## Facts

- A. Paul Storm, Jr. was admitted to NSL Rockland Place, LLC (Rockland), a licensed assisted-living facility, for rehabilitative care.
- Storm had significant health and functional limits, including alcoholism and a need for mobility assistance to reduce fall risk.
- Before or at admission, Rockland evaluated Storm’s needs and agreed to provide assisted-living services consistent with facility policies and applicable regulation.
- Storm signed a Residency Agreement containing language stating that he assumed the risk of injury while residing at Rockland and purporting to limit Rockland’s liability (at least absent gross negligence or willful misconduct).
- Storm lived at Rockland for about two weeks. During that time, he repeatedly left the facility to obtain alcohol and returned severely intoxicated.
- Storm also refused meals, medications, and treatments on multiple occasions, despite staff awareness of his fall risk and his need for assistance.
- On February 9, 2002, Storm refused breakfast and directed staff to leave him alone. He remained in his room and did not respond later when staff came to check on him.
- Rockland staff found Storm unconscious on his room floor, apparently after a fall while alone for much of the day.
- Storm suffered a severe traumatic brain injury.
- Storm and his wife, Joann Storm, sued Rockland alleging medical negligence and related theories, including loss of consortium.
- Rockland moved for summary judgment, asserting (1) primary assumption of risk based on the Residency Agreement’s waiver language and (2) secondary assumption of risk based on Storm’s conduct, to be addressed as comparative negligence.

## Issues

1. Whether an assisted-living facility/health-care provider may use a residency-agreement waiver and the doctrine of primary assumption of risk to negate its duty and bar claims alleging negligent or substandard care.
2. Whether the resident’s conduct (leaving to drink, intoxication, refusing care) may be considered as secondary assumption of risk under Delaware law, within comparative negligence.

## Decision

- The court denied Rockland’s motion for summary judgment.
- The court held Rockland could not invoke primary assumption of risk, through the Residency Agreement’s exculpatory language, to eliminate its duty and bar claims alleging negligent or substandard health-care services.
- The court ruled that Storm’s conduct could be considered under secondary assumption of risk as part of Delaware’s comparative negligence framework, with fault allocation left for the factfinder.
- Because factual disputes remained on breach, causation, and the parties’ respective fault, the case could not be resolved on summary judgment.

## Legal Principles

- Primary assumption of risk is a duty-based doctrine: when it applies, it negates the defendant’s duty and operates as a complete bar to negligence liability.
- In Delaware, health-care providers (including regulated assisted-living facilities providing health-care services) may not use exculpatory contract terms to disclaim responsibility for providing care consistent with legally required standards.
- Delaware’s statutory and regulatory scheme governing health-care providers reflects a public-policy limit on contractual waivers that would excuse negligent care in a regulated setting serving vulnerable residents.
- Public-policy analysis (including factors commonly associated with the Tunkl approach) supports refusing enforcement of liability waivers where the service is regulated, important to the public, and offered on terms not meaningfully negotiable by the patient/resident.
- Secondary assumption of risk is not a complete bar in Delaware negligence cases; it is treated within comparative negligence, allowing the plaintiff’s conduct to reduce or, if sufficiently predominant, bar recovery under Delaware’s comparative negligence statute.
- Summary judgment is improper where material facts about the defendant’s alleged breach and causation, and about comparative fault, are genuinely disputed.

## Conclusion

The Delaware Superior Court refused to let an assisted-living facility avoid potential liability for alleged negligent care by relying on a residency-agreement waiver and primary assumption of risk, reasoning that regulated health-care duties cannot be contracted away; however, the facility could still argue that the resident’s own choices contributed to the injury under comparative negligence, requiring a jury to resolve disputed facts about fault and causation.


Storm v. NSL Rockland Place, LLC, 898 A.2d 874 (Del. Super. 2005)