Acknowledging that agitation and physical aggression are common late-stage symptoms of Alzheimer’s disease, that injuries to caregivers are not unusual, and that California and other jurisdictions had previously established the rule that Alzheimer’s patients were not liable for injuries to caregivers in institutional settings, the California Supreme Court yesterday extended that rule to in-home caregivers [see Gregory v. Cott, 2014 Cal. LEXIS 5460 (Aug. 4, 2014)]. Drawing an analogy to the “veterinarian’s rule,” which generally bars a kennel employee, on assumption of the risk grounds, from recovering in tort from the owner of the dog that bites the employee, the majority of the high court ruled the caregiver’s action should also be barred.
Delivering the majority opinion, Justice Corrigan indicated that the veterinarian’s rule was itself an extension of the “Firefighter’s Rule,” which prevents firefighters and other emergency personnel from recovering in tort from those responsible for the fire or other hazard [see Larson’s Workers’ Compensation Law, § 110.08]. The majority added that while many Alzheimer’s 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. The same rule should apply to in-home caregivers. The majority said that after weighing the public policies involved, it agreed with those sister-state jurisdictions that had concluded that workers’ compensation, rather than tort recovery, was the appropriate means of compensating hired caregivers for injuries caused by Alzheimer’s patients. The majority indicated that its conclusion was consistent with the strong public policy against confining the disabled in institutions. The majority reasoned that if liability were imposed for caregiver injuries in private homes, but not in hospitals or nursing homes, the incentive for families to institutionalize Alzheimer’s sufferers would increase. The majority stressed that its holding did not preclude liability in situations where caregivers were not warned of a known risk, where defendants otherwise increased the level of risk beyond that inherent in providing care, or where the cause of injury was unrelated to the symptoms of the disease.
Justice Rubin, joined by Justice Werdegar, dissented. Indicating that “[t]his is a hard case involving sad facts,” the justice did not “quarrel with the moral blamelessness of the defendants, but one of them, the patient’s husband, was the competent decision maker who chose in-home care for his ailing wife. The justice indicated that tort law should align incentives with the consequences of the decisions one makes. Thus, when a family considers the suitability of in-home care for a member suffering from Alzheimer’s disease, the law should encourage family members like Mr. Cott to weigh the benefits of in-home care against the costs it may impose on others. The justice said the question the case presented was who ought to bear the cost when that decision goes awry? Justice Rubin argued that the majority answered that the in-home caregiver should. Justice Rubin indicated that that neither the facts nor public policy supported making in-home caregivers another category of worker, joining firefighters, police officers, and veterinarians, who suffer an unusual restriction, “in the guise of primary assumption of risk,” of their right to recover from third parties for on-the-job injuries.