Probably not Grandpa Simpson

He was probably an A-hole even before he got sick.

Kymberli Gardner worked at the Plaza Community Living Centre from 2012-2015.  From 2006-2014 a certain elderly man was a resident of the home.  His medical conditions included dementia, traumatic brain injury, Parkinson’s disease and personality disorder with aggressive behaviour. He had a history of showing violence (including sexual violence) to patients and staff.

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Image from here

Gardner was repeatedly the subject of the man’s attentions. Her employer made only minimal and ineffective steps to manage him. She reached breaking point in a final incident of assault on her and two other nurses.  She refused to provide further care to him.  She sought medical care for her injuries and lodged a workers compensation claim. On returning to work her employment was terminated. As a result of a subsequent incident the patient was sent to an all-male unit elsewhere.

Gardner sued, alleging a hostile work environment and retaliation. The US District Court for Southern Mississippi dismissed her claim: Gardner v CLC of Pascagoula LLC (US Dist. Ct, S.D. Miss., Guirola CDJ, 6 February 2017, unreported).  She appealed.

The 5th Circuit Court of Appeals accepted that Gardner’s experience could constitute severe and pervasive harassment. The employer was not permitted to wash its hands of the resident’s conduct, notwithstanding that he was medically unable to act appropriately.

Inappropriate comments and incidental contact are sufficiently common behaviors among patients with reduced cognitive ability that it is not objectively reasonable for a caregiver to expect they will never happen. In contrast, the facility must take steps to try to protect an employee once there is physical contact that progresses from ooccasional inappropriate touching or minor slapping to persistent sexual harassment or violence with the risk of significant physical harm.

Liability based on the behaviour of someone not a supervisor depended on whether the employer knew or should have known of the hostile environment and took reasonable measures to try to abate it.  The court noted that other care homes had avoided liability by actions like –

  • providing a security escort
  • reassigning the employee
  • offering to remove the patient from the home.

The District Court judgment was reversed and the matter remanded for further proceedings.

Gardner v CLC of Pascagoula LLC (US Fifth Circuit Court of Appeals, 29 June 2018)

The Fourth is not with you

One of the more difficult parts of a personal injury lawyer’s job is explaining to the victim of tragedy that they don’t have a case.  The Fifth Circuit of the US Court of Appeals has to do the same thing.

On 21 January 2015 John Gorman was undertaking firearms training connected with his work for the Mississippi Gaming Commission.  Fellow instructor Robert Sharp forgot to replace his own real firearm with a dummy firearm.  In the course of training he shot Gorman in the chest causing fatal injuries.

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Gorman’s widow sought compensation from Sharp on the grounds that he had violated the American Constitution’s Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….

Sharp’s application to dismiss the proceedings was denied by the US District Court: Gorman v State of Mississippi, 258 F.Supp.3d 761 (2017).  He appealed to the Fifth Circuit Court of Appeals.

The appeal was upheld.  Existing case law had consistently said that there is no liability under the Fourth Amendment absent deliberate and intentional conduct.  In this case it was undisputed that Sharp genuinely believed he was using a dummy firearm and had not shot Gorman wilfully.  The court observed sadly that –

The circumstances that led to this lawsuit are unquestionably tragic — an accidental fatal shooting during an officer training session. But the Constitution does not afford a cure for every tragedy.

The District Court’s decision was reversed.  It was noted that the plaintiff was also pursuing a claim in State law.

Gorman v Sharp (2018), US Fifth Circuit Court of Appeals, 6 June 2018.