Sanders v. Alger (CA2 6/16/16)


The court holds that a patient has a duty to care for his caregivers.

Defendant was a 70-year-old man who used a wheelchair. The Department of Economic Security provided in-home care services to him through an independent contractor who was, in the Department’s infinite wisdom, a sixty-year-old woman. The result was that when he fell getting out of the wheelchair she couldn’t hold him; he fell on her, injuring her. She sued him. The trial court granted him summary judgment; she appealed.

The Court of Appeals reverses. Defendant argued the firefighter’s rule – a rescuer doing his duty has no claim. The court holds that the rule applies only to “traditional first responders.” That’s because people who cause fires shouldn’t be afraid of calling for help since fires spread; whereas, apparently, its fine for people who can’t get out of  wheelchairs to be afraid of calling for help since they’re the only ones who will suffer. And its because the firefighter’s rule rests on a policy decision to free from liability people who negligently cause fires (you think that’s not what it says? Read paragraph 9) whereas falls often happen without negligence and so Plaintiff knew there was a risk of falls and so she can sue for one (ditto re paragraph 9). And its because firefighters’ training, equipment, and compensation – including provisions for their care when injured – are given them “in return for” the removal of their right to sue (paragraph 10). This last reason at least has the advantage of applying also to “traditional first responders” other than firefighters, though we frankly hadn’t known before that they get training, pay, and benefits as the result of a quirk in the law of torts.

(Oh, by the way – the state did give Plaintiff training and does have a program to compensate caregivers for injuries and this plaintiff’s injuries are covered by that program. But the record was “sparse” about how those things compare to what is given to firefighters and to other caregivers. Regardless of who had the burden of going forward on that, the court does not tell us what standard of comparison it would apply if the record were fuller.)

The court then holds that Defendant owed a duty to Plaintiff. Although Plaintiff contracted to provide care to Defendant, a contract clause relieving a party from liability amounts to an assumption of risk and so that must go to the jury and so there must, apparently, be a duty to give rise to a defense to duty. (There wasn’t such a clause here and Defendant wasn’t a party to the contract; perhaps it was the fault of the briefs, and not of the court, that this tort analysis is based – but for one brief footnote – on contract and that the discussion of duty never mentions the legal basis of duty.) And besides, parties cannot in their contracts regulate their duties to each other. The court presumably means this in a very restricted sense, as this will otherwise come as a surprise to many parties who think they have done just that, or who think that their contract contains, for example, an arbitration clause, or that the arbitrators – despite what they, the parties, or the AAA might say – are not bound by the strict provisions of the common law.

Another reason for imposing a duty of care is that if there weren’t one then a defendant wouldn’t be liable for gross negligence. The court does not explain how the degree of negligence can affect whether a duty – and therefore negligence – exist in the first place.

Defendant also moved for summary judgment on the facts. The trial court, since it ruled as a matter of law, didn’t reach that. The Court of Appeals for some reason discusses the facts before announcing that the subject is for remand.

(Opinion: Sanders v. Alger)