Bolieu v. Sisters of Providence in Washington

953 P.2d 1233, 1998 Alas. LEXIS 22, 1998 WL 65414
CourtAlaska Supreme Court
DecidedFebruary 13, 1998
DocketS-7575
StatusPublished
Cited by20 cases

This text of 953 P.2d 1233 (Bolieu v. Sisters of Providence in Washington) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bolieu v. Sisters of Providence in Washington, 953 P.2d 1233, 1998 Alas. LEXIS 22, 1998 WL 65414 (Ala. 1998).

Opinions

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

The issue presented is whether a residential health care facility owes to the spouses of the facility’s nursing assistants any duty of care to control infections or warn of the danger of infection. The superior court held that it does not. Because we conclude that the relevant considerations warrant imposing a duty of care, we reverse.

II. FACTS AND PROCEEDINGS

Gwen Bolieu and Bodhmati Oliver were employed as nursing assistants at Our Lady of Compassion Care Center (Our Lady).1 They are respectively married to Walter Bo-lieu and Orlin Oliver. Sisters of Providence in Washington operates Our Lady, a convalescent and long-term residential care facility. Among other things, nursing assistants take the blood pressure of Our Lady residents and help them bathe.

In 1990 several Our Lady employees reported skin problems. They complained of a skin rash with itchy bumps. The Director of Quality Management at Our Lady, Nurse Kathleen Lum, sent the employees, including [1234]*1234Bodhmati, to a treatment center where Bo-dhmati was diagnosed with a staph infection.2 She was off work for a week and treated with antibiotics. Gwen also contracted a skin rash in 1990.

Nurse Lum also directed the nursing staff to check the skin of Our Lady patients. Nurse Lum affied that at least three patients suffered from rashes, but that the cause was not determined. A microscopic examination ruled out scabies.3

In 1991 many Our Lady employees again complained of various skin rashes and disorders. Nurse Lum sent them to a dermatologist or a treatment center for examination.

In June 1991 Bodhmati was diagnosed and treated for a staph infection. In July 1991 Gwen was diagnosed and treated for a staph infection.

Gwen and Bodhmati filed workers’ compensation claims. Dr. Michael Beirne apparently concluded in the context of their workers’ compensation claims that their infections were work-related. Dr. Beirne later explained in a deposition taken in the tort suits that

[T]hey would have the — the condition when they were at work, and then when they retreated them and kept them off work for a while, they — the condition would resolve. And then when they would go back on the job, the disease would recur.
And this happened a number of times, and we came to the conclusion that that was — that was the situation, that they were picking it up at work and that environment, or whatever was there, however it worked, was causing this. '

Infectious disease specialists — -including Drs. Burton Janis and Paul Roberts, who evaluated Gwen and Bodhmati in the workers’ compensation proceedings — offered opinions contrary to Dr. Beirne’s, concluding that the employees’ skin conditions were not work-related. Their opinions seem to be founded on the widespread distribution of staph bacteria in the general community.

Dr. Beirne diagnosed both Walter Bolieu and Orlin Oliver with staphylococcus bacterial infections. He opined that they contracted their skin infections from their wives.

Walter and Orlin each filed a personal injury complaint against Our Lady in 1993; each alleged that he had been infected with staph during visits to the facility and/or through contact with his wife. Their complaints asserted that Our Lady owed them and their families “a duty of care to maintain their care center free of staph or other infections [sic] diseases.” The cases were consolidated.

Our Lady moved for summary judgment, arguing in part that health care facilities have no duty to protect non-patients from infectious agents routinely encountered in the general community.4 The superior court granted Our Lady’s motion. Applying the factors set out in D.S.W. v. Fairbanks North Star Borough School District, 628 P.2d 554, 555 (Alaska 1981), it ruled that Our Lady owed Walter and Orlin no duty of care.

Walter and Orlin filed a motion for reconsideration, supported by extensive materials not previously filed. The superior court denied their motion, entered final judgment against them, and awarded attorney’s fees and costs to Our Lady.

[1235]*1235Walter and Orlin argue on appeal that Our Lady owes them a duty of care.

III. DISCUSSION

A. Standard of Review

We review “a grant of summary judgment de novo and will adopt the rule of law that is most persuasive in light of precedent, reason, and policy.” Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1134 (Alaska 1996) (citations omitted). We will uphold a grant of summary judgment if the record presents no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Newton v. Magill, 872 P.2d 1213, 1215 (Alaska 1994). Because the duty issue was presented to the superior court on Our Lady’s motion for summary judgment, we take all permissible factual inferences in favor of Walter and Orlin.

“The existence and extent of a duty of care are questions of law for the court to determine.” Beck v. State, Dep’t of Transp. & Pub. Facilities, 837 P.2d 105, 109 (Alaska 1992) (applying the test established in Tommy’s Elbow Room, Inc. v. Kavorkian, 727 P.2d 1038, 1040-43 (Alaska 1986), to allow plaintiff to pursue claim for negligent infliction of emotional distress).

B. Does Our Lady’s Duty to Minimize Infection or Warn Employees Extend to Nursing Assistants’ Spouses?

Walter and Orlin claim that Our Lady owed them a duty to take “reasonable measures” to control infectious diseases at its facility. They also argue that Our Lady owed them a duty to inform or warn employees that their infections could be spread to family members, and that the employees should take measures to prevent such a spread. The superior court concluded that Our Lady owed the spouses no duty of care.

Before a defendant can be held hable for negligence, it must owe a duty of care to the plaintiff. See Division of Corrections v. Neakok, 721 P.2d 1121, 1125 (Alaska 1986). “Duty” is the “expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection.” Id. (quoting William L. Prosser, The Law of Torts § 53, at 325-26 (4th ed.1971)). In the absence of any other source of a duty of care (imposed, for example, by statute, contract, or doctrine of law) we consider seven factors in deciding whether a duty of care exists:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Chitwood v. Bacon
D. Alaska, 2022
Jane Doe v. Cochran
210 A.3d 469 (Supreme Court of Connecticut, 2019)
GeoTek Alaska, Inc. v. Jacobs Engineering Group, Inc.
354 P.3d 394 (Alaska Supreme Court, 2015)
Estate of Mickelsen Ex Rel. Mickelsen v. North-Wend Foods, Inc.
274 P.3d 1193 (Alaska Supreme Court, 2012)
Parnell v. Peak Oilfield Service Co.
174 P.3d 757 (Alaska Supreme Court, 2008)
Kallstrom v. United States
43 P.3d 162 (Alaska Supreme Court, 2002)
Dore v. City of Fairbanks
31 P.3d 788 (Alaska Supreme Court, 2001)
Lynden Inc. v. Walker
30 P.3d 609 (Alaska Supreme Court, 2001)
Robles v. Shoreside Petroleum, Inc.
29 P.3d 838 (Alaska Supreme Court, 2001)
Guerrero Ex Rel. Guerrero v. Alaska Housing Finance Corp.
6 P.3d 250 (Alaska Supreme Court, 2000)
Wilson v. United States
190 F.3d 959 (Ninth Circuit, 1999)
Bolieu v. Our Lady of Compassion Care Center
983 P.2d 1270 (Alaska Supreme Court, 1999)
Dinsmore-Poff v. Alvord
972 P.2d 978 (Alaska Supreme Court, 1999)
Mesiar v. Heckman
964 P.2d 445 (Alaska Supreme Court, 1998)
Bolieu v. Sisters of Providence in Washington
953 P.2d 1233 (Alaska Supreme Court, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
953 P.2d 1233, 1998 Alas. LEXIS 22, 1998 WL 65414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bolieu-v-sisters-of-providence-in-washington-alaska-1998.