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Assisted Living Facility May Be Liable For Death Of Resident

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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.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.