Herrle

Francine Herrle sued the Estate of Helen I. Marshall, deceased, under former Probate Code section 707 (see now Prob. Code, §§ 550 et seq. and 9390) to recover damages for personal injuries. She suffered these injuries when she was struck by Marshall, a patient suffering dementia, at the hospital where plaintiff was employed. Constitution State Service Company, the workers’ compensation carrier for plaintiff’s employer, intervened, seeking recovery for benefits it paid on her behalf. After a bench trial, the court ruled for defendant. We conclude the primary *1764 assumption of the risk doctrine bars recovery under these circumstances and therefore affirm the trial court’s judgment.

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…

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 modem 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…

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 Probate Code section 707 (see now Prob. Code, §§ 550 et seq. and 9390) to recover damages for personal injuries. She suffered these injuries when she was struck by Marshall, a patient suffering dementia, at the hospital where plaintiff was employed. Constitution State Service Company, the workers' compensation carrier for plaintiff's employer, intervened, seeking recovery for benefits it paid on her behalf. After a bench trial, the court ruled for defendant. We conclude the primary assumption of the risk doctrine bars recovery under these circumstances and therefore affirm the trial court's judgment.

The case was tried on an agreed statement of facts…