On June 23, 2016, the court granted the motion on the following basis:
"The undisputed, material facts demonstrate that Plaintiff was injured as a direct result of protecting her charge, Mrs. Flora Patterson, from the specific risk against which Plaintiff had been hired to protect her: the risk of Mrs. Patterson 'wandering off'. Where an in-home caregiver is injured protecting her charge from the specific risk the caregiver was hired to protect against, the doctrine of primary assumption of the risk applies to bar a negligence lawsuit by the in-home caregiver against the charge. (See, e.g., Gregory v. Cott (2014) 59 Cal.4th 996 [(Gregory)]; Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761 [(Herrle)].)"
We reformatted the citations in the quoted text to conform to the general rules of citation outlined by the California Style Manual. (See generally Cal. Style Manual (4th ed. 2000).)
DISCUSSION
I. Overview of summary judgment
Summary judgment "provide[s] courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar); see Lee v. Marchetti (1970) 4 Cal.App.3d 97, 99 [" 'The salient philosophy behind this procedural device is to provide a method for the prompt disposition of actions and proceedings which have no merit and in which there is no triable material issue of fact . . . .' " (italics omitted)].) A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact." (Code Civ. Proc., § 437c, subd. (c).)
Unless otherwise indicated, subsequent statutory citations refer to the Code of Civil Procedure.
A defendant seeking summary judgment bears an initial burden to produce evidence demonstrating either one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-850, 854-855.) "When a defendant moves for summary judgment on the ground there is an affirmative defense to the action, the burden shifts to the plaintiff to show there is one or more triable issues of material fact regarding the defense after the defendant meets the burden of establishing all the elements of the affirmative defense." (Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484; see Vahle v. Barwick (2001) 93 Cal.App.4th 1323, 1328 ["The plaintiff need not produce any evidence until the defendant has established every element of his or her defense."].) "The plaintiff . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto." (§ 437c, subd. (p)(2); accord, Aguilar, supra, at p. 849.) "[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.)
Whereas a burden of production entails only the presentation of evidence, a burden of persuasion entails the establishment of a requisite degree of belief by way of such evidence. (Aguilar, supra, 25 Cal.4th at p. 850.) --------
"Because summary judgment is a drastic measure that deprives the losing party of trial on the merits" (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 304), "[a]ny doubts about the propriety of granting a summary judgment motion must be resolved in favor of the party opposing the motion" (ibid.).
II. Standard of review
"[A]s the reviewing court, we determine de novo whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law." (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) "In other words, we must assume the role of the trial court and reassess the merits of the motion." (Ibid.) "In doing so, we will consider only the facts properly before the trial court at the time it ruled on the motion." (Ibid.) "We apply the same three-step analysis required of the trial court. First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond. Second, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in the moving party's favor. When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable issue of material fact." (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493-494.) "In so doing, we liberally construe the opposing party's evidence, strictly construe the moving party's evidence, and resolve all doubts in favor of the opposing party." (Id. at p. 494.)
III. Analysis
"As a general rule, persons are liable for injuries they cause others as a result of their failure to use due care." (Herrle, supra, 45 Cal.App.4th at p. 1764.) "The general duty to avoid injuring others extends to persons 'of unsound mind.' " (Gregory, supra, 59 Cal.4th at p. 1001, citing Civ. Code, §§ 41, 1714.) "The only exceptions to this rule are those created by statute or clear public policy." (Herrle, supra, at p. 1765.) "One such exception is the [primary] assumption of the risk doctrine." (Ibid.)
"Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm." (Gregory, supra, 59 Cal.4th at p. 1001.) "Primary assumption of risk cases often involve recreational activity, but the doctrine also governs claims arising from inherent occupational hazards. [Citations.] The bar against recovery in that context first developed as the 'firefighter's rule,' which precludes firefighters and police officers from suing members of the public for the conduct that makes their employment necessary. [Citations.]. . . [The Supreme Court has] viewed the firefighter's rule 'not . . . as a separate concept,' but as a variant of primary assumption of risk, 'an illustration of when it is appropriate to find that the defendant owes no duty of care.' [Citation.] Whether a duty of care is owed in a particular context depends on considerations of public policy, viewed in light of the nature of the activity and the relationship of the parties to the activity. [Citations.]" (Id. at pp. 1001-1002.)
Our Supreme Court " '[has] never held that the doctrine of assumption of risk relieves all persons of a duty of care to workers engaged in a hazardous occupation.' [Citation.] However, the doctrine does apply in favor of those who hire workers to handle a dangerous situation, in both the public and the private sectors. Such a worker, 'as a matter of fairness, should not be heard to complain of the negligence that is the cause of his or her employment. [Citations.] In effect, . . . 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.' [Citation.] This rule encourages the remediation of dangerous conditions, an important public policy. Those who hire workers to manage a hazardous situation are sheltered from liability for injuries that result from the risks that necessitated the employment." (Gregory, supra, 59 Cal.4th at p. 1002.)
At least two cases applied the primary assumption of the risk doctrine in the context of caregiving. In Herrle, Francine Herrle worked as a certified nurse's aide at a convalescent hospital, where many patients suffered from Alzheimer's disease and nurse's aides were trained on how to approach, handle, and restrain them. (Herrle, supra, 45 Cal.App.4th at pp. 1763-1764.) She "knew her job exposed her to patients suffering from mental illnesses which made them violent, combative and aggressive" and "knew of prior instances where aides were struck by patients." (Id. at p. 1764.) Helen Marshall, a patient with senile dementia and Alzheimer's disease, was described as " 'very combative at times' " in the admitting diagnosis and " 'very belligerent at times' " and a "[h]igh risk for injury" in the nursing assessment. (Id. at pp. 1763-1764.) She had even "slapped or hit several other hospital employees." (Id. at p. 1764.) One day, Marshall "became combative while another nurse's aide was moving her from a chair to a bed." (Ibid.) Fearing Marshall would fall to the floor, Herrle assisted her coworker. As Herrle was moving Marshall onto the bed, Marshall struck Herrle's jaw multiple times. (Ibid.)
Herrle sued Marshall's estate to recover damages for personal injuries. (Herrle, supra, 45 Cal.App.4th at p. 1763.) In an agreed statement of facts, the parties stipulated, inter alia, "[v]iolence is a common trait among Alzheimer's patients." (Id. at p. 1764.) Following a bench trial, the superior court ruled in favor of Marshall's estate. (Id. at p. 1763.) On appeal, Division Three of the Fourth Appellate District affirmed the judgment (id. at pp. 1763-1764), finding the primary assumption of the risk doctrine barred recovery:
"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 tendencies. . . . '[T]he 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. [¶] . . . [¶]
". . . Here, plaintiff, by the very nature of her profession, placed herself in a position where she assumed the duty to take care of patients who were potentially violent and to protect such patients from committing acts which might injure others. The danger of violence to the plaintiff was rooted in the ' " ' " 'very occasion for [her] engagement.' " ' " ' [Citations.] [¶] . . . [¶]
". . . [D]efendant, 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 limit the possibility of injury. . . . [¶] . . . [¶]
"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 patient (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. Were that view to prevail, risks most efficiently allocable to and traditionally borne by the health care industry would be shifted to individual patients and their families. Should patients be forced to purchase separate liability insurance before seeing their doctor or, as in the present case, should children do so when checking an elderly parent into a nursing home?" (Herrle, supra, at pp. 1765-1767, 1770-1771.)
Eighteen years after Herrle was decided, our Supreme Court determined "the rule that Alzheimer's patients are not liable for injuries to caregivers in institutional settings" "applies to in-home caregivers who, like their institutional counterparts, are employed specifically to assist these disabled persons." (Gregory, supra, 59 Cal.4th at p. 1000.) In Gregory, Bernard Cott contracted with a home health care agency to assist with his wife Lorraine, an 85-year-old woman with Alzheimer's disease. The agency assigned Carolyn Gregory to supervise, bathe, dress, and transport Lorraine as well as perform housework. (Ibid.) Gregory "was trained to care for Alzheimer's patients," "had done so in other assignments," and "knew [such patients] could be violent." (Ibid.) Additionally, Bernard warned her "Lorraine was combative and would bite, kick, scratch, and flail." (Ibid.) In September 2008, while Gregory was washing a large knife, Lorraine bumped into her and reached toward the sink. As Gregory was trying to restrain Lorraine, she dropped the knife and cut her wrist. (Ibid.) As a result, Gregory "lost feeling in several fingers and experienced recurring pain." (Ibid.) She subsequently sued the Cotts for negligence and premises liability, inter alia. In turn, the Cotts moved for summary judgment. The superior court granted the motion and Division Five of the Second Appellate District affirmed, holding Gregory's claims were barred by the primary assumption of the risk doctrine. (Id. at pp. 1000-1001.)
The Supreme Court affirmed the judgment. (Gregory, supra, 59 Cal.4th at pp. 1001, 1015.) It reasoned:
"As the Herrle court recognized, primary assumption of risk in its occupational aspect is readily applicable to the relationship between hired caregivers and Alzheimer's patients. It was stipulated in Herrle that violent behavior is a common symptom of the disease, and that proposition is well supported by medical texts, legal commentary, and the facts of reported cases. It follows that the risk of violent injury is inherent in the occupation of caring for Alzheimer's patients. While many such patients never become violent, it is equally true that not all fires injure firefighters, and not all dogs bite veterinarians. Nevertheless, because the risk of injury from those causes is inherent in the occupations of firefighters and veterinarians, it is settled that no duty is owed to protect them from the very dangers they are hired to confront. [Citations.] Herrle's conclusion that Alzheimer's patients owe no duty of care to protect hired caregivers from the risk of
injury has found support, and no disagreement, in other jurisdictions. [Citations.] [¶] . . . [¶]The Supreme Court emphasized its holding "does not preclude liability in situations where caregivers are not warned of a known risk, where defendants otherwise increase the level of risk beyond that inherent in providing care, or where the cause of injury is unrelated to the symptoms of the disease." (Gregory, supra, 59 Cal.4th at p. 1000.)
". . . Gregory's attempts to distinguish home health care workers from those employed in institutions are not persuasive. In each setting, caring for patients with Alzheimer's dementia is the 'nature of the activity.' Caregivers are hired to protect the patients from harming themselves or others. If a patient injures a caregiver by engaging in the combative behavior symptomatic of Alzheimer's disease, the 'particular risk of harm that caused the injury' was among the very risks the caregiver was hired to prevent. [Citations.] [¶] . . . [¶]
"We acknowledge that Gregory is not a doctor or a nurse. However, it is her occupation to care for Alzheimer's patients. We do not hold that anyone who helps with such patients assumes the risk of injury. The rule we adopt is limited to professional home health care workers who are trained and employed by an agency. . . . In any event, the important consideration is that Bernard Cott contracted with an agency that promised to provide him an aide trained to manage his wife's condition. By doing so, he paid to be relieved of a duty to protect the aide from the very risks she was retained to encounter. [Citations.]" (Gregory, supra, 59 Cal.4th at pp. 1005-1009, fns. omitted.)
At the outset, it is clear Herrle and Gregory are not directly dispositive of the issue of whether Patterson's estate produced sufficient evidence demonstrating the primary assumption of the risk doctrine negated Camp's claim. In Herrle and Gregory, the undisputed facts established (1) violent behavior is a common symptom of Alzheimer's disease; (2) the patient had Alzheimer's disease and was combative; (3) the caregiver assigned to the patient was specifically trained to care for those with Alzheimer's disease and knew such individuals could be violent; and (4) the caregiver sustained an injury when she attempted to restrain the patient, who had been acting out. By contrast, the undisputed facts in the instant case established (1) Patterson "had a tendency to sneak off and escape" and "would leave her house and walk around the block or go to a neighbor's house"; (2) Camp's primary responsibilities included "prevent[ing] . . . Patterson from wandering away and . . . ensur[ing] her safety"; and (3) Camp sustained an injury when Patterson, who had been hiding in the backyard near the gazebo, suddenly jumped out, which forced Camp to abruptly halt. Notwithstanding Camp's suspicion that Patterson "might have dementia," nothing indicated Patterson actually had Alzheimer's disease or a condition associated with violent behavior. Nothing indicated Patterson had physical altercations with Camp or was otherwise belligerent. Nothing indicated Camp was trained to care for individuals who had conditions that put her own safety at risk.
The primary assumption of the risk doctrine applies " '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.' " (Herrle, supra, 45 Cal.App.4th at p. 1765, quoting Knight v. Jewett (1992) 3 Cal.4th 296, 314-315.) Here, the "nature of the activity" was supervising an octogenarian with a proclivity for wandering away from her home to ensure she did not leave the premises. The "parties' relationship to the activity" was Camp's professional obligation to provide such supervision over Patterson. In contrast to the undisputed facts in Herrle and Gregory, which aptly demonstrated how "[t]he danger of violence to the [caregiver] was rooted in the ' " ' " 'very occasion for [her] engagement' " ' " ' " (Herrle, supra, at p. 1766), the undisputed facts in the instant case did not identify the risk of harm that was inherent in the care of a patient who wanders away from her home but has not been shown to suffer from and/or manifest violent behavior symptomatic of Alzheimer's disease or the like. Furthermore, the undisputed facts showed Camp's injury did not result from Patterson's wandering, the problem Camp was hired to prevent in the first place. At the time of the incident, Patterson did not wander away from the residential property. Instead, she hid in the backyard and waited for Camp to look for her. Once Camp was within striking distance, Patterson surprised her caregiver by suddenly jumping out. (Cf. Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538 ["The [firefighter's] rule does not apply to conduct other than that which necessitated the summoning of the firefighter or police officer, and it does not apply to independent acts of misconduct that are committed after the firefighter or police officer has arrived on the scene."].)
As noted, a defendant moving for summary judgment bears the initial burden to produce evidence demonstrating there is a complete defense to plaintiff's cause of action. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-850, 854-855.) Patterson's estate failed to do so. Accordingly, we find the superior court improperly granted summary judgment.
DISPOSITION
The judgment of the superior court is reversed and the matter is remanded for further proceedings consistent with this opinion. Costs on appeal are awarded to plaintiff and appellant Pamela Marie Camp.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SMITH, J.