Pursuing Corporate Overseers On An “Aider And Abettor” Theory Of Liability
As discussed in earlier blogs, affixing liability against an elder care facility’s corporate overseers is critical in elder abuse litigation. This is important morally, as the corporate overseers are invariably responsible for neglect that occurs at the facility because they control key features of facility operations such as staffing, supplies, and staff pay. Securing corporate liability also is important to ensure that corporate defendants are held accountable for their wrongdoing. Typically, the financial benefits of nursing home operators’ ill-conceived plan to maximize profits at the expense of patient care are maintained by the corporate overseers. Thus, a judgment against solely the facility not only may be uncollectible but also will be substantially less than would be available if the corporate defendants were held liable because punitive damages are capped at 10% of the overall net worth of the defendants.
There are many different legal theories elder abuse practitioners can use to pursue corporate overseers in connection with the neglect that their clients suffered while residing in an elder care facility. These theories include, but are not necessarily limited to, direct, joint venture, conspiracy, aider and abettor, and alter ego liability.
This blog addresses pursuing corporate entities under an “aider and abettor” theory of liability. Under the governing jury instruction, any entity that aids and abets another in harming a plaintiff is liable for the wrongdoing alleged. Plaintiffs can contend that the facility engaged in a wrongful scheme to maximize profits at the expense of patient care and that this scheme caused harm to plaintiff.
Plaintiffs can argue that aider and abettor liability against the Corporate Defendants exists if plaintiffs prove the following: (1) the Corporate Defendants knew the facility was engaged in a plan to maximize profits at the expense of patient care, resulting in harm to the plaintiff, (2) the Corporate Defendants gave substantial assistance or encouragement to the facility defendant in this course of conduct; and (3) the Corporate Defendants’ conduct was a substantial factor in causing harm to the plaintiff. CACI 3610.
As to this derivative theory of liability, if the elements necessary to establish it are present, the Corporate Defendants are liable to the same extent as is facility defendant not because of their direct conduct toward the plaintiff but instead because of their relationship with the target facility. See CACI 3610 (if elements of aider and abettor relationship found aiders and abettors liable for harm even if they did not directly cause it).
In our experience few elder abuse practitioners allege aider and abettor liability against the Corporate Defendants likely because this theory is unfamiliar to them. However, it also has been our experience that trial judges are very familiar with this theory of culpability because it comes up often in criminal cases and the great majority of trial judges have presided over numerous criminal trials in their tenure. Thus, despite what defense counsel might think and argue, aider and abettor liability is not a radical or novel theory of liability in the law. Instead, it is well established and is readily understood by judge and juries alike.
The evidence supporting an aider and abettor theory of liability against the corporate defendants would be the very same evidence used to show defendants’ direct, joint venture, and alter ego liability, to wit, evidence that the Corporate Defendants exerted substantial control over the facility defendant and exercised this control in a manner designed to maximize profits. The reader is referred to other blogs that provide more specifics on this evidence.
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