No Liability for Residential Care Facility for Insured Caused by Resident

April 1, 2002

In this suit venued in Orange County, a mother and daughter alleged that, on February 21, 2001, plaintiff Melanie Martinez, a 2-month old child, sustained injuries when Gregory Berthel a 21-year old developmentally disabled man, bit her while they were shopping at a Target Store in Costa Mesa.

Gregory Berthel was a resident of Pierce Adult Residential Care Home, a 24-hour residential care facility, which provides board, care and supervision for adults with developmental disabilities at its facility.

Plaintiffs sued Nelludy, the owner and operator of Pierce, for negligent supervision, premises liability and negligent infliction of emotional distress. Plaintiffs also sued Gregory Berthel, Robert J. Berthel, Target (they settled) and Orange County Regional Center.

The Lanterman Development Disabilities Services Act provides that adults with development disabilities are granted certain rights and are permitted to make their own decisions as well as live a life within a community that approximates the pattern of everyday living.

On Motion for Summary Judgment, Gina E. Och argued that Nelludy did not owe plaintiffs a duty to supervise Gregory Berthel while at Target and under the supervision of his father. Moreover, it was argued that Gregory was an unconserved adult who was responsible for his actions on February 21, 2001. In other words, in addition to their being no duty, Nelludy did not cause the plaintiff's injuries. On February 22, 2002, Judge Andrew B. Banks granted Nelludy Motion for Summary Judgment finding no triable issues of material fact on the matters raised by motion, i.e no duty and no causation.