By James Hanlon
Leader Staff Writer
A lawsuit against Independence Village of Oxford has joined the list of cases awaiting argument before the Michigan Supreme Court. The case concerns an 89-year-old resident of Independence Village senior living facility who died a few weeks after she was found standing outside the facility wearing only a nightgown, in December 2013.
Viriginia Kermath moved in to Independence Village in 2010 after she was diagnosed with dementia in 2009. Her physical and mental condition deteriorated while living at the facility, court documents said.
Kermath left her apartment in the early morning December 15, 2013, without her keys, and exited the building through a side-exterior door that automatically locks. She was outside for approximately 14 minutes in five degree temperatures. Hypothermia and frostbite contributed to her death a few weeks later.
Cosette Rowland, personal representative of the estate of Virginia Kermath, sued Independence Village of Oxford LLC, Unified Management Services and Senior Village Management. Rowland’s complaint alleged Independence Village breached their duty of care by “negligently and recklessly failing to monitor and/or protect doorways and exits at all times so as to prevent an elderly, confused resident from being locked out of the building.”
Oakland County Circuit Court and Michigan Court of Appeals both ruled in favor of Independence Village, saying “it was not foreseeable that Virginia would wander outside at night in December, wearing just her nightgown and without her keys.”
The Supreme Court will reconsider whether the alleged harm was foreseeable and whether Independence Village had a duty to monitor and secure all exits and entrances. The case could set new precedent in senior housing law.
The Michigan Association for Justice (MAJ), an organization of attorneys dedicated to promoting social justice, filed a brief in January, supporting the application to appeal the case. “The past decades have witnessed significant growth in the industry of caring for our aged,” the brief stated. “Yet there is virtually no legal authority on the relationship between unlicensed facility operators and residents. This is an unexplored area of law touching upon, at least potentially, every Michigan citizen with a relative in a senior care facility or who may themself some day live there.”
Independence Village’s attorneys filed a brief in response, saying the MAJ “offered overbroad assertions without any supporting citations.” It denied the case presents “an unexplored area of law” and argued “Michigan statutory and administrative law already provides significant coverage addressing protections for Michigan seniors who place themselves, or are placed, in supervised care settings.”
Rowland must file a brief addressing the appeals court’s judgements by Sept. 7, 2021. The court will schedule oral arguments at a later date.
The court order said Supreme Court Justice Richard Bernstein would not participate because he has a family member with an interest that could be affected by the proceeding.