An attorney for a Winston-Salem assisted-living facility is asking a judge to order arbitration in a lawsuit filed in response to an incident where three former employees were accused of inciting two female residents to fight each other.
Michael D. Phillips, an attorney for Danby House, filed a motion Dec. 29 to compel arbitration and to either dismiss or stay the lawsuit.
Attorneys for Betty Elaine Moore, a 75-year-old resident at Danby House, filed the lawsuit Oct. 14 in Forsyth Superior Court against Danby House LLC; ALG Senior LLC, which operates Danby House; and the three women who were criminally charged in the incident that happened on June 19, 2019. Those women are Marilyn Latish McKey, 33; Tonacia Yvonne Tyson, 22; and Tanesha Deshawn Jordan, 27, who are all facing charges of assaulting an individual with a disability.
Forsyth County prosecutors allege that the three women encouraged Moore and a 71-year-old resident to fight each other. The lawsuit alleges that the three women shared videos of the fight with other people, some of whom posted one of the videos to YouTube. The lawsuit alleges that the 71-year-old resident repeatedly hit Moore and choked her and that officials at Danby House did not immediately contact the Winston-Salem police when notified of the incident.
The lawsuit makes several claims, including negligent hiring, supervision and retention and medical negligence.
In the motion, Phillips said Moore was admitted as a resident on Oct. 24, 2018, and her sister, Pamela Duncan, signed a Resident Agreement on Moore's behalf that included an addendum. That addendum said that "parties voluntarily agreed to resolve all disputes, claims or controversies between them through arbitration in accordance with the North Carolina Revised Uniform Arbitration Act."
"Plaintiff's lawsuit alleges a disputed claim against Defendants arising from the residency and services provided to Ms. Moore pursuant to the Resident Agreement while she was a resident at Danby House," Phillips said in court papers.
Phillips said a judge should enter an order requiring Moore to submit all her claims to a binding arbitration process and that the lawsuit either be dismissed or stayed pending arbitration.
Daniel Donavan, an attorney for Moore, said he expected the motion and has no problems going into arbitration, saying doing so cuts down on the bureaucratic red tape found in civil litigation.
"The fact pattern (regarding) the behavior of the people who were employed is just egregious, and that's going to resonate with an arbitration panel just as it would with a jury," Donavan said Wednesday.
He said it would take six to eight months to schedule a hearing before a three-person arbitration panel. The case could be resolved before getting to a hearing, he said.
According to a search warrant, Jordan recorded the fight and shared it with others. Tyson recorded a second incident in which McKey is alleged to have pushed Moore into her room. That video was also shared, the search warrant said.
The lawsuit alleges that the three workers did not intervene in the fight and failed to notify supervisors. According to a search warrant, Alexandria Johnson, an employee, contacted police on June 21, 2019, the same day that a staff meeting was held during which Brooke Wood, regional vice president of operations for what was then known as Affinity Living Group LLC, talked about the incident.
Danby House issued this statement after the lawsuit was filed: "While we traditionally do not comment on pending litigation, and have not been served with a copy of the complaint, this was an isolated incident of criminal misconduct by three former Danby House employees. Danby House does not, and has never, condoned such egregious misconduct, which is contrary to the training, policies and values of this community. At all times, Danby House has fully cooperated with law enforcement and will continue to do so."
After the incident, the N.C. Department of Health and Human Services barred Danby House from admitting new residents because of numerous patient-care deficiencies. The deficiencies, laid out in documents filed last year, said that employees were not properly trained and that they failed to administer medications to residents as prescribed by a doctor. NCDHHS also found evidence that employees allowed, and in some cases encouraged, the residents to fight. The employees videotaped some of the fights because they didn't like one of the residents involved.
Danby House has had a history of having deficiencies, according to records with the N.C. Department of Health and Human Services. As of Sept. 29, Danby House did not have any deficiencies.
The lawsuit is seeking at least $25,000 in compensatory damages and an unknown amount of punitive damages.