By Kelly Caplan
BridgeTower Media Newswires
DETROIT—Where an elderly resident of an unlicensed independent living facility wandered outside in subzero temperatures and later died from related injuries, defendants were properly granted summary disposition in a negligence suit because they did not owe the decedent a common-law duty of care, a Court of Appeals panel has ruled.
The plaintiff argued there was an issue of material fact as to whether the decedent’s injury was foreseeable.
The panel disagreed and affirmed the Oakland Circuit Court’s decision.
“Considering the facts in the light most favorable to plaintiff, defendants did not, under the circumstances of this case, have a duty to prevent the injuries suffered by [the decedent] because [the decedent’s] injury was not foreseeable,” the panel stated.
The unpublished per curiam opinion, Estate of Kermath v. Independence Village of Oxford LLC was issued by Judges Michael J. Riordan, David H. Sawyer, and Kathleen Jansen.
Donna M. MacKenzie, counsel for the plaintiff, said the decision is being appealed.
“The decision is directly contrary to the Washnock [v. Brookdale Senior Living, Inc.], case, where a federal court judge recognized that there is a fundamental distinction between residents in assisted living facilities and those in traditional landlord/tenant relationships,” said MacKenzie of Olsman, MacKenzie, Peacock, & Wallace in Berkley.
“Senior living facilities market their services directly to these vulnerable adults and claim to be safe environments for seniors,” she added. “The Kermath decision exposes vulnerable adults to an unreasonable risk of harm in senior housing facilities.”
Karen E. Beach, counsel for defendant Independence Village of Oxford, did not respond before deadline.
In 2009, Virginia Kermath was diagnosed with dementia, and in 2010 moved into Independence Village, a non-licensed independent-living facility in Oxford.
The facility is split in two sections, labeled “Harbors” and “Independent.” Harbors offers an enhanced-living and “higher level of care section,” which includes a registered nurse and group of caregivers, and other services not offered to residents in Independent.
Residents of Independent, where Kermath leased her first-floor apartment, can opt to pay for additional services through an independent third-party contractor. Kermath’s lease did not specify any additional services.
In July 2010, Cosette Rowland, on behalf of Kermath, entered into an agreement with Senior Home Care Solutions, a company that provides residents of Independence Village with “independent subcontracted care” so that Kermath would get additional services, including assistance with medications and meals.
That agreement was later terminated by Rowland after Kermath was given the wrong medication, according to the COA opinion. Rowland then contacted Octavia Jones, a third-party caregiver, who worked with Kermath seven days a week.
Kermath’s condition deteriorated, and it was decided that Kermath should move into Rowland’s home. Kermath was expected to move in with Rowland in February 2014.
In December 2013, Jones helped Kermath into bed before leaving for the night. Jones returned the following morning, and found Kermath standing outside of Independence Village, without her keys, and wearing only a nightgown in temperatures of 5 degrees. Kermath suffered from hypothermia and frostbite, which contributed to her death a few weeks later.
The panel first examined whether the decedent’s injury was foreseeable, focusing on what risks a reasonable person, under the circumstances, would have foreseen.
Whether an injury is foreseeable “depends upon whether a reasonable person ‘could anticipate that a given event might occur under certain conditions,”’ the panel said, citing Composto v Albrecht (2019). “Foreseeability is a question of fact, requiring an objective test that focuses on ‘what risks the reasonable participant, under the circumstances, would have foreseen.’”
The front-door entrance to Independence Village is locked at 8 p.m. and is unlocked at 7 a.m. While receptionists were at the front-door entrance until 11 p.m., there was no way to ensure residents did not leave the building after that time as there was no alarm system that would have notified the front desk that a side-exterior door had been opened.
The question, the panel continued, is “whether there is a genuine issue of material fact as to whether it was reasonably foreseeable that a resident living in the Independent section of Independence Village would suffer from life-threatening injuries because he or she is unable to reenter Independence Village after walking outside a side-exterior door in the early morning hours in December. The focus is on what risks a reasonable person, under the circumstances, would have foreseen.”
The plaintiff argued that the decedent’s injuries were “reasonably foreseeable because defendants operate a residential facility for seniors, who are at a higher risk of elopement and diminished mental capabilities,” the panel began. “Plaintiff asserts that it was impossible for defendants to not know that their residents required additional care and supervision.”
The panel was not persuaded, and pointed to a distinction between types of facilities.
“Independence Village is an independent senior-living facility; it is not an assisted-living facility,” the panel explained. “As a resident of the Independent section of Independence Village, [the decedent] was entitled to a continental breakfast and dinner, biweekly housekeeping, and laundry for linens. Because residents of Independent were presumed to be capable of living independently, there was no need to monitor all of the side-exterior exits to the building.”
The panel then turned to the plaintiff’s argument that defendants “were aware or should have been aware” that the decedent suffered a diminished mental state and was likely to wander outside.
The panel noted that employees of Independence Village put Rowland in contact with Senior Home Care Services as well as Octavia Jones, stating that defendants were at least aware that Kermath was in a “more fragile state.”
“However, there is no evidence that shows that defendants were specifically aware of Virginia’s dementia or declining mental health,” the panel said. “Moreover, defendants had no notice that Virginia might wander outside the building.”
Further, the panel noted that Rowland and Kermath’s son testified they “never expected” the decedent to wander outside like she did.
“Although the circumstances of this case are unfortunate, the trial court did not err in concluding that Virginia’s harm was not foreseeable, and thus no genuine issue of material fact remained on the issue of foreseeability,” the panel said.
Finally, the panel examined whether there was a special relationship between the defendants and the decedent, finding there was not.
“Plaintiff provides no evidence demonstrating that Virginia entrusted herself to defendants’ control and protection, or that Virginia relinquished any control to protect herself,” the panel said.
“Accordingly, there is no genuine issue of material fact as to whether a special relationship between defendants and Virginia existed.”
Even if a special relationship did exist between the defendants and Kermath, the panel concluded, “defendants did not have a duty to protect Virginia from an unforeseeable risk.”
MacKenzie noted that residents of senior living facilities have their homes there because they must.
“Whether because of their age or physical or mental condition, they have been forced to give up their conventional home,” she said. “These residents turn to senior living facilities for protection from the ordinary risks of everyday life associated with the steady decline in their own abilities to live in a conventional home.”
MacKenzie said the idea that it was not foreseeable the decedent could elope is a farce. She added that, according to the Alzheimer’s Association, approximately 60 percent of people with dementia will wander at some point.
“In Ms. Kermath’s case, it was known that she had dementia,” MacKenzie explained. “Wandering is a common symptom that often develops in dementia and can lead a resident to leave their home or facility, which is a term known as elopement. This is a well-known phenomenon in the senior living industry.”
MacKenzie further stated that the decedent had been found wandering at the facility in the past.
“The senior living staff testified that it was their job to keep the residents from wandering away from the facility,” she said. “These facts show that this incident was certainly foreseeable.”
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