A resident’s fall on an assisted living community’s sidewalk is a healthcare liability claim — not a premises liability claim — according to a state high court.
The Texas Supreme Court recently issued an opinion in the case of Collin Creek Assisted Living Center v. Christine Faber, finding that a resident’ fall on the sidewalk of DaySpring Senior Living was a healthcare liability claim. In its ruling, the court dismissed Faber’s claim, reversed an appellate court judgment and remanded the case to the trial court for an award of attorney’s fees.
As McKnight’s Senior Living previously reported, Faber sued the Plano, TX, assisted living community owned and operated by Collin Creek in 2015 after her mother’s death in 2014. Carmelina “Millie” Smith fell from a walker she was sitting backward on, while being pushed by an employee, when a wheel became stuck in a large crack in the sidewalk. Smith fell and hit her head on the concrete, dying several days later.
Faber’s lawsuit alleged a lack of supervision or training of employees, as well as a failure to enact rules and regulations to ensure the safe transport of residents. She also accused the community of not providing adequate and timely aid. The lawsuit made claims of premises liability — a property owner’s or operator’s legal responsibility for injuries that occur on a property resulting from a dangerous condition — negligence, negligent hiring and emotional distress.
Personal care = healthcare in Texas
Argentum, the American Seniors Housing Association, LeadingAge Texas and the Texas Assisted Living Association filed an amicus brief last fall in support of Collin Creek. In the brief, the organizations explained that assisted living communities are considered healthcare providers under the Texas Medical Liability Act and provide personal care services, which are considered healthcare services in Texas.
“Personal care services include, among other things, assistance with moving, transferring and ambulating, which is what DaySpring’s employee was doing when the wheel of Ms. Smith’s walker got stuck in a sidewalk crack,” the friend-of-the-court brief read.
The brief argued that “artfully crafted premises liability claims” expose assisted living communities — as well as all housing facilities for older adults and disabled individuals in Texas — to liability without Texas Medical Liability Act protections, which would “create an unwelcoming environment for Texas operators.”
Claim winds its way through courts
A trial court initially dismissed the case, agreeing that Collin Creek was a healthcare liability claim and that Faber did not meet a deadline to include an expert report as part of the claim. Faber then amended the petition to remove any claims of active negligence, leaving only premises liability allegations based on the condition of the sidewalk.
A second trial court again dismissed the case, which was affirmed in 2020 by an appellate court panel. The courts ruled that since the lawsuit was a healthcare liability claim under the Texas Medical Liability Act, Faber was required to file an expert report within 120 days of filing suit.
A split appellate court, however, reversed its decision on reconsideration in 2021, ruling that Faber’s petition was not a healthcare liability claim and did not require an expert report. Collin Creek filed a petition for review with the Texas Supreme Court — which heard oral arguments last fall — arguing that Faber’s amended lawsuit did not change the nature of the claims.
