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Court Dismisses Claim Alleging Neglect Of Mother-In-Law

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Frances McMahon spent the last year of her life at Guardian Postacute Services, a Walnut Creek, California, skilled nursing facility. According to her family members, the care at the facility led to her early death; she allegedly suffered from malnutrition and dehydration, lost considerable weight, became bedridden and incontinent. After her death her son and daughter filed a civil complaint against the nursing facility. Ms. McMahon’s son-in-law Ken Moon also filed for damages, alleging that the nursing facility had injured him by its treatment of his mother-in-law.

Mr. Moon claimed that the nursing facility, through its negligence, had inflicted emotional distress on him. The home had injured him, argued Mr. Moon, because he was forced to watch what he thought was substandard and neglectful care being delivered to his mother-in-law, and ultimately was witness to her decline and death.

Normally such a claim for injuries would not be available to someone who is not a blood relative of the actual victim. Mr. Moon argued, however, that his relationship with his mother-in-law was unusually strong. He pointed out that Ms. McMahon had lived with him and his wife for four or five months some years before she went into the nursing home, and that she had spent one month with the couple every year for nearly twenty years.

In order to sustain a claim for negligent infliction of emotional distress under California law, Mr. Moon would have to show that there were “exceptional circumstances” involved in his relationship with his mother-in-law. The trial judge did not believe that Mr. Moon had made a sufficiently good argument, and dismissed him as a plaintiff before trial. Mr. Moon appealed the dismissal.

In his appeal Mr. Moon insisted that he had been injured by the nursing facility’s care of his mother-in-law. He argued that he was a direct victim (since the facility knew he was a concerned family member and disregarded the effect its practices would have on him). He also maintained that he was injured as a “bystander” by virtue of having to watch the mistreatment of the real victim, Ms. McMahon.

The California Court of Appeal considered Mr. Moon’s argument, and agreed that there was no legal claim available to him. They noted that there was a strong relationship between Mr. Moon and Ms. McMahon, but found that he was not a direct victim of the alleged poor-quality care at the facility.

In order to support his claim as a bystander, Mr. Moon would have to show that he was either a relative residing in the same household, a parent, sibling, child or grandchild of Ms. McMahon. In the alternative, if he could have shown that there were no other relatives to make a claim he might be allowed to pursue his legal action, but the ordinary relationship between a mother-in-law and son-in-law, even one with significant ties and a strong emotional bond, would not qualify. Moon v. Guardian Postacute Services, Inc., January 31, 2002.

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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.

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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.