Idaho Falls, ID – In December of 2006, Resident X was admitted to an Assisted Living Facility with a diagnosis of mild to moderate dementia, an inoperable heart condition, and other age related conditions. Shortly after he moved into the facility, ownership changed hands on January 1, 2007.
The new facility owner was doing some remodeling of the main entrance and tile work on January 17, 2007 causing the entrance to be closed and visitors to use the garage door to access the facility. The main garage door to the outside was left open and a side door provided access from the garage into the facility. This door was locked on the inside of the facility, but the door could be opened from the garage without a key. There was a sign on the door reminding users that they needed to make sure the door was closed and secure after they entered the facility.
Another resident’s family visited her on the evening of January 17, 2007. They used the garage door and were going through that door at between approximately 6:15-6:30 p.m. Resident X was seen between approximately 6:15 and 6:25 p.m. when he asked staff members for a drink of water. At approximately 6:30 p.m., the facility staff began looking for Resident X to give him his medications and get him into bed. They could not find him and began a room to room search because Resident X had a history of going into other resident’s rooms and hiding in closets. Apparently, between approximately 6:15 and 6:45 p.m. Resident X wandered from the facility. It is believed that he either went out with some of the visitors or some of the visitors left the door open and he left through the open door.
The facility faces a highway and the garage opens onto the driveway which runs directly east onto the road. It appears that Resident X crossed the road and began walking north along the east side of the pavement. He walked to the T-intersection (approximately 600 feet). It was a dark night but there is one street lamp on the southwest corner of the intersection.
A husband and wife had stopped at the stop sign at the intersection of the Highway. They saw Resident X standing across the street and could see him smiling and looking confused. The wife called to him and asked if he needed any help. Resident X began walking toward the vehicle. According to the husband and wife, he did not look either direction before he began to cross the road. The husband got out of the car and began to approach Resident X who was now also illuminated by the couple’s headlights.
The husband then saw a vehicle approaching the intersection from the north. He yelled at Resident X but he did not respond.
A Chevy Suburban driven by a teenage boy struck Resident X. The driver did not attempt to brake or take other evasive action, nor did he appear to be speeding or driving erratically. The driver stopped some distance to the south of the intersection, came back to the husband and wife and asked what he had hit. He said that he never even saw Resident X. The couple was dressed in black (as was Resident X) and they safely directed traffic in the intersection until law enforcement arrived on the scene.
No citation was issued to the driver of the Suburban. Resident X died at the scene.
According to the couple, a woman from the Assisted Living Facility came to the scene, identified Resident X, said they had been looking for him and reported that one of the doors had been left unlocked.
This is a claim by the four adult children of Resident X for wrongful death. Resident X was not providing any financial support to any of the children. Plaintiffs have not yet provided any medical bills related to the death of Resident X. He was pronounced dead at the scene but paramedics did respond.
Plaintiffs are claiming funeral expenses of $6,717.34 and loss of consortium/loss of companionship damages.
ALLEGATIONS: Resident X was a resident of an ALF where the owners knew or should have known that Resident X suffered from dementia and had a history of wandering. Defendants were negligent. The Assisted Living Facility owed a duty of care to Resident X, and breached its duty of care by, among other unnamed things, failing to supervise and otherwise provide an interior and exterior environment which was secure and safe. As a result of this misconduct, Resident X was allowed to leave the assisted living facility on the night of January 17, 2007 without supervision. Resident X then wandered onto the highway where he was struck and killed by a motorist. The ALF also violated the State Consumer Protection Act by contracting to provide assisted living care services through representations that its staff and facility was equipped to care for patients with Alzheimer’s and other forms of dementia. However, contrary to the representations, the staff and facility were not equipped to care for such patients. The non-economic damage cap does not apply because the ALF was reckless. Plaintiffs are entitled to damages including general damages, punitive damages, prejudgment interest, attorney fees and costs.
KEY FACTUAL OR LEGAL ISSUES: What are the critical issues in this matter?
Plaintiffs initially made a $1,000,000.00 demand and on June 16, 2008 reissued that demand. On July 15, 2008, the ALF offered to settle for $40,000.00 ($10,000.00 per plaintiff). We then made a separate offer to settle. On October 29, 2008, plaintiffs countered at $800,000.00.
DON’T WONDER…ABOUT WANDERERS
Residents can and do wander from their communities. Often times with a properly implemented and practiced Elopement Protocol, Policy and Procedures, incidents of wandering can be reduced and some eliminated. Not every case of wandering results in a fatality; however, as you can see from this incident, this was not only a fatality for the family as a result of losing a loved one, but also could be a financial fatality for the assisted living facility if they did not have adequate insurance protection. Even with adequate insurance protection, if an incident hits the media, you could suffer the effects of loss of existing residents as well as potential new residents.
To learn how you can take steps to control elopements in your community and/or minimizing the loss resulting from the media, log onto our website at www.pcalic.com, after logging in using your username and password, look under PCH Mutual Loss Control (Left-hand side) for “Elopement and Wandering”.