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Facility May Be Liable In Sexual Assault By Unsupervised Aide

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Victoria Ann Elder’s last years were tragic. The victim of an automobile accident, Ms. Elder was a quadriplegic and confined to her bed at the Stone County Skilled Nursing Facility in Mountain View, Arkansas. One Saturday evening the helpless woman was sexually assaulted by an aide at the nursing home.

William McConnaughey, an aide at the facility who had begun his employment as a janitor and taken a two-week course to become a nurse’s aide, was assigned to clean and change Ms. Elder. At about 8 p.m. that Saturday another aide observed Mr. McConnaughey molesting Ms. Elder.

The second aide talked to a senior nurse, who told her to “wait to see if it happened again.” She knew that was an inadequate answer, and reported what she had seen to the charge nurse.

The charge nurse, in turn, attempted to contact the facility’s director of nursing and nurse administrator. Neither was available on Saturday night, but the charge nurse made no effort to file a complaint with the authorities.

Monday morning the charge nurse told the nursing home’s management what had happened, and the facility took quick action. After the nurse administrator interviewed witnesses and notified Ms. Elder’s father and physician, she contacted the police.

A lawsuit was filed on Ms. Elder’s behalf sixteen months later, relying on two separate theories. The first claimed “vicarious” liability for Mr. McConnaughey’s actions because they occurred in the course of his employment with the nursing home. The second maintained that the nursing home was liable because it had been negligent in its supervision.

The trial judge dismissed Ms. Elder’s complaint, finding that the nursing home had no reason to expect that Mr. McConnaughey might molest a patient. Ms. Elder’s estate (she died after the lawsuit was begun) appealed.

The Arkansas Court of Appeals agreed with the trial judge on one of the lawsuit’s theories, but sent the matter back for trial on the other. Mr. McConnaughey’s misbehavior was obviously not within the scope of his duties, the judges decided, and there was no reason for the nursing home to expect he might do such a thing. The nursing home was not directly liable for his actions.

On the subject of the home’s supervision of Mr. McConnaughey, on the other hand, the trial judge was wrong. At least one expert witness was prepared to testify that Stone County had a history of failing to supervise aides (based on deficiencies noted in prior facility surveys), and that they permitted male aides unmonitored access to helpless patients. The Court of Appeals ordered a full trial on the negligent supervision claim. Regions Bank & Trust, N.A. v. Stone County Skilled Nursing Facility, Inc., February 28, 2001.

[Note: On July 9, 2001, the Arkansas Supreme Court upheld most of the Court of Appeals’ conclusions. It determined that the lawsuit had actually been brought under three different theories, and ordered that the trial continue on the argument that the nursing home had failed to provide adequate staffing and care. The Supreme Court agreed with the trial judge that the claims against the nursing home for negligent supervision of Mr. McConnaughey should be dismissed, along with the claim that the nursing home was automatically liable for all of its employees’ actions.]

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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.