April 10, 2013. In Gregory v. Cott (2013) Cal.App.4th 41 (rev. granted 4/10, S209125)Gregory, an in-home caregiver for an Alzheimer’s patient was injured when the patient lunged at her. The Second Appellate District, Division Five, upheld the trial court’s conclusion that primary assumption of the risk barred a caregiver’s claims for injuries against the patient and her husband. In concluding that the risk of injury caused by the patient was inherent in the job, the two justice majority relied in large part on Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761. In Herrle, the court of appeal concluded that primary assumption of the risk barred the claim of nurse’s aide injured by an Alzheimer’s patient while working in a convalescent home. The two justice Gregory majority rejected the appellant’s argument that the in-home care setting materially distinguished the case from Herrle. The dissenting justice believed Herrle was wrongly decided and, even if it was correctly decided, it would not apply to in-home care giving settings. It is worth noting that Herrle was a majority opinion as well. The Supreme Court granted review to answer the issue of whether primary assumption of the risk applies to in-home caregiver’s injured by Alzheimer patients for whom they are caring. Daley & Heft partner Lee Roistacher said, “It will be interesting to see if the Supreme Court limits its opinion to the specific situation presented or whether it chooses this case to express a broader rule regarding primary assumption of the risk in the context of employment.” This is yet another possible extension of the seminal case of Knight v. Jewett, a case argued by one of the Daley & Heft founders, Dennis Daley.
