The Ties That Bind: Tortfeasors and Family-Provided Care

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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