THIS OPINION HAS BEEN VACATED

Yet another case involving a long-term care facility.

Plaintiff’s decedent was an elderly patient in Defendants’ care following successful tumor surgery at another hospital. She died in Manor Care of sepsis caused by a number of underlying problems.  Plaintiff’s claims included a count under the Adult Protective Services Act. Defendants obtained summary judgment on that, arguing that the decedent’s age and status had nothing to do with it, that this was at best a malpractice case and not one involving neglect or abuse of a vulnerable person. They also moved for summary judgment on the malpractice claim, though, and the trial court apparently granted it, for reasons not given in the opinion. (The opinion says that “the motion for summary judgment . . . sought dismissal” of the claim and that the claim was “dismissed”, so its not clear what happened nor that the Court of Appeals knows there’s a difference.) Plaintiff appealed.

Defendants’ first argument on appeal was that the judgment on the malpractice claim barred appeal of other negligence claims because of claim preclusion. Yes, you read that right: an issue lost in the trial court couldn’t be appealed because, you see, losing it made it res judicata. Plaintiff must have pointed out that res judicata applies to successive cases because Defendants then cited, as “supplemental authority”, cases holding that it can, too, apply in the same case – when judgment for an agent bars a vicarious claim against the principal.  The court holds that that doesn’t apply here. (We don’t understand why courts continue to allow “supplemental authority” to mean “old cases you wish you’d cited now that you see what your opponent as to say.”)

On the substantive claim the court relies on McGill (2002), which concluded that the statute wasn’t intended to apply to negligence that could happen to anyone, incapacitated or not. It set forth the elements of the claim, including that the negligence “must be related to the problem or problems that caused the incapacity.” The court, reviewing the record, decides, apparently, that there was a question of fact as to whether the decedent could have or would have gotten adequate care for her sepsis if she hadn’t been incapacitated by her tumor surgery, or something along those lines. From what the court tells us of the facts there may indeed be a statutory claim here separate from plain negligence but the court’s discussion doesn’t do much to explain the distinction nor how the McGill factor survives this sort of analysis. In any event, reversed and remanded.

We recently praised Newman for minimizing the use of “APSA.” Delgado uses the acronym 19 times, so its author either hadn’t read our blog or else had and was expressing an opinion of it.

Those who like acronyms also tend to like footnotes; their use here is liberal, with the usual degree of precision. One footnote briefly mentions, for example, that the decedent had been hospitalized for tumor surgery; another tells us (we think, it’s not clear) that the trial court gave some sort of judgment on the negligence claim. Its nice that the opinion mentions, at least in footnotes, the basis of Defendants’ two arguments. And a footnote tells us that the court won’t address Defendants’ claim that Plaintiff hadn’t shown “neglect” because “establishing such a claim is unnecessary to render the grant of summary judgment improper.” What does this obscure double-negative mean? That neglect isn’t necessary? That the evidence raised a question of the other statutory possibilities, “abuse” or “exploitation”? That the summary judgment was on the “incapacitated” issue and that the “neglect” issue is somehow not properly presented? Or does it have a perfectly logical and reasonable meaning that suffers only from not being expressed in English?

The acronym/footnote folks are also commonly affected by shiny-new-toy syndrome. The opinion tells us (in a footnote, naturally) that “claim preclusion” means “res judicata” and that it will use the former, “more modern” term. We wonder how many more decades will pass before those who like the term realize that they must either declare victory or admit defeat. Using a newer term that they (accurately) feel they must for clarity’s sake, after many years, still  define using an older term is just silly. Use one or the other, kids. As for which to use, what we said here still applies.

(Opinion: Delgado v. Manor Care)

THIS OPINION HAS BEEN VACATED IN LARGE PART

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)

This case principally presents an issue of probate limitations. We will skip other, less important or case-specific, issues. We also skip an issue that the court, after addressing it in a lengthy footnote, announces that “we will not address.”

Felger flipped commercial properties; Plaintiff financed his operations. Felger eventually died but his son-in-law took over the business. When Plaintiff stopped getting certain payments owed her she looked into the matter and discovered documents allegedly showing that Felger had not acted properly. She sued his estate, four years after his death, for breach of contract and a number of torts. The estate moved for summary judgment on the statute of limitations; the trial court granted it. Plaintiff appealed; the Court of Appeals affirms.

14-3803A says that claims “that arose before death” must be presented in two years plus the time for notice to creditors. 14-3803C sets a four-month limit for claims arising after death. “As argued by the parties and addressed by the trial court, the issue here is: Which subsection of §14-3803 applies.” Plaintiff argued for the discovery rule,  contending that C applies because she found the smoking-gun documents, and thereby discovered her claim, after the death and less than four months before suit. But the court explains that a time limit for creditors’ claims is a “nonclaim statute” rather than a statute of limitations; the discovery rule can’t apply because a nonclaim statute can’t be tolled or waived. We’re frankly not sure we were aware that the discovery rule is based on tolling or waiver.

The court also says that the discovery rule can apply to statutes of limitations because they say “accrue” but not to nonclaim statutes because they say “arise.” “Accrue” means “when one party is able to sue another”; “arise . . . refers to the decedent’s act or conduct upon which a claim is based.” Well, umm, okay, if you say so.

Plaintiff argued that “a claim is not actionable until all the elements of the claim exist.” That may seem part and parcel of a discovery-rule argument but it didn’t to the court. Plaintiff’s counsel apparently said it at oral argument, in the context of explaining that the element of damages couldn’t be determined until Plaintiff saw the documents. Because it wasn’t in the briefs the court declines to consider what it calls the “’elements’ argument.” Based on what’s in the opinion the argument may be wrong – it’s the knowledge that damages exist that’s the trigger, not the ability to calculate them, and Plaintiff had known for a few years that she hadn’t received some payments. But there may be more to it than that, otherwise we don’t know why the court would seize on such a restrictive interpretation of a rule its normally pretty lenient about.

Plaintiff argued that she had in part specifically alleged torts by the estate after Felger’s death, therefore 3803C applies at least to those claims. The court says that Plaintiff “misapprehends the concept of a decedent’s estate.” An estate is a “collection of . . . assets” that “cannot ‘act.’” So for post-death acts you have to sue the PR or the persons who committed the acts (which Plaintiff had apparently also done) and the estate isn’t liable for them.

(Put aside whether that’s right or wrong. We don’t know why courts must, every once in a while, indulge in the practice of gratuitously insulting the lawyers before them. To rule on the accuracy of an argument is one thing; that’s the court’s job. But to tell the world, and the lawyer’s client, that the lawyer doesn’t understand the law is quite another. Judges at the trial-court level who can’t do their jobs without announcing their own superiority and demeaning others aren’t respected; why should appellate opinions be held to a different standard? Experience, if nothing else, should have solved this problem: judges who pronounce the other guy the dummy turn out to be right about half the time. We hope it wasn’t a judge who wrote that line; we know it was a judge who should have edited it out.)

So, 14-3803A applies. But no PR was appointed, so no notice to creditors was sent or published. Since the 3803A period includes the time for notice to creditors, how do you figure it when there wasn’t one? The court agrees with the trial court that the answer is 14-3108, which says that probate can’t occur after two years (with inapplicable exceptions); that’s the “ultimate time limit” (the statute’s heading says that). Plaintiff cited Estate of Winn, in which the Supreme Court allowed a late-appointed PR to pursue a tort claim because the law is “intended to protect the decedent’s successors and creditors. The court distinguishes that case because it was the defendant there – not a successor or creditor – who wanted to invoke the time limitation. Although Plaintiff was a creditor the court explains that creditors are entitled only to timely claims, which is why Plaintiff’s is untimely. And if it seems to you that that doesn’t necessarily follow logically, you’re an idiot and your parents should be embarrassed.

(Opinion: Ader v. Estate of Felger)