HOW DO CLAIMS AGAINST ASSISTED LIVING FACILITIES WORK?
Assisted Living LawsuitsThe decision to enter an assisted living facility is never an easy choice. Trusting your own care or the care of a loved one to others involves a huge leap of faith. When that trust is breached, the law can provide remedies for the injuries suffered. Below is a brief overview of what types of injuries arising from assisted living facilities are actionable and how liability is established for each.
Negligence: When an individual suffers injury due to the carelessness of an assisted living employee, the injured party likely has a claim for negligence. The key for any negligence claim is establishing that someone breached a legal duty owed to the resident. This is a much simpler task that it may seem at first blush. Generally, every employee of the assisted living facility owes a duty to residents they interact with to conduct their work in a reasonable manner. For example, if an employee failed to look out while carrying a ladder and struck a resident, that employee has not acted reasonably and therefore breached a legal duty. Additionally, under negligence, the assisted living facility will also be liable for injuries caused by its employees. This rule makes sense, as employers—like any entity—can only act through its agents. Therefore, as long as the employee is acting to benefit the facility when careless, the facility is liable for the injuries caused along with the employee. This is known as acting within the “course and scope of employment.” It can be very important to establish this fact to ensure that money is actually available to compensate for injuries suffered.
Negligence Per SeNegligence per se is a specific type of negligence claim. This type of claim is established by showing that the assisted living facility violated a statute or regulation and this violation caused the injury to the plaintiff. So long as the plaintiff is the type of person the violated law was designed to protect, the plaintiff has a claim for negligence per se. These types of claims can be especially useful against assisted living facilities, because they are highly regulated by statutes and regulations. For example, Chapter 39, Article 9 of the Kansas statutes deals entirely with “adult care homes,” including assisted living facilities. These laws cover a vast amount of conduct. Everything from ensuring the facility only cares for residents that suffer from physical conditions the facility can handle—Section 39-939—to ensuring the facility has a valid license and maintains it—Section 39-926—is covered.
The key to establishing a negligence per se claim is ensuring that the violated law was intended to prevent the type of harm that occurred. For example, Kansas law prohibits a facility from allowing a resident to stay in “any unapproved room, area, or detached building.” This statute is to prevent a resident from being injured by an insufficient room. If an individual was housed in a closet—a clearly inappropriate and unapproved room—and was injured by being given the wrong medication, negligence per se could not provide liability. Though the facility violated the statute, the claim would fail because the statute was not meant to protect residents from incorrect medications and the violation of that statute did not cause the injury.
Premise LiabilityAssisted living facilities owe a duty to provide a safe place for residents to live. When a facility fails to live up to this duty, the injured individual can bring a negligence claim based on dangerous conditions of the property: a premise liability claim. These types of claims can come from a variety of property defects, such as failing to clean up a spilled drink (a slip-and-fall-type accident), failure to maintain sidewalks or hallways in good repair (a traditional premise liability claim), or even failing to protect against foreseeable criminal acts by third-parties. For example, if a facility failed to provide locks on any doors or staff security at night, the facility would likely be liable for any harm caused to a resident by a burglar. Determining if a facility did enough to prevent criminal acts or if the facility was negligent in repairing or not addressing a premise defect is an extremely fact-specific inquiry. Thus, it is extremely important to contact a competent, experienced lawyer when an injury has occurred due to neglecting a responsibility of a land owner to determine if an actionable dangerous defect existed.
Negligent HiringOne final way in which liability can attach to a personal injury is through a claim of negligent hiring. An assisted living facility is responsible for hiring competent, capable employees. This responsibility extends to all employees, from those that maintain the building to those that provide care to residents. When the facility fails to properly vet potential employees and an employee causes harm to a resident, the facility will be liable for those injuries. It’s important to contrast liability for negligent hiring and liability for acts within the course and scope of the employment. Negligent hiring is a wrong done by the facility, and though the harm is done by an employee, it is against the benefits or wishes of the company. For example, an employee might have a history of angry episodes and outbursts. If the facility hires the employee despite knowing of this history and that employee has such an outburst, striking a resident, the facility’s wrong also caused the harm. Therefore, the employer is responsible for one wrong (negligently hiring the employee), while the employee is liable for another wrong (battery). Because of this, a claim for negligent hiring will almost always be accompanied by a claim against the employee that was negligently hired.
Going into assisted living is a difficult decision. However, the law seeks to ensure that residents of an assisted living facility feel safe in making this difficult decision. If a resident is injured by the acts of the facility or the facility’s employee, it is extremely important to contact capable legal counsel quickly to ensure those injuries can be properly redressed.