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Herrle v. Estate of Marshall5/31/1996
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.
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 to violence is irrelevant to whether her claim is barred as a matter of law by primary assumption of risk, the dispositive issue herein.
Plaintiff worked at a convalescent hospital as a certified nurse's aide. The hospital had many patients suffering from Alzheimer's disease. Violence is a common trait among Alzheimer's patients. Plaintiff knew her job exposed her to patients suffering from mental illnesses which made them violent, combative and aggressive. She also knew of prior instances where aides were struck by patients. Nurse's aides received training in how to approach, handle, place in bed, and restrain patients.
Marshall was a patient suffering from senile dementia and Alzheimer's disease. She was occasionally combative and belligerent. Prior to the incident involving plaintiff, she slapped or hit several other hospital employees. The admitting diagnosis indicated "She can be very combative at times." Likewise, the nursing assessment indicated, ". . . becomes very belligerent at times. High risk for injury."
The incident resulting in plaintiff's claim occurred when Marshall became combative while another nurse's aide was moving her from a chair to a bed. Plaintiff, fearing Marshall would fall to the floor, entered the room to help. While holding Marshall and moving her onto the bed, Marshall struck plaintiff about the head several times causing serious jaw injuries.
Discussion
The Doctrine of Primary Assumption of Risk
As a general rule, persons are liable for injuries they cause others as a result of their failure to use due care. (Civ. Code, § 1714, subd. (a); Neighbarger, (supra) , 8 Cal. 4th at p. 536; Rowland v. Christian (1968) 69 Cal. 2d 108, 111-112 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) The only exceptions to this rule are those created by statute or clear public policy. (Neighbarger, (supra) , 8 Cal. 4th at p. 537; Rowland v. Christian, (supra) , 69 Cal. 2d at p. 112.)
One such exception is the assumption of the risk doctrine. Although traditionally viewed as a defense to an action for negligence, the modern doctrine of primary assumption of risk involves a situation where defendant does not owe a duty of care to plaintiff. Since such a duty of care is an element of the tort of negligence, such situations should perhaps be described as the absence of negligence. Secondary assumption of risk, on the other hand, is a defense, now merged in comparative negligence, to a negligen
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