A Douglas County judge has dismissed three of eight claims in a lawsuit filed against Brandon Woods at Alvamar alleging an 87-year-old resident was sexually assaulted and staff members acted to conceal it.
Attorneys for both sides said Chief District Judge Robert Fairchild’s recent ruling was positive, although they acknowledged it was only one step in the legal process.
The family of Jean Allen filed the suit in January alleging a nursing aide, who is not named in the suit, assaulted Allen in October 2010 when she was in hospice care and that staff members at the retirement center attempted to conceal it from her family members, medical personnel and police. Her family moved Allen to a different facility after the alleged incident, and she died in November 2010.
“The Allen family is pleased that they will have an opportunity to present their claims to the court,” Lawrence attorney Bill Skepnek said. “They are very serious, significant claims.”
Officials at Brandon Woods, 1501 Inverness Drive, have denied the suit’s claims and said Allen was protected while in their care.
“Our client is pleased that the motion to dismiss, which is one of the first stages in the litigation process, resulted in the dismissal of certain causes of action,” said Jim Nordstrom, an attorney with Fisher Patterson Sayler and Smith, LLC of Overland Park, representing Brandon Woods. “Our client is fully prepared to vigorously contest both the factual and legal allegations before the court as we move ahead.”
• An allegation Brandon Woods violated the Kansas Consumer Protection Act because he found Allen was considered the “consumer” in the case and not her family members, so the claim abated with her death.
• A claim Brandon Woods breached its fiduciary duty with Allen’s family after her husband signed a contract for her care. The judge found the claims were covered in a separate negligence claim in the suit.
• A battery tort claim against Brandon Woods about the alleged assault because “vicarious liability does not extend to an act of an employee motivated by a purpose personal to the employee.”
Fairchild did allow five other claims to go forward. They are allegations of fraud, civil conspiracy, negligence, infliction of mental or emotional distress and a claim Brandon Woods employees destroyed possible evidence when they gave Allen a bath the day before she was taken to the hospital for an examination. No one was ever criminally charged in connection with the sexual assault allegation.
Attorneys for Brandon Woods are expected to soon file a response to the remaining five claims in the suit, and then the case would likely proceed with depositions and discovery.