Tholen v. Assist America, Inc.

Background

Richard H. Tholen sued Assist America, Inc., asserting negligence, breach of contract implied in fact, and breach of contract as a third-party beneficiary. Tholen had been an Assist America member in 2015 and sought its help after severely injuring his right knee while ziplining in Mazatlán, Mexico.

Tholen’s initial treatment included X-rays and placement of a hard cast from his groin to his toe. Tholen and his wife, Mary Jane “Sami” Tholen, contacted Assist America about returning him home for treatment. During a call, medical coordinator Clifton Sukhu spoke with the treating physician through an interpreter and concluded that Tholen was receiving appropriate treatment at the Mexican hospital. Assist America declined to provide evacuation and discouraged the Tholens from moving him, stating that transportation could put him at risk. Assist America representatives later again refused to arrange evacuation.

The Tholens purchased commercial airline tickets and traveled to Minnesota. Tholen underwent multiple surgeries, and his right leg was eventually amputated above the knee. He claimed extensive rehabilitation, pain and suffering, financial loss, and loss of enjoyment of activities. Assist America’s clinical directors later determined that it would be safe for Tholen to travel, but characterized the decision whether to provide evacuation as administrative.

Assist America’s Motion

Assist America moved for summary judgment. Summary judgment is appropriate when no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. Assist America argued that Tholen’s negligence claim failed because it owed him no duty beyond the contract, that Tholen could not prove proximate cause, and that punitive damages were unavailable without an independent tort.

Tholen responded with Assist America’s customer-facing materials, internal policies and procedures, and reports from four medical experts. He argued that Assist America voluntarily assumed a duty of care and breached it by failing to adequately investigate or monitor his treatment and by refusing to provide evacuation when it knew or should have known that his health was at serious risk.

Negligence: Duty and Breach

Under Minnesota law, negligence requires proof of a duty, breach of that duty, injury, and proximate causation. A contract does not necessarily prevent a separate negligence duty from arising. A party that undertakes to provide services for another’s protection may have to use reasonable care, particularly when the person relies on the undertaking.

The court concluded that the record showed Tholen relied on Assist America’s services and that Assist America knew of that reliance. Assist America did more than simply decline to transport Tholen: its representative assured the Tholens that the hospital could provide appropriate care and advised that moving Tholen could endanger him.

The court held that important questions remained about whether Assist America owed a duty of the type Tholen alleged and what the scope of that duty was. The parties’ experts strongly disagreed about the medical judgments involved, including what symptoms should have raised concerns about Tholen’s condition and possible outcomes. Resolving those disputes would require weighing evidence and credibility, which is the role of a fact-finder. The court therefore found summary judgment inappropriate on foreseeability and the scope of the duty.

Proximate Cause

Proximate cause means that the alleged breach was a substantial factor in causing the injury. The court explained that causation is usually a question for the jury unless the plaintiff cannot show a plausible connection between the alleged breach and the injury.

Tholen’s experts connected both the treatment he received in Mexico and the delay in obtaining what they considered superior care in the United States to his poor outcome. Although Assist America’s experts might persuade a jury otherwise, the court found it reasonable at the summary-judgment stage to conclude that Assist America’s refusal to arrange emergency evacuation caused Tholen’s amputation and related damages. Summary judgment was therefore inappropriate on negligence.

Punitive Damages

Punitive damages require clear and convincing evidence that the defendant acted with deliberate disregard for the rights or safety of others. The court had previously found prima facie evidence—evidence sufficient to support the claim at that stage—that Assist America acted with such disregard.

The court found that Tholen had presented enough evidence to continue pursuing punitive damages. The evidence included Tholen’s reports of a severe injury and alarming symptoms; Assist America’s assurances about the hospital without verifying its capabilities; the representatives’ failure to obtain detailed information about his condition, treatment, or vascular care; their knowledge of the language barrier; and their failure to offer transportation to a facility capable of providing higher-quality care. If believed by a jury, the court stated, this evidence was sufficient to meet the standard for punitive damages.

Breach of Contract

A breach-of-contract claim requires formation of a contract, the plaintiff’s performance of required conditions, and the defendant’s breach. Assist America did not argue that Tholen failed to satisfy a condition required to receive the services, and it conceded that Tholen was an intended third-party beneficiary of its contract with the American Medical Association.

The court found that Tholen had supported his claimed entitlement to services with Assist America’s own materials and had alleged significant damages from the failure to provide emergency evacuation. The court therefore concluded that Tholen had adequately alleged a breach of contract.

Disposition

The court found that factual issues remained regarding negligence and breach of contract and that Tholen had sufficient evidence to advance his punitive-damages claims. It denied Assist America’s motion for summary judgment.