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Indiana Nursing Home Patient Not Liable For CNA’s Injuries

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JUNE 19, 2000 VOLUME 7, NUMBER 51

Carol Creasy worked as a certified nursing assistant at Brethren Healthcare Center in Flora, Indiana. She had worked at the facility for almost two years. Among the residents she helped care for was Lloyd Rusk, an Alzheimer’s patient with a tendency to be combative.

Mr. Rusk was first admitted to Brethren in 1992 because he became confused and his wife could no longer care for him. Over the next three years Mr. Rusk developed a reputation among Brethren staff for being difficult to deal with. He was sometimes belligerent with staff and other residents. He occasionally became anxious, confused, depressed, disoriented and agitated. He frequently resisted staff efforts to redirect him when he strayed into private areas in the facility. He was often combative, and had hit staff members when they tried to care for him.

In May, 1995, Ms. Creasy and Linda Davis, a fellow CNA, were trying to put Mr. Rusk and the other residents in their beds. Mr. Rusk had been particularly combative that evening, and so Ms. Davis was holding his wrists to keep him from hitting either of the CNAs. Their efforts to subdue Mr. Rusk were ineffective, and he managed to kick Ms. Creasy several times. In the course of their efforts, Ms. Creasy suffered a serious lower back injury.

Ms. Creasy brought a lawsuit for her injuries. She sued not only Brethren Healthcare, but also Mr. Rusk himself. Lawyers for Mr. Rusk persuaded the trial judge that the lawsuit against him should be dismissed, since he was unable to understand the nature of his behavior.

Ms. Creasy appealed the dismissal to the Indiana Supreme Court. The judges ultimately upheld the dismissal of the lawsuit, though on somewhat different grounds.

The first question to be addressed, said the Justices, was whether any mentally incompetent person could be held liable for injuries arising from their actions. Indiana law had long been settled on that question, with a 1942 case holding that a defendant could not be liable for damages unless he could have knowledge of the danger or peril. But, said the Justices, an incompetent adult should be liable for his actions, in order to encourage his caretakers to supervise him properly and to prevent defendants from feigning incompetence to avoid liability.

Although Mr. Rusk would ordinarily be liable for causing Ms. Creasy’s injuries, the court also noted that there were strong public policy reasons for not imposing liability in this case. Since Ms. Creasy was hired to provide care precisely because of Mr. Rusk’s combativeness, and since she was actually aware of his propensity to be aggressive, she was not allowed to proceed with her lawsuit against Mr. Rusk. The dismissal of her lawsuit against Mr. Rusk was allowed to stand. Creasy v. Rusk, June 14, 2000.

The result in Ms. Creasy’s case is the same as that reported on in an earlier case in Elder Law Issues. In 1996, the Wisconsin Supreme Court reached much the same conclusion in Gould v. American Family Mutual Insurance Co., as described in Elder Law Issues Volume 3, Number 38.

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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.