Key Decisions

February 2013 – Primary Assumption Of The Risk Applies To Alzheimer’s Caregivers

(filed under: Key Decisions Archive | February 22, 2013)

Primary Assumption Of The Risk Applies To Alzheimer’s Caregivers

Gregory v. Cott
(Cal. Ct. of App., 2d Dist.), filed January 28, 2013


Bernard Cott contracted with a home care agency to provide an in-home caregiver for his wife, defendant Lorraine Cott, who suffered from Alzheimer’s disease, was combative, and prone to violent outbursts.

The agency sent Carolyn Gregory to be the in-home caregiver.  Gregory said that she had training in dealing with clients suffering from Alzheimer’s disease and had provided services for Alzheimer’s patients in the past.  When Gregory started working for the Cotts, she was aware that Lorraine had Alzheimer’s and knew that Alzheimer’s patients could become violent.  She understood that one of her duties in dealing with Alzheimer’s patients was to provide “constant supervision for [the] protection [of] . . . patients, family members, [and] the caregiver.”  She had been injured by an Alzheimer’s patient in the past.

Bernard informed Gregory at the outset that Lorraine was combative and engaged in “biting, kicking, scratching, [and arm] flailing.”  As time went on and as Lorraine’s disease progressed, she became “more combative physically.”

Lorraine injured Gregory, who sued Lorraine for battery and Lorraine and Bernard for negligence and premises liability.

The Cotts moved for summary judgment based on the doctrine of primary assumption of the risk.  The trial court granted the motion.


The Court of Appeal affirmed.  It found that the doctrine applied to caregivers for Alzheimer’s patients.

As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their willful or negligent conduct injures another person.  There are exceptions to this rule based on statute or public policy.  One exception is the doctrine of primary assumption of risk, which bars recovery based on policy factors involving of the nature of the activity involved and the parties’ relationship to the activity.

The doctrine is most often applied to sporting activities in which there is an inherent risk of injury, and eliminating the risk would change the activity’s entire nature.  It is also applicable to other recreational activities where there is an inherent risk of injury, and eliminating the risk would change the activity’s entire nature.

The California Supreme Court has not disapproved extending the doctrine to activities outside of sports and recreational activities.  Although, it has said that the doctrine does not apply to every activity in which there is an inherent risk of injury.

In view of the foregoing, the court found that the primary assumption of risk doctrine can be applied to those whose occupation is caring for Alzheimer’s patients, since some patients can pose physical risks of injury.  The court based its decision on the fact that it is consistent with decisions from other jurisdictions, and is supported by California law holding that a caregiver in an in-patient facility is subject to the doctrine.

It also noted the public policy behind applying the doctrine to Alzheimer’s patients.  The court noted that according to the Yale Law Journal, “Tort law should not impose unnecessary burdens upon the mentally disabled who seek appropriate and necessary care.”  And, it observed:  “Caretakers generally may look to other sources of available compensation rather than to the victim of a debilitating disease or to a spouse who has undertaken to care for the Alzheimer’s patient at home and must endure the patient’s misfortune.”


A very strong dissenting opinion, again, demonstrates the challenges inherent in applying primary assumption of the risk.