Who would be responsible for lost or stolen property at an assisted living facility?

Full Question:

I was in ICU and transferred to an assisted living/nursery home. My bottom denture was on the night table and someone threw it away. The scheduled dentist would visit the facility periodically and was told to discuss the means of reimbursement, but he never came to my room. The contact person that I would call to remind them to settle as I was leaving said more than once that she would get back to me. She never did. I'm at a new facility now and would like to request a new bottom plate that is reinforced with porcelain. The lost one was of plastic and food and gum sticks to them. Also because of the amount of weight that I lost they have to be realigned. Can you help me?
02/27/2009   |   Category: Personal Property   |   State: California   |   #15387

Answer:

You might consider checking with the theft and loss program of the facility or contact your insurance provider for replacement of your denture. The following is general information regarding theft and negligence, as well as California statutes.

Generally, a person commits the crime of theft of property if he or she knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property; knowingly obtains by deception control over the property of another, with intent to deprive the owner of his or her property; or knowingly obtains or exerts control over property in the custody of a law enforcement agency which was explicitly represented to the person by an agent of the law enforcement agency as being stolen. Without proof of intent to deprive, no criminal act has occurred. There must be an element of dishonesty which may be revealed from the words or actions of the perpetrator. The California Supreme Court has held that proof that a defendant intended to take property only temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment, satisfies the intent element of a theft prosecution in California.

To be convicted of theft by taking someone must unlawfully take, appropriate or carry away any property of another with intent of depriving him of the property. A person commits the offense of theft by receiving if he or she receives, retains, or disposes of stolen property of another person that he/she knew or should have known was stolen. Theft is often classified into degrees of misdemeanors or felonies carrying varied penalties according to the value of the item stolen.

Every person is responsible for injury to the person or property of another, caused by his or her negligence. Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. A person is negligent if he fails to act as an ordinarily prudent person would act under the circumstances. What constitutes negligence will depend on the facts of each individual case. Generally, a trier of fact needs to determine what a "reasonable" person would do or not do in the given situation. After determining whether or not negligence exists, a trier of fact may decide whether there were any applicable defenses to negligence, such as assumption of the risk, etc. Negligence is an actionable tort. This means that if one person's carelessness causes another personal injury, the injured party may sue to recover damages (money) for his or her injuries.

The following are California statutes:

§ 1569.153 Health & Safety.

A theft and loss program shall be implemented by the residential
care facilities for the elderly within 90 days after January 1,
1989. The program shall include all of the following:

(a) Establishment and posting of the facility's policy regarding
theft and investigative procedures.

(b) Orientation to the policies and procedures for all employees
within 90 days of employment.

(c) Documentation of lost and stolen resident property with a value
of twenty-five dollars ($25) or more within 72 hours of the discovery
of the loss or theft and, upon request, the documented theft and loss
record for the past 12 months shall be made available to the State
Department of Social Services, law enforcement agencies and to the
office of the State Long-Term Care Ombudsman in response to a
specific complaint. The documentation shall include, but not be
limited to, the following:

(1) A description of the article.


(2) Its estimated value.


(3) The date and time the theft or loss was discovered.


(4) If determinable, the date and time the loss or theft occurred.


(5) The action taken.

(d) A written resident personal property inventory is established
upon admission and retained during the resident's stay in the
residential care facility for the elderly. Inventories shall be
written in ink, witnessed by the facility and the resident
or resident's representative, and dated. A copy of the written
inventory shall be provided to the resident or the person acting on
the resident's behalf. All additions to an inventory shall be made
in ink, and shall be witnessed by the facility and the resident
or resident's representative, and dated. Subsequent items brought into
or removed from the facility shall be added to or deleted from the
personal property inventory by the facility at the written request
of the resident, the resident's family, a responsible party, or a person
acting on behalf of a resident. The facility shall not be liable for
items which have not been requested to be included in the inventory
or for items which have been deleted from the inventory. A copy of a
current inventory shall be made available upon request to the
resident, responsible party, or other authorized representative. The
resident, resident's family, or a responsible party may list those
items which are not subject to addition or deletion from the
inventory, such as personal clothing or laundry, which are subject to
frequent removal from the facility.

(e) Inventory and surrender of the resident's personal effects and
valuables upon discharge to the resident or authorized representative
in exchange for a signed receipt.

(f) Inventory and surrender of personal effects and valuables
following the death of a resident to the authorized representative in
exchange for a signed receipt. Immediate written notice to the
public administrator of the county upon the death of a resident
whose heirs are unable or unwilling to claim the property as
specified in Chapter 20 (commencing with Section 1140) of Division 3
of the Probate Code.

(g) Documentation, at least semiannually, of the facility's efforts
to control theft and loss, including the review of theft and loss
documentation and investigative procedures and results of the
investigation by the administrator and, when feasible, the resident
council.

(h) Establishment of a method of marking, to the extent feasible,
personal property items for identification purposes upon admission
and, as added to the property inventory list, including engraving
of dentures and tagging of other prosthetic devices.

(i) Reports to the local law enforcement agency within 36 hours
when the administrator of the facility has reason to believe resident
property with a then current value of one hundred dollars ($100)
or more has been stolen. Copies of those reports for the preceding 12
months shall be made available to the State Department of Social
Services and law enforcement agencies.

(j) Maintenance of a secured area for residents' property which is
available for safekeeping of resident property upon the request
of the resident or the resident's responsible party. Provide a lock for
the resident's bedside drawer or cabinet upon request of and at the
expense of the resident, the resident's family, or authorized
representative. The facility administrator shall have access to the
locked areas upon request.

(k) A copy of this section and Sections 1569.152 and 1569.154 is
provided by a facility to all of the residents and their responsible
parties, and, available upon request, to all of the facility's
prospective residents and their responsible parties.

(l) Notification to all current residents and all new residents,
upon admission, of the facility's policies and procedures relating to
the facility's theft and loss prevention program.

(m) Only those residential units in which there are no unrelated
residents and where the unit can be secured by the resident
or residents are exempt from the requirements of this section.

§ 484 Penal

(a) Every person who shall feloniously steal, take, carry, lead,
or drive away the personal property of another, or who shall fraudulently
appropriate property which has been entrusted to him or her, or who shall
knowingly and designedly, by any false or fraudulent representation
or pretense, defraud any other person of money, labor or real or personal
property, or who causes or procures others to report falsely of his
or her wealth or mercantile character and by thus imposing upon any person,
obtains credit and thereby fraudulently gets or obtains possession
of money, or property or obtains the labor or service of another, is guilty
of theft. In determining the value of the property obtained, for the
purposes of this section, the reasonable and fair market value shall be
the test, and in determining the value of services received the contract
price shall be the test. If there be no contract price, the reasonable
and going wage for the service rendered shall govern. For the purposes
of this section, any false or fraudulent representation or pretense made
shall be treated as continuing, so as to cover any money, property
or service received as a result thereof, and the complaint, information
or indictment may charge that the crime was committed on any date during the
particular period in question. The hiring of any additional employee
or employees without advising each of them of every labor claim due and
unpaid and every judgment that the employer has been unable to meet shall
be prima facie evidence of intent to defraud.

(b)
(1) Except as provided in Section 10855 of the Vehicle Code,
where a person has leased or rented the personal property of another
person pursuant to a written contract, and that property has a value
greater than one thousand dollars ($1,000) and is not a commonly used
household item, intent to commit theft by fraud shall be rebuttably
presumed if the person fails to return the personal property to its owner
within 10 days after the owner has made written demand by certified
or registered mail following the expiration of the lease or rental agreement
for return of the property so leased or rented.

(2) Except as provided in Section 10855 of the Vehicle Code, where a
person has leased or rented the personal property of another person
pursuant to a written contract, and where the property has a value no
greater than one thousand dollars ($1,000), or where the property is a
commonly used household item, intent to commit theft by fraud shall be
rebuttably presumed if the person fails to return the personal property
to its owner within 20 days after the owner has made written demand by
certified or registered mail following the expiration of the lease
or rental agreement for return of the property so leased or rented.

(c) Notwithstanding the provisions of subdivision (b), if one presents
with criminal intent identification which bears a false or fictitious
name or address for the purpose of obtaining the lease or rental of the
personal property of another, the presumption created herein shall apply
upon the failure of the lessee to return the rental property at the
expiration of the lease or rental agreement, and no written demand for
the return of the leased or rented property shall be required.

(d) The presumptions created by subdivisions (b) and (c) are
presumptions affecting the burden of producing evidence.

(e) Within 30 days after the lease or rental agreement has expired, the
owner shall make written demand for return of the property so leased
or rented. Notice addressed and mailed to the lessee or renter at the
address given at the time of the making of the lease or rental agreement
and to any other known address shall constitute proper demand. Where the
owner fails to make such written demand the presumption created by
subdivision (b) shall not apply.

§ 485 Penal

One who finds lost property under circumstances which give him
knowledge of or means of inquiry as to the true owner, and who
appropriates such property to his own use, or to the use of another person
not entitled thereto, without first making reasonable and just efforts to
find the owner and to restore the property to him, is guilty of theft.