DECEMBER 31, 2001 VOLUME 9, NUMBER 27
For seniors who need a supportive residential environment but not nursing home placement, assisted living facilities can be a wonderful option. They can combine all the advantages of a controlled placement, but need not interfere with their residents’ personal freedom. Sometimes, however, assisted living facilities can be caught between the need to provide adequate supervision and the desire to protect the autonomy of residents.
DMC Regency Residence operates an assisted living facility in Broward County, Florida. The building itself is adjacent to a canal, and near a local flea market. Many of the facility’s residents liked to walk to the flea market, and their regular use over time created a trail along the edge of the canal. Although its banks were steep and slippery, the facility did nothing to restrict residents’ access to the canal.
One of the residents, 93-year-old Benjamin Selvin, was at least mildly confused. As is common with assisted living, the facility had agreed to supervise the administration of his medications, assist him with bathing and provide two meals a day.
One Saturday morning a certified nurse’s assistant could not find Mr. Selvin to give him his medication. After a fruitless day-long search and the intervention of family members a missing persons report was filed. The next morning Mr. Selvin’s body was found floating in the canal nearby; his death was ruled an accidental drowning.
Mr. Selvin’s estate sued the facility, alleging that it was responsible for his death because, among other things, it failed to fence its property to prevent residents from getting too near the canal. The facility, in turn, argued that residents should be encouraged to maintain their personal lives to the extent possible, and should not be constrained by such protective measures.
The trial judge agreed with the facility and precluded testimony from the expert witnesses. In fact, the court refused to permit any discussion of the canal as a safety threat, and instructed the jury that the facility had no duty to prevent access to the canal.
After a verdict in favor of the assisted living facility the estate appealed. The Court of Appeals ordered a new trial, and specifically directed that the expert witnesses should be permitted to testify. It may be, said the Court, that Mr. Selvin’s contract with the facility effectively took the “assisted” out of “assisted living,” but that determination was one for the jury to make after hearing all the evidence, including testimony about the nature and condition of the canal, possible protective measures, and common standards in the industry. Furthermore, the jury will not be instructed that the facility had no duty to make the property safe for Mr. Selvin. Selvin v. DMC Regency Residence, LTD, Dec. 19, 2001.