The Ties That Bind: Tortfeasors and Family-Provided Care

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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. w w w. m y a z b a r. o r g / A Z A t t o r n e y 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 M AY 2 0 1 0 A R I Z O N A AT T O R N E Y 19
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 20 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
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The Ties That Bind: Tortfeasors and Family-Provided Care

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