Cott

BACKGROUND

The relevant facts are undisputed. In 2005, defendant Bernard Cott contracted with a home health care agency to assist with his 85-year-old wife and codefendant Lorraine, who had long suffered from Alzheimer‘s disease. The agency assigned plaintiff Carolyn Gregory to work in the Cotts‘ home. Gregory was trained to care for Alzheimer‘s patients, and had done so in other assignments. She knew they could be violent. Bernard told her Lorraine was combative and would bite, kick, scratch, and flail. Gregory‘s duties included supervising, bathing, dressing, and transporting Lorraine, as well as some housekeeping. In September 2008, Gregory was washing dishes while Lorraine sat at the kitchen table. Bernard was not at home. As Gregory was washing a large knife, Lorraine approached her from behind, bumped into her, and reached toward the sink. When Gregory attempted to restrain Lorraine, she dropped the knife, which struck her wrist. As a result, Gregory lost feeling in several fingers and experienced recurring pain. Gregory has received workers‘ compensation. She also sued the Cotts for negligence and premises liability, with a claim against Lorraine for battery. The trial…

Concurring. — Because Carolyn Gregory’s injuries resulted “from the very condition or hazard the defendant has contracted with [her employer] to remedy or confront” (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 542 [ 34 Cal.Rptr.2d 630 , 882 P.2d 347 ]), I agree that her claims are barred under the primary assumption of risk doctrine. (Maj. opn., ante, at p. 1009 [“[T]he 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.”].) At the same time, it should be apparent from today’s opinions that this case raises some difficult issues.

At a doctrinal level, it is not obvious that casting our holding in terms of primary assumption of risk is altogether dissimilar from a finding of summary judgment for the Cotts, on these facts, under the secondary assumption of risk doctrine. I agree that “[o]ur 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…

The question in this case is whether patients suffering from Alzheimer’s disease are liable for injuries they inflict on health care *1000 workers hired to care for them at home. Because agitation and physical aggression are common late-stage symptoms of the disease, injuries to caregivers are not unusual. California and other jurisdictions have established the rule that Alzheimer’s patients are not liable for injuries to caregivers in institutional settings. We conclude that the same rule applies to in-home caregivers who, like their institutional counterparts, are employed specifically to assist these disabled persons. It is a settled principle that those hired to manage a hazardous condition may not sue their clients for injuries caused by the very risks they were retained to confront.

This conclusion is consistent with the strong public policy against confining the disabled in institutions. 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. Our holding does not preclude liability in situations where caregivers are not warned of a…