Michipremes Do Right in Kermath

By Doug Chalgian on June 17, 2022

I previously posted (even wrote an article) about this case.

The story is that Virginia Kermath, a demented elder, got locked out of a care home and froze to death.  The facility’s defense was that they were an “independent living” facility and assumed no duty to protect this person from dangers presented by her cognitive impairments.  That, notwithstanding the fact that they knew this resident was demented, had connected her family with supplemental services to allow her to remain in their “independent” wing, and that she took her meals in the dementia care ward.

The Michigan Court of Appeals agreed that the facility had no duty and let the care home off the hook.  To read my prior post, click here.

Now, the Michigan Supreme Court is sending the case back to the trial court so that the case can be heard by a jury.   In its order remaining the case, the MSC holds that the facility assumed a common law duty of care and makes some helpful findings, including:

The harm at issue was objectively foreseeable. Ms. Kermath was injured and later passed away after she exited a door in a common area of the building, which was under the exclusive control of the landlord, and she was locked out in the cold due to the door having an automatic lock. A reasonable person could anticipate that an elderly resident living in an unlicensed independent-living facility where the average age of the residents exceeds 80 years old could become locked out of a building after exiting an automatically locking door on a cold winter morning.

And

The record shows that Independence Village of Oxford intentionally marketed and catered to elderly individuals who are in need of greater support than the general population. A substantial premium is charged for tenancy at the facility, which includes two hot meals a day, biweekly housekeeping, and laundry services. The record shows that the facility also provided daily check-in calls, a pull-cord alert mechanism in units, and an on-site third-party contractor who offers additional homecare and medical services for a fee, measures that strongly suggest the landlord had some knowledge that certain residents would require additional assistance beyond that of an average tenant.

To read the MSC Order, click here.

Congrats to our friends at Olsman McKenzie Peacock and Wallace for sticking with this important case.   And good luck in trial – if it ever gets that far.

mm By: Doug Chalgian
Doug Chalgian

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