A Delaware Superior Court rejects an assisted living facility's defense that a personal injury action is barred because the plaintiff had assumed the risk of living at the facility. According to the National Senior Citizens Law Center, this is the first ruling on a facility's use of "negotiated risk," which some facilities have cast as an autonomy-enhancing device that enables residents to act against medical advice. Storm v. NSL Rockland Place, LLC (Del. Super. Ct. No. 04C-01-210-JRS, Dec. 29, 2005).
A. Paul Storm, Jr. was a resident of an assisted living facility owned and operated by Rockland when he fell while alone in his room. As a result of the fall, Mr. Storm sustained brain damage and physical and neurological impairments. Mr. Storm and his wife, JoAnn, brought an action against Rockland for negligently rendering its health care services. Rockland responded that Mr. Storm had assumed the risk of his injuries when he agreed to live at the facility, and that his primary assumption of the risk acted as a complete bar to any recovery in the action.
The Delaware Superior Court rules that health care providers such as Rockland may not assert assumption of risk as an affirmative defense against actions for substandard care. The court holds that a facility could never show that a plaintiff "knowingly and expressly consented to engage in inherently risky conduct[,]" and could never "establish that the plaintiff consented to allow the healthcare provider to exercise less than ordinary care during the course of treatment." The court also notes that it would be bad public policy to allow a facility to avoid liability for rendering negligent care because the resident allegedly agreed to it.
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