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Zebley v. Heartland Industries of Dawson

November 12, 2010

JEANENE ZEBLEY, INDIVIDUALLY AND AS SURVIVING MOTHER ON BEHALF OF FALLON ZEBLEY, APPELLANT,
v.
HEARTLAND INDUSTRIES OF DAWSON, INC., APPELLEE.



Appeal from the United States District Court for the District of North Dakota.

The opinion of the court was delivered by: Riley, Chief Judge.

Submitted: May 13, 2010

Before RILEY, Chief Judge, LOKEN and MURPHY, Circuit Judges.

Fallon Zebley (Fallon), a young woman with mental disabilities, died after she jumped from the fifth-floor fire escape on a building in Fargo, North Dakota. At the time of her death, Fallon was under the care and supervision of Heartland Industries of Dawson, Inc. (Heartland), a licensed non-profit day training, habilitation, and employment services provider. Fallon's mother, Jeanene Zebley (Zebley), brought this wrongful death action against Heartland. A jury returned a verdict in Heartland's favor. The district court*fn1 denied Zebley's post-trial motion attacking the jury's verdict. Zebley appeals. We affirm.

I. BACKGROUND*fn2

A. Fallon and the Team

Fallon was born in 1981. In 1997, Fallon contracted encephalitis. Following four months in a coma, Fallon emerged from the coma with severe brain damage. Fallon's brain injuries resulted in unpredictability, poor judgment, impulsivity, suicidal ideations, seizures, and poor balance and gait. When Fallon became agitated, her unpredictability, poor judgment, and impulsivity worsened. Fallon did not understand the consequences of her actions, avoided responsibility and undesirable activities, sought attention through negative means, and was verbally aggressive and argumentative when "asked to do things she [did] not want to do."

Various organizations helped Zebley and her husband care for Fallon after her brain injury. Heartland provided Fallon with supported employment services, including a "job coach." Divine House provided residential support and maintained Fallon's residence, an apartment in Moorhead, Minnesota. SOLUTIONS Behavioral Healthcare Professionals, Inc. (Solutions) provided behavioral management services. Representatives from each of these organizations, along with Zebley's parents and a representative of Clay County, Minnesota, constituted Fallon's interdisciplinary team (team).

B. The RMAP and the BPP

The team identified various risks Fallon might encounter in life and approved two plans designed to minimize Fallon's exposure to those risks. Heartland developed Fallon's Risk Management and Assessment Plan (RMAP), and Solutions created Fallon's Behavior Program Protocol (BPP).

The RMAP, which detailed Fallon's mental and physical impairments, instructed Fallon's care providers to "verbally and physically redirect Fallon as needed to assure her safety." The RMAP elaborated, "If Fallon engages in behavior that jeopardizes her safety (i.e. walks away from staff...) staff may need to physically intervene and if necessary follow... policies on emergency control procedures."

The BPP provided Fallon's care providers with detailed guidance on how to respond if Fallon exhibited certain behaviors. For outbursts in the workplace, the BPP generally advised:

When Fallon becomes agitated and argumentative she will be given one verbal prompt to find a quiet place to calm down.... She will be given no longer than 30 minutes to calm and comply with the staff's request to process the incident,[*fn3 ] due to vocational time constraints at her job site. If, after 30 minutes, Fallon is not calm and refusing to process, her vocational staff will contact [Aaron Benson, Heartland's Fargo-Moorhead Site Coordinator and Fallon's Qualified Mental Retardation Professional] and [Fallon's] residential Program Coordinator to inform them that Fallon be returned to her apartment.

In the event of a "physical outburst," including "running away" or "throw[ing]... items," the BPP instructed Fallon's job coach to immediately disengage from Fallon so long as Fallon was not in danger. Christine Bietz, M.S., who authored the BPP for Solutions, believed "physical intervention wasn't really appropriate unless there was an extreme health or safety risk." In case of danger, the BPP advised Fallon's job coach to assess whether verbal or physical intervention was appropriate under the circumstances. For example, the job coach might verbally prompt Fallon to "calm" in a quiet and safe place. If the job coach was uncomfortable attempting to intervene without assistance from other staff members, the BPP recommended the job coach contact Solutions or a supervisor.

C. Supported Employment

Heartland employed Fallon as an apartment cleaner and trained Malena Rock to supervise Fallon while Fallon worked at various worksites in the Fargo-Moorhead area. Rock started working for Heartland as Fallon's one-on-one job coach in August 2004. Rock's duties included supervising Fallon's work, assisting Fallon if she needed help, keeping Fallon always within eyesight, motivating Fallon, ensuring Fallon's safety, and processing with Fallon after Fallon behaved improperly.

Rock and Fallon enjoyed a good working relationship, and Fallon improved substantially under Rock's tutelage. Fallon stopped "eloping" from worksites and acting out physically, and her behavioral problems and need for processing substantially diminished. Rock was Fallon's best job coach, and served in that role longer than any other person. Rock was calm, thorough, and consistent, and Fallon craved consistency. Rock became very familiar with Fallon and utilized the RMAP and BPP to ensure Fallon's safety.

As of 2005, there was no identified acute risk Fallon would commit suicide. Neither the RMAP nor the BPP specifically required Fallon's care providers to intervene with physical force to prevent Fallon from using stairs, balconies, or fire escapes. Fallon had not fallen down stairs-intentionally or accidentally-since 2001 or 2002. She lived in a second-floor apartment with access to a balcony and routinely worked in multi-level buildings, including the six-story Ivers Building in downtown Fargo.

Heartland inspected the Ivers Building for safety. Rock believed the Ivers Building's six-floor fire escape presented "challenges" in light of Fallon's unsteady gait and history of falling down stairs. The fire escape "scare[d]" Rock, who feared Fallon "could get out there, [Rock] would not be in a position to deal with [Fallon,] and something bad could happen." Rock worried Fallon might fall, resulting in serious injury or death. Unbeknownst to the rest of the team, however, Rock and Fallon "cooled off" on the fire escape on hot days.

D. Death

On February 6, 2006, Rock picked up Fallon and drove her to the Ivers Building for work. Fallon was in a good mood, joking, laughing, and talking about the future. After they arrived, Fallon noticed some of the Ivers Building's resident employees were having a meeting. Fallon complained she was the only person working in the building and that was not fair. Rock verbally redirected Fallon. Rock ...


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