Storm v. NSL Rockland Place, LLC

Paul Storm (plaintiff) was admitted to NSL Rockland Place (Rockland) (defendant), an assisted-living facility (ALF), for rehabilitative care. Paul suffered from alcoholism and required mobility assistance to avoid falls. Prior to admission, Paul signed a Residency Agreement with Rockland stating that Paul assumed the risk of injury while residing at Rockland. Paul resided at Rockland for approximately two weeks, during which he repeatedly left Rockland’s facilities to obtain alcohol and returned severely intoxicated. Paul also refused meals, medications, and treatments. On February 9, 2002, Paul refused to attend breakfast and reportedly ordered staff to leave him alone. At dinner time, Rockland staff went to Paul’s room to collect him, but Paul did not respond. Rockland staff found Paul unconscious on the floor, having apparently fallen while alone in his room all day. Paul sustained a severe traumatic brain injury. Paul’s wife, Joann Storm (plaintiff), sued Rockland for medical negligence. Rockland moved for summary judgment and raised the affirmative defense of primary assumption of risk, arguing that Rockland was not liable for Paul’s injuries because Paul signed the liability waiver in the residency agreement. Rockland also raised an alternative defense of secondary assumption of risk, arguing that Paul’s actions contributed to his own injury and that he should be comparatively liable. Joann challenged, arguing that Rockland could not raise the primary-assumption-of-risk affirmative defense because ALFs had a statutory duty of care that could not be waived.