Court of Appeal Affirms JNOV in Elder Abuse Case

Lewis Brisbois recently convinced the California Court of Appeal to affirm the trial court’s order granting a motion for judgment notwithstanding the verdict (JNOV) on a plaintiffs’ elder abuse cause of action.

The plaintiffs sued our client, a skilled nursing facility and other companies, for negligence, elder abuse, and wrongful death. Plaintiffs alleged the decedent died from a fatal choking incident as a result of the defendants’ understaffing and combined failures to monitor him during his meals and serve him the proper diet. After a 17-day jury trial, the jury awarded plaintiffs in excess of $1 million on their elder abuse, negligence, and wrongful death causes of action. The court also awarded attorneys’ fees pursuant to the Elder Abuse statute. We moved for a new trial and for JNOV. The trial court granted defendants’ motion for JNOV as to the claim for elder abuse, which also eliminated the attorneys’ fee award. The court agreed with the defendants that the jury erroneously determined that defendants’ acts amounted to elder abuse.

The Court of Appeal affirmed finding no substantial evidence of recklessness. There was no evidence in the record of deliberate conduct undertaken despite knowledge of a probable injury to the decedent. The court rejected the plaintiffs’ argument that the facility was recklessly understaffed. There was no evidence inadequate staffing levels had led to previous safety issues or that one or two additional staff members were necessary for the decedent’s safety. The court concluded that a slight understaffing, without any indication that it created an imminent risk of harm, does not amount to recklessness. The court also noted that there was no evidence the failure to monitor was intentional or that the staff was indifferent to the decedent’s plight. The defendant’s conduct was not sufficiently egregious to rise to the level of recklessness to support an elder abuse cause of action.

San Diego Appellate Practice Group Members Jeffry A. Miller and Brittany Bartold Sutton and San Bernardino Partners Bryan R. Reid and Peter E. Theophilos handled the case.

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