The Ties That Bind: Tortfeasors and Family-Provided Care

The
Ties
Bind
That
Tortfeasors and Family-Provided Care
BY VENERANDA J. AGUIRRE
18 A R I Z O N A AT T O R N E Y M AY 2 0 1 0 w w w. m y a z b a r. o r g / A Z A t t o r n e y

You are sitting at your desk when your
phone rings. A woman on the other end of
the line is seeking help for a loved one. Can
they come in and see you? You set up an
appointment and, days later, the woman
wheels a man into your office. He wants to
sue the City to recover his medical expenses.
He’s not out for blood, he says. It’s just that
someone failed to do their job properly, and
he took the fall, literally.
The man describes how he was hit by
falling debris from a municipal building construction
project three stories above. He was
badly injured by the debris and the subsequent
fall, leaving him in a wheelchair for an
unknown amount of time. Months have
passed as he convalesced at the hands of his
devoted family caretaker. Now, they both are
here to discuss recovery. He has medical bills
but no long-term nursing care, as his family
caretaker has assumed the role. She did so
without any thought of compensation, missing
weeks of work, just to see to all his needs.
Is there any way, the man asks, that they
can recover something for all the time this
woman has cared for him, taken him to every
doctor’s appointment, measured out his
medicine, even helped him in and out of the
bath?
Arizona Law
A review of Arizona case law yields three cases
with similar results—but divergent theories.
In City of Tucson v. Holliday, 1 the Arizona
Court of Appeals ruled that a plaintiff should
be compensated by the defendant for the
gratuitous care she received from a family
member based on the plaintiff’s duty to
repay the favor to the gratuitous caretaker,
and thus the defendant’s duty to reimburse
the plaintiff for those same expenses.
In Lopez v. Safeway Stores, Inc., 2 the
Arizona Court of Appeals instead found that
the fact that medical care was bestowed upon
the plaintiff for free did not alleviate the
defendant from paying for such care, and that
the value of the care acted as a measure of
damages for which the defendant must compensate
the plaintiff.
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In Carbajal v. Indus. Comm., 3 the
Arizona Supreme Court, in looking at the
narrow issue of workers’ compensation laws,
found that it was the nature of the services
provided, not the identity of the service
provider, that mattered.
The plaintiff in Holliday suffered various
injuries when she wedged her shoe in a hole
in a pedestrian crosswalk, created six months
earlier by negligent municipal workers. On
appeal, the court examined a trial jury
instruction permitting the jury to award
compensation for the reasonable value of
services rendered to the plaintiff by her sister
during her convalescence, even though the
sister was never paid by the plaintiff for the
services rendered. 4 The court approved of
the recovery for the reasonable value of nursing
care or services given to a plaintiff by a
friend or relative without expectation of
repayment. As the court reasoned:
It is a well-known fact that persons wear
out their “welcome” with friends and
even with relatives, unless favors are
returned. The moral obligation to repay
favors such as this is sufficient detriment
to the plaintiff to support an award for
the reasonable value of such services,
providing they were made necessary by
the injury wrongfully inflicted. 5
In Lopez, the plaintiff slipped and fell
while entering a Safeway store and sustained
injuries. On appeal, the Arizona Court of
Appeals examined whether Lopez was entitled
to claim and recover the full amount of
her reasonable medical expenses for which
she was charged, even though some of the
expenses were written off by the providers in
conjunction with the insurance carrier. 6
The court based its findings on the
Restatement (Second) of Torts collateralsource
rule, adopted after Holliday was
decided. 7 The focal point of the collateralsource
rule is not whether an injured party
has “incurred” certain medical expenses,
but rather whether a tort victim has benefited
from a collateral source that cannot be
used to reduce the amount of damages
owed by a tortfeasor. 8
VENERANDA J. AGUIRRE is a 2005 University of Arizona Law School graduate.
She is currently in solo practice in Tucson, Arizona, and enjoys working
in a variety of legal genres. Aguirre is an active member of the Junior League
and works with independently living seniors, and volunteers for Organizing
for America. She lives in Tucson with her husband Daniel Mandel, a software
engineer for Apple, Inc.
She can be reached at (520) 247-5610 or vene_aguirre@yahoo.com.
The court explained that compensatory
damages are meant to make a tort victim
whole. 9 It is the tortfeasor who should make
the victim whole and not a combination of
the tortfeasor and collateral sources, such as
health care providers. 10 To the extent that
such a result provides a windfall to the
injured party, the court acknowledged that
the victim of the wrong should receive the
windfall rather than the wrongdoer. 11
In Carbajal, the plaintiff suffered an
industrial injury that caused cognitive problems
and partial paralysis, resulting in
required full-time supervision and intermittent
attendant assistance. His employer,
Phelps Dodge, and its workers’ compensation
carrier provided daily attendant care.
Each weekday an attendant arrived at Mr.
Carbajal’s home, helped him in his necessary
duties and helped him perform simple exercises.
The attendant also drove him to and
from a rehabilitation center. The rest of the
time, and those times when the attendant did
not arrive, Mrs. Carbajal was left to act as
attendant to her husband.
Mrs. Carbajal sued the carrier for compensation
for services provided under A.R.S.
§ 23-1062(A). The Administrative Law
Judge denied compensation, concluding that
Mrs. Carbajal’s services were those “assumed
by a spouse in accord with the marriage commitment.”
12 The Court of Appeals denied
Mrs. Carbajal’s claim based on what the
Supreme Court would later call semantics. 13
The Supreme Court instead granted Mrs.
Carbajal’s claims, comparing the services she
provided to those provided by the paid attendant.
14 For the Court, it was not the identity
of the service provider, but the nature of the
services provided that determined the compensability
of services. 15 The Court went on
to hold that Mrs. Carbajal’s services were
compensable under the statute.
The Restatement
The collateral-source rule, Section 920A(2)
of the Restatement (Second) of Torts, states,
“Payments made to or benefits conferred on
the injured party from other sources are not
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Tortfeasors and Family-Provided Care
The majority of courts have
taken the view that damages
should be measured by the market rate, or by
the amount for which reasonably competent
care could be obtained from others.
credited against the tortfeasor’s liability,
although they cover all or a part of the harm
for which the tortfeasor is liable.” 16
In addition, § 924 of the Restatement
provides that a tort victim may recover damages
for “reasonable medical and other
expenses.” Much like the collateral-source
rule, comment f to § 924 states in part that:
The injured person is entitled to damages
for all expenses and for the value of
services reasonably made necessary by
the harm… . The value of medical services
made necessary by the tort can ordinarily
be recovered although they have
created no liability or expense to the
injured person, as when a physician
donates his services.
The language of these sections suggests
that it is tort law’s intention for a defendant
to pay for the costs associated with gratuitous
care given to the injured party by a relative,
and such care is recoverable by the caretaker.
Other States’ Views
In Kaiser v. St. Louis Transit Co., 17 the
Missouri Supreme Court reasoned, using the
theory of the collateral-source rule, that the
plaintiff would have required the attendance
of a paid nurse if his wife and daughter had
not been able to nurse him, and such a gift
was to the plaintiff and not for the benefit of
the defendant. In Wright v. United States, 18
using similar logic, a federal district court
concluded that to rebate the gratuitous cost
of familial care from the plaintiff’s award
would in effect make the tortfeasor a thirdparty
beneficiary of spouses’ duty to care for
each other. In Bandel v. Friedrich, 19 the New
Jersey Supreme Court stated that the gratuitous
provision of services by the plaintiff’s
mother neither abated nor diminished the
defendant’s obligation to pay full compensatory
damages, which include the value of
such services as a measure of the plaintiff’s
lost capacity. Furthermore, the court said
that the fact that the mother of the injured
plaintiff was not obligated to provide the care
did not bar the application of the collateralsource
rule. 20
Defendants have attempted to argue that
relatives owe a duty to care for one another,
and, therefore, courts should not award damages
when a relative provides gratuitous care,
such as when a parent cares for a child.
Courts have overwhelmingly rejected this
contention. 21 Courts have more specifically
found that spouses are not legally bound to
care for one another, and thus the gratuitous
care they provide is recoverable. 22 Conversely,
even where a husband was found to owe a
duty to his wife to provide care, at least one
court nevertheless awarded the reasonable
value of nursing services to the caretaker. 23
Measure of Damages
Lost Wages vs. Nursing Costs
The majority of courts have taken the view
that damages should be measured by the
market rate, or by the amount for which reasonably
competent care could be obtained
from others. 24
In Depouw v. Bichette, 25 a minority decision,
the Ohio Supreme Court recognized
that a majority of state and federal courts
have determined that the value to be awarded
as damages is not lost wages, but the cost
of hiring an outside nurse to render the
care. 26 Nevertheless, the court found that
when an individual is injured by the negligence
of another and requires assistance with
basic daily functions, it is not unreasonable
for a spouse to prefer the assistance of a
loved one over that of a total stranger. 27 As a
consequence of the defendant’s negligence,
Mr. Depouw lost wages while caring for his
wife, and, consequently, the marital income
of the Depouws was reduced. 28 The court
ruled that Mrs. Depouw should be able to
recover for her husband’s lost wages. 29 In
essence, Mrs. Depouw received the benefit
of her husband’s care, the measure of which
was the detriment their marital income
incurred.
Several jurisdictions have supported the
plaintiff’s claim for the caretaker’s lost wages
while the caretaker was providing assistance
to the plaintiff. 30 Courts, in granting lost
wages, have looked for solid evidence of the
actual loss incurred by the family. 31 In those
cases where lost wages are speculative, such
as where a caretaker is self-employed, courts
have been reluctant to award damages based
on lost earnings. 32 Some courts also have
placed limits on the amount of recoverable
lost wages to what would have been expended
had a nurse been hired to care for the
injured party. 33
Skilled vs.Unskilled Nursing Care
Where jurisdictions have sided with the
majority and ruled that the measure of damages
is the market rate of nursing care, trial
courts have been presented with the issue of
valuing such care. Some courts have preferred
to measure the damages by the standards
of skilled nurses. 34 Others, however,
have limited the amount of recovery to the
reasonable value of nursing by a person of
ordinary and untrained skill. 35 There does
not appear to be an overriding majority
opinion among the courts as between skilled
or unskilled nursing care damages, nor have
courts offered their reasoning for granting
one or the other.
Final Analysis
Based on the research, your analysis leads
you to the following: Though Holliday is a
case directly on point, Lopez is a more recent
case that reflects general principles of law.
Both cases are valuable to your client’s claim.
Holliday stands for the principle that familial
care creates a burden on the plaintiff that
must be paid back by the defendant, and
Lopez builds the framework for recovery
based on the collateral-source rule, stating
that the tortfeasor should not benefit from
the gratuitous acts of another. Carbajal,
while limited to workers’ compensation
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claims, adds another
layer to the foundation
that family
members should be compensated for care
they provide, by focusing on the care given,
instead of who the caregiver is.
With regard to the type and amount of
damages, because there is no governing law
in this matter, it is best to argue for damages
based on the facts of your client’s case. First,
calculate the caretaker’s total lost wages as
well as what it would cost to hire an
unskilled and skilled nurse for your client’s
endnotes
Tortfeasors and Family-Provided Care
1.411 P.2d 183 (Ariz. Ct. App. 1966).
2.129 P.3d 487 (Ariz. Ct. App. 2006).
3.2009 WL 1650428 (Ariz. Sup. Ct. June 15, 2009).
4.411 P.2d at 194.
5.Id.
6.Based on information provided by Lopez, Safeway pointed out that,
although Lopez’ medical bills totaled approximately $59,700, more
than $42,000 of that was completely written off as adjustments.
Safeway argued that Lopez should only be able to claim and present
evidence on the $16,837 actually accepted in full satisfaction of the
services rendered.
7.Lopez, 129 P.3d at 491. Taylor v. S. Pac. Transp. Co., 637 P.2d 726,
729-730 (Ariz. 1981), was the first Arizona case to formally adopt the
collateral-source rule, but it did not involve gratuitous caretaking.
8.Lopez, 129 P.3d at 492.
9.Id. at 496.
10. Id.
11. Id. at 497.
12. 2009 WL 1650428, 4.
13. Id. 9-15.
14. Id. 19.
15. Id.
16. Comment b to this section states:
Payments made or benefits conferred by other sources are known as
collateral-source benefits. They do not have the effect of reducing the
recovery against the defendant. … [T]o the extent that the defendant
is required to pay the total amount [of the recovery] there may be a
double compensation for a part of the plaintiff’s injury. But it is the
position of the law that a benefit that is directed to the injured party
should not be shifted so as to become a windfall for the tortfeasor… .
If the benefit was a gift to the plaintiff from a third party … he should
not be deprived of the advantage that it confers… . One way of stating
this conclusion is to say that it is the tortfeasor’s responsibility to
compensate for all harm that he causes, not confined to the net loss
that the injured party receives… . Perhaps there is an element of punishment
of the wrongdoer involved… . Perhaps also this is regarded as
a means of helping to make the compensation more nearly compensatory
to the injured party.
Comment c(3) states that the collateral-source rule applies to the
rendering of services as well. For example, the fact that a doctor did not
charge for his services does not prevent the plaintiff’s recovery of the
reasonable value of the services from the defendant.
17. 84 S.W. 199 (Mo. 1904).
18. 507 F. Supp. 147 (E.D. La. 1981).
19. 584 A.2d 800 (N.J. 1991).
period of convalescence. If total lost wages
exceed all market-rate amounts, argue for
lost wages. Keep in mind, however, that
some courts have capped lost wages at market
rate amounts.
If, however, market rates exceed total lost
wages, or if lost wages are vague or difficult
to calculate, then consider the amount of
skill involved in caring for your client. If the
caretaker had to acquire special skills, such as
learning how to administer certain drugs
intravenously, then you might have an argument
for skilled nursing care damages.
Otherwise, it is uncertain whether a court
would grant skilled or unskilled market rates,
and you will argue that Arizona should follow
California’s and Texas’ lead and grant
skilled nursing care rates.
You are satisfied that your client has a
meritorious claim to bring against the City
for damages including the gratuitous care.
While the City cannot give you your client’s
months of pain and suffering back, it is now
likely that your client will be made more
whole and that his tortfeasor will be more
AZ
thoroughly punished. AT
20. Id.
21. See, e.g., Hanif v. Housing Authority, 246 Cal. Rptr. 92 (1988). In
Hanif, a California personal injury action by a child struck by an automobile,
the court of appeals affirmed the trial court’s award of special
damages, notwithstanding the defendants’ arguments that parents have
a legal duty to provide care to their children or that they rendered the
services without an agreement or expectation of payment. See 49
A.L.R. 5th 685 (1997), § 10. In a few parent/child cases, however,
some courts have prohibited recovery for parental care, limiting damages
to what care the parent can show goes beyond the care normally
incidental to the relationship between parents and their children. See
id. § 9.
22. See Rodriguez v. McDonnell Douglas Corp., 11 Cal. Rptr. 399 (1978);
Strand v. Grinell Auto Garage Co., 113 N.W. 488 (Iowa 1907).
23. Van House v. Canadian N. R. Co., 192 N.W. 496 (Minn. 1923).
24. See Depouw v. Bichette, 833 N.E.2d 744, 747 (Ohio 2005), for a discussion
of the majority opinion. See also Bandel v Friedrich, 584 A.2d
800 (N.J. 1991); Walker v. Philadelphia, 45 A. 657 (Pa. 1900);
Richter v. North American Van Lines, Inc., 110 F. Supp. 2d 406 (D.
Md. 2000); Rodriguez, 11 Cal. Rptr. at 399; Wright v. United States,
507 F. Supp. at 147; Chicago D. & G.B. Transit Co. v. Moore, 259 F.
490 (6th Cir. 1919); Scanlon v. Kansas City, 81 S.W.2d 939 (Mo.
1935); Rouse v. Riverside Methodist Hospital, 459 N.E.2d 593 (Ohio
1983).
25. 833 N.E.2d 744 (Ohio 2005).
26. Id. at 747.
27. Id at 747-748.
28. Id.
29. Id. at 748.
30. See Shurk v. Christensen, 497 P.2d 937 (Wash. 1972). See also Fields v.
Graff, 784 F. Supp. 224 (E.D. Pa. 1992); and Lester v. Dunn, 47 F.2d
983 (D.C. Cir. 1973), applying Maryland law.
31. See Kerns v. Lewis, 227 N.W. 727 (Mich. 1929). In Kerns, testimony
that the husband/plaintiff’s employer had hired another at the wage
of $11 per day, and that the plaintiff had spent approximately six
months at home caring for his wife before she died, was held sufficient
to furnish a basis for evaluating his damages. See also Depouw, 833
N.E.2d at 744. In Depouw, the calculable loss was 12 days of vacation
time lost by a husband due to caring for his wife.
32. See Fargason v. Pervis, 227 S.E.2d 464 (Ga. 1976).
33. See Becker v. Doble, 134 A. 154 (Conn. 1926). See also Byrne v. Pilgrim
Med. Group, Inc., 44 A.2d 920 (N.J. 1982).
34. See Ft. Worth & D.C.R. Co. v. Walker, 106 S.W. 400 (Tex. 1907). See
also Hanif, 246 Cal. Rptr. at 92.
35. See MacDonald v. St. Louis Transit Co., 83 S.W. 1001 (Mo. 1904). See
also Pressy v. Patterson, 898 F.2d 1018 (5th Cir. 1990).
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