Bernard Cott contracted with a home health care agency to assist with his 85-year-old wife and codefendant Lorraine Cott, 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 for this injury. She also sued the Cotts for negligence and premises liability, with a claim against Lorraine for battery. The trial court granted a defense motion for summary judgment. A divided Court of Appeal affirmed, holding that Gregory’s claims were barred by the primary assumption of risk doctrine. The California Supreme Court affirmed the judgment in the case of Gregory v. Cott.

The question in this case is whether patients suffering from Alzheimer’s disease are liable for injuries they inflict on health care 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. The California Supreme Court concluded 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 known risk, where defendants otherwise increase the level of risk beyond that inherent in providing care, or where the cause of injury is unrelated to the symptoms of the disease.”

“As a general matter, Alzheimer’s patients and their families are liable under Civil Code section 41 for the injuries they inflict. Our holding bars recovery by only one class of plaintiffs: those employed to care for the patient. We also note that institutionalization is not an effective solution to the problem of injury to caregivers in general; as we have seen, it is not uncommon for Alzheimer’s patients to injure employees in institutions.”

“After weighing the public policies involved, we agree with those sister-state jurisdictions which have concluded that workers’ compensation, rather than tort recovery, is the appropriate means of compensating hired caregivers for injuries caused by Alzheimer’s patients.”

The dissenting opinion noted that “This is a hard case involving sad facts.” The dissent went on to point out several situations in which a caregiver will not be covered by workers’ compensation, and primary assumption of risk will bar any recovery for injuries of the type Gregory suffered, thus denying the caregiver any remedy for those injuries. Workers’ Compensation may not be available when there is no workers’ compensation insurance, or when the injured person is an independent contractor. “Under today’s ruling, the agency-provided home caregiver who is an independent contractor is barred from suing for injuries under the primary assumption of risk, and pursuant to long established principles he or she is denied workers’ compensation benefits as well.”