Wednesday, April 17, 2013

Occupational Assumption of the Risk

Can an employee assume the risks associated with the job and thus lose the ability to sue a third-party for an injury?  That's what a California Court of Appeal concluded in Gregory v. Cott.  And now the California Supreme Court has decided to review the decision. 

Ms. Gregory worked as a caregiver for a home care agency.  Mr. Cott contracted with the agency to provide a caregiver for his wife who suffered from Alzheimer's.  Mr. Cott told the agency that his wife would bite, kick, hit and scratch. 

Ms. Cott tried to grab a knife from Ms. Gregory as she was washing it.  Ms. Cott cut Ms. Gregory who suffered serious injury.  Ms. Gregory sued the Cotts for the injuries inflicted upon her.

Assumption of the risk is a concept in recreational cases.  The question is whether the person engaging in a recreation, such as skiing, assumes the risks associated with skiing, such as injuries when falling.  The assumption of the risk doctrine has been applied some work settings.  The "fireman's rule" was adopted that prevents a firefighter from suing the public when injured in the line of duty. 

The occupational assumption of the risk doctrine was applied to a worker who cared for an Alzheimer's patient confined to a facility in Herle v. Estate of Marshall (1996) 45 Cal.App.4th 1761.  In Gregory v. Cott, the court concluded that the same occupational assumption of the risk doctrine should apply regardless of the patients' location.  Sounds logical.  Why should a defendant be subject to liability for hiring someone to prevent the very harm that occurred. 

Now the Supreme Court is in the fray.  This will be a critical issue for the home care industry.  It is a vital issue for those who invite caregivers into their homes and who could lose their assets or estates in defending these types of lawsuits. 

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