ESTATE OF JAMES BURNS, ETC. VS. CARE ONE AT STANWICK, LLC (L-2044-17, BURLINGTON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1344-20
ESTATE OF JAMES BURNS,
by and through BRIAN BURNS,
EXECUTOR,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, June 15, 2021
APPELLATE DIVISION
v.
CARE ONE AT STANWICK, LLC
d/b/a CARE ONE HARMONY
VILLAGE AT MOORESTOWN
and CARE ONE, LLC,
Defendants-Appellants.
______________________________
Argued April 27, 2021 – Decided June 15, 2021
Before Judges Fisher, Gilson and Gummer.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Burlington
County, Docket No. L-2044-17.
Anthony Cocca argued the cause for appellants (Cocca
& Cutinello, LLP, attorneys; Anthony Cocca and
Katelyn E. Cutinello, of counsel and on the briefs).
Jonathan F. Lauri argued the cause for respondents
(Stark & Stark, attorneys; Denise Mariani and Jonathan
F. Lauri, of counsel and on the briefs).
Herbert Kruttschnitt, III, argued the cause for amicus
curiae New Jersey Defense Association (Dughi, Hewitt
& Domalewski, attorneys; Herbert Kruttschnitt, III and
Ryan Alan Notarangelo, of counsel and on the brief).
Sherry L. Foley argued the cause for amicus curiae New
Jersey Association for Justice (Foley & Foley,
attorneys; Sherry L. Foley and Timothy J. Foley, on the
brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
In this interlocutory appeal, we consider whether inhabitants of an assisted
living residence may assert a private cause of action for the facility's alleged
breach of their statutory bill of rights. After closely analyzing the statutes
applicable to assisted living residences as well as other legislative enactments
for similar facilities, we conclude the Legislature did not intend to create a
private cause of action despite having done so in similar circumstances; we also
decline the invitation to incorporate such a private cause of action into the
common law.
I
James Burns was eighty-eight years old when admitted to Care One
Harmony Village at Moorestown on December 29, 2014. He had a history of
Lewy body dementia, a disorder that has mental and physical effects. Burns was
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transferred to another facility for long-term care on September 6, 2015, and died
eleven days later. His estate commenced this wrongful death action on
September 13, 2017, alleging Burns had fallen several times and developed
pressure ulcers and infections during his stay at Care One, 1 and that he died
because of the substandard care Care One provided.
In the complaint, plaintiff asserts claims sounding in negligence and
intentional torts; it does not allege any statutory causes of action. When
discovery ended in early January 2020, Care One moved for summary judgment,
seeking a determination that plaintiff could not assert a claim based on Care
One's breach of any state or federal statutes or regulations. During oral
argument, plaintiff's attorney confirmed that no statutory or regulatory violation
had been or could be asserted, that plaintiff had only a medical negligence claim
for the alleged treatment Burns received at Care One, and that he anticipated his
experts may refer to a breach of statutes or regulations as evidence of the
applicable standard of care. Care One's motion was denied.
In April 2020, plaintiff moved for partial summary judgment, seeking an
order declaring that Care One is subject to the rights granted those who reside
in a facility falling within the parameters of the Rooming and Boarding House
1
For simplicity's sake, we refer to all defendants as Care One.
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Act, N.J.S.A. 55:13B-1 to -21. Plaintiff also sought a ruling permitting the jury
to consider whether decedent's rights under this Act – the opportunity to
"achieve the highest level of independence, autonomy, and interaction with the
community," N.J.S.A. 55:13B-19(j), and "a safe and decent living environment
and considerate and respectful care that recognizes the dignity and individuality
of the resident," N.J.S.A. 55:13B-19(l) – were violated by Care One. The
Rooming and Boarding House Act expressly authorizes a private cause of action
for enforcement of these and other rights and allows for an award of attorneys'
fees to a prevailing plaintiff. N.J.S.A. 55:13B-20.
The trial judge granted plaintiff's motion, subject to plaintiff proving at
trial that Care One was a facility that, by legislation, allowed plaintiff a priva te
cause of action. The judge concluded that the Rooming and Boarding House
Act, as well as the Dementia Care Home Act, N.J.S.A. 26:2H-148 to -157,
expressed the Legislature's determination that persons suffering from dementia
– like decedent – are vulnerable and in need of protections enhanced by the
existence of a private cause of action for their breach.
In seeking leave to appeal the judge's grant of plaintiff's motion for partial
judgment, Care One argues that it operates an assisted living residence and that
although the Legislature enacted a bill of rights for assisted living residents,
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N.J.S.A. 26:2H-128(b), the Legislature did not expressly incorporate a right to
pursue a private cause of action. We granted leave to appeal.
II
The path through numerous statutes and regulations leading to the
conclusion Care One would have us reach – that a resident or the personal
representative of a resident has no private cause of action for a breach of an
assisted living resident's bill of rights – is not entirely clear. In seeking
illumination, we look to the legislation concerning residential health care
facilities, rooming and boarding houses, dementia care homes, and nursing
homes.
As early as 1953, the Legislature granted the Department of Health or the
Department of Community Affairs, "as appropriate," N.J.S.A. 30:11A-1,
licensing and regulatory authority over the State's "residential health care
facilities," N.J.S.A. 30:11A-3. These facilities were defined, in part, by the fact
that their residents were "not in need of skilled nursing care" and were not to be
given "skilled nursing care." N.J.S.A. 30:11A-1. The Rooming and Boarding
House Act was enacted in 1979 to give the Department of Community Affairs
authority over otherwise unregulated rooming houses and boarding houses. The
Rooming and Boarding House Act incorporated a bill of rights for "residents of
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rooming houses, boarding houses and residential health care facilities," N.J.S.A.
55:13B-17, delineated in N.J.S.A. 55:13B-19.2 This legislation also
affirmatively declared that a resident "shall have a cause of action against any
person committing" a violation of the bill of rights, that
may be brought in any court of competent jurisdiction
to enforce such rights and to recover actual and punitive
damages for their violation. Any plaintiff who prevails
in any such action shall be entitled to recover
reasonable attorney's fees and costs of the action.
[N.J.S.A. 55:13B-21.]
In 1976, the Legislature enacted the Nursing Home Responsibilities and
Residents' Rights Act, N.J.S.A. 30:13-1 to -17, by virtue of having found that
"the well-being of nursing home residents" in this State required "a delineation
of the responsibilities of nursing homes and a declaration of a bill of rights for
such residents." N.J.S.A. 30:13-1. This Act established the many rights of
nursing home residents, N.J.S.A. 30:13-5, and expressly declared that residents'
"shall have a cause of action against any person" violating their rights that would
include the right to "recover actual and punitive damages" and "reasonable
2
N.J.S.A. 55:13B-19 sets forth a bill of rights possessed by "[e]very resident of
a boarding facility." In N.J.S.A. 55:13B-18, the Legislature declared that
"boarding facility" means "rooming house, boarding house or residential health
care facility."
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attorney's fees and costs" incurred by a prevailing plaintiff in such an action,
N.J.S.A. 30:13-8; see also N.J.S.A. 30:13-4.2.
In 1997, the Legislature acted to ensure the protection of the residents of
these three types of facilities – rooming houses, boarding houses, and residential
health facilities – who were afflicted by Alzheimer's disease, dementia or other
related disorders by including definitions of those conditions, see N.J.S.A.
55:13B-3(k) and (l), in the existing legislation and by authorizing the
Commissioner of the Department of Community Affairs to establish standards.
N.J.S.A. 55:13B-6(n).
Nearly twenty years later, in 2016, the Legislature enacted the Dementia
Care Home Act, N.J.S.A. 26:2H-148 to -157. In its definitional provision, this
Act defined the residents of "a dementia care home" as adults "with Alzheimer's
disease and related disorders or other forms of dementia," who also: are
"ambulant with or without assistive devices"; have been "certified by a licensed
physician . . . not in need of skilled nursing care"; and "except in the case of a
person 65 years of age or over, [are] in need of dietary services, superv ision of
self-administration of medications, supervision of and assistance in activities of
daily living, or assistance in obtaining health care services." N.J.S.A. 26:2H -
150(b). This Act further establishes that a resident of a dementia care home
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"shall not be given skilled nursing care while a resident" except in cases of
"emergencies or during temporary illness for a period of one week or less." Ibid.
The Dementia Care Home Act also incorporated a bill of rights for the
residents of those homes, N.J.S.A. 26:2H-154(a), and expressly allows for a
private cause of action on a breach of those rights for both "actual and punitive
damages" as well as the right of a prevailing plaintiff to recover reasonable
attorney's fees. N.J.S.A. 26:2H-154(c).
In 2002, prior to enactment of the Dementia Care Home Act, the
Legislature recognized the existence of "assisted living residence[s]," defining
them as facilities that "provide apartment-style housing and congregate dining."
N.J.S.A. 26:2H-7.15. The Legislature defined "assisted living" as "a
coordinated array of supportive personal and health services, available 24 hours
per day, which promote resident self-direction and participation in decisions that
emphasize independence, individuality, privacy, dignity, and homelike
surroundings to residents who have been assessed to need these services,
including residents who require formal long-term care." Ibid. The Department
of Health, which regulates assisted living residences, has determined that they
must be capable of providing: "assistance with personal care, nursing,
pharmacy, dining, activities, recreational, and social work services to meet the
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individual needs of each resident." N.J.A.C. 8:36-8.2(b). Regulations allow
such facilities to establish programs to meet the needs of residents with
Alzheimer's disease and other forms of dementia, providing individualized care
in light of the cognitive and functional abilities of residents admitted to the
program. N.J.A.C. 8:36-19.
In 2011, as it had with these other types of facilities, the Legislature
enacted a bill of rights for assisted living residents. See N.J.S.A. 26:2H-128(b).
Unlike all its enactments concerning other facilities, the Legislature neither
expressly authorized nor expressly precluded an assisted living resident's right
to pursue a private cause of action for the violation of the rights enumerated in
N.J.S.A. 26:2H-128(b).
III
In considering the parties' arguments – as well as those asserted by amici`
– we acknowledge that the answer to the issues posed is not readily apparent.
Our review of various similar legislation set forth above reveals that the
Legislature, over the course of many decades, repeatedly extended its reach,
encompassed various types of facilities within its protection, and refined its
regulation of residences for the elderly and infirm. To summarize, the
Legislature:
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• in 1953 began regulating "residential health care
facilities";
• in 1976 enacted the Nursing Home
Responsibilities and Residents' Rights Act;
• in 1979 expanded its regulation of "residential
health care facilities" to include rooming and
boarding houses;
• in 1997, folded patients afflicted with
Alzheimer's disease, dementia, and other related
disorders into the protections provided for
residents of residential health care facilities,
rooming houses, and boarding houses; and
• in 2016, began regulating what it described as
dementia care homes.
In all these instances, the Legislature declared bills of rights for residents and
expressly authorized a resident's right to pursue a private cause of action for
violations of those bills of rights. But when it recognized assisted living
residences in 2002 and enacted a bill of rights applicable to those residences in
2011, the Legislature did not expressly authorize private causes of action for
violations of those rights.
By the same token, the Legislature did not prohibit private causes of
actions for assisted living residents. It just didn't say anything about it. There
are two ways a court may proceed in this circumstance. A court might either (a)
adopt into the common law a private cause of action based on the legislative
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policy of protecting the elderly and infirm or (b) ascertain whether, through
application of statutory-interpretation guidelines, the Legislature intended to
create a private cause of action despite its silence.
A
As we have observed, the Legislature was silent about the existence of a
private cause of action for assisted living residents but it was not entirely silent
about its desire to create rights and protect those residents; far from it. The 2011
bill of rights for assisted living residents created forty-two rights that focus on
the retention of their rights: to "independence" and "individuality," N.J.S.A.
26:2H-128(b)(3); to "be treated with respect, courtesy, consideration, and
dignity," N.J.S.A. 26:2H-128(b)(4); to "make choices with respect to services
and lifestyle," N.J.S.A. 26:2H-128(b)(5); to "personalized services and care,"
N.J.S.A. 26:2H-128(b)(1); to "a level of care and services that address the
resident's changing physical and psychosocial status," N.J.S.A. 26:2H-
128(b)(2); and to "retain and exercise all constitutional, civil, and legal rights to
which the resident is entitled by law," N.J.S.A. 26:2H-128(b)(39).
In so many words, plaintiff and amicus New Jersey Association for Justice
argue that we should be responsive to the thrust of these statutes and the
Legislature's establishment of these rights in determining whether or how the
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common law should provide remedies to vindicate these interests. This process
is nothing new. Indeed, it presents an age-old question, as revealed by what
Justice Holmes had to say in similar circumstances while riding the circuit more
than a century ago:
The Legislature has the power to decide what the policy
of the law shall be, and if it has intimated its will,
however indirectly, that will should be recognized and
obeyed. The major premise of the conclusion expressed
in a statute, the change of policy that induces the
enactment, may not be set out in terms, but it is not an
adequate discharge of duty for courts to say: We see
what you are driving at, but you have not said it, and
therefore we shall go on as before.
[Johnson v. United States, 163 F. 30, 32 (1st Cir.
1908).]
Justice Cardozo later restated this concept, asserting it would be "a misfortune
if a narrow or grudging process of construction were to exemplify and perpetuate
the very evils to be remedied"; "[t]here are times," Justice Cardozo observed,
"when uncertain words are to be wrought into consistency and unity with a
legislative policy which is itself a source of law, a new generative impulse
transmitted to the legal system." Van Beeck v. Sabine Towing Co., 300 U.S.
342, 350-51 (1937).
Our approach toward the common law's recognition of new causes of
action in the face of legislative recognition of an important policy but silence in
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the recognition of remedies is not dissimilar. See Jarrell v. Kaul, 223 N.J. 294,
307-08 (2015); In re Resolution of State Comm'n of Investigation, 108 N.J. 35,
40-41 (1987); Renz v. Penn Central Corp., 87 N.J. 437, 456 (1981); Haynes v.
First Nat'l State Bank, 87 N.J. 163, 188-89 (1981); Lally v. Copygraphics, 85
N.J. 668, 670-71 (1981), aff'g, 173 N.J. Super. 162 (App. Div. 1980); Winslow
v. Corporate Express, Inc., 364 N.J. Super. 128, 137 (App. Div. 2003).
And so, the Legislature's silence about the right of assisted living residents
to bring an action for enforcement of the statutory bill of rights does not, as Care
One argues, end the inquiry. It may, in fact, require no great leap – considering
the Legislature's recognition of a public interest in the care and protection of the
elderly, particularly those lacking the ability to voice their complaints – to
recognize an implied private cause of action for a breach of the assisted living
resident's bill of rights.
In support of such a theory, it would be sensible to view the statutory bill
of rights as establishing, as it states, "rights," not just, as Care One would
apparently have it, mere "suggestions" that a facility would be permitted to
either comply with or not without fear of a resident's pursuit of a civil remedy. 3
3
We are mindful that a facility's failure to abide by the bill of rights may affect
its licensing. See, e.g., Kleine v. Emeritus at Emerson, 445 N.J. Super. 545, 548
n.5 (App. Div. 2016). Additionally, we need not – and therefore do not –
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The very use of the phrase "bill of rights" – an allusion to the first ten
amendments to our federal constitution that limit or prohibit government
intrusion into individual liberties – conjures up for the American mind more
than mere suggestions. Considering this broad creation of rights – both great
and small – it would not be inconsistent with the approach of the common law
that a private cause of action be recognized for a violation of those rights.
B
Looking at the issue as a matter of statutory interpretation, we are
counseled to read statutes sensibly in light of their surroundings and other
similar or even unrelated legislation. See, e.g., Liberty Mut. Ins. Co. v. Land,
186 N.J. 163, 175-76 (2006). The former highest court of this State once said,
"[a] statute must be construed with reference to the entire system of which it
forms a part[;] . . . statutes upon cognate subjects may be considered in arriving
at the legislative intention, though not strictly in pari materia." Modern Indus.
Bank v. Taub, 134 N.J.L. 260, 263 (E. & A. 1946). See also 2B Norman J.
Singer, Sutherland Statutory Construction, § 53:3 (7th ed. 2012) (recognizing
that "the interpretation of a doubtful statute may be influenced by the language
determine whether the Department of Health may sue for the enforcement of this
bill of rights.
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of other statutes which are not specifically related, but which apply to similar
persons, things, or relationships").
The Legislature has repeatedly demonstrated its ability to create private
causes of action and, in this same general context, has chosen to expressly
declare what types of facilities that house the elderly and infirm may be the
subject of a private cause of action for breaching applicable bills of rights and
appended regulations. It would not be outside our general approach toward
statutory interpretation to view the Legislature's silence about private causes of
action against assisted living residences as an ambiguity and to reach a
conclusion that the failure to authorize a private cause of action might have been
an oversight. In this way, a private cause of action could be found by a logical
implication of what the legislation meant, see 2B Sutherland Statutory
Construction, § 55:3 (recognizing that "[i]f a statute creates a right but does no t
indicate expressly the remedy, one is usually implied, and courts may resort to
the common law"), there being no other evidence that the Legislature intended
to treat assisted living residences in a manner different from how it had treated
nursing homes, dementia care homes, residential health care facilities, rooming
houses, and boarding houses.
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C
We are persuaded against either concluding the common law should
recognize a private cause of action or that the Legislature intended to include a
private cause of action in its enactments concerning assisted living residences.
In proceeding in either direction we cannot ignore the legislation concerning
other similar facilities that we have already mentioned. As to each of these types
of facilities, the Legislature expressly declared both a bill of rights and a private
cause of action. It was only when it considered assisted living residences that
the Legislature enacted a bill of rights – nine years later – and, in doing so, said
nothing about whether it intended to create a private cause of action. Moreover,
having departed from the template previously employed in regulating other
facilities, the Legislature later felt the need to expressly declare a private cause
of action when regulating dementia homes. We find its one departure from the
norm to be telling.
When considering the meaning of legislation, we assume the Legislature
is "thoroughly conversant with its own legislation and the judicial construction
of its statutes." Brewer v. Porch, 53 N.J. 167, 174 (1969); see also Lozano v.
Frank DeLuca Constr., 178 N.J. 513, 532 (2004). As the examples we have
provided reveal, the Legislature certainly knows how to authorize private causes
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of action when it desires to do so. We, thus, find meaning when the Legislature
acts differently from what it normally does in similar settings. See State v.
Harper, 229 N.J. 228, 238 (2017). Like the dog that didn't bark in the night, we
are satisfied that by not expressly declaring a private cause of action for assisted
living residents, the Legislature consciously chose not to create one.
This interpretation counsels against the adoption into the common law of
a private cause of action for a breach of N.J.S.A. 26:2H-128. Even though there
is no doubt the Legislature has recognized and acted on a strong public interest
in protecting the elderly and infirm, and even though that legislative recognition
infuses the common law with "a new generative impulse," Van Beeck, 300 U.S.
at 350-51, we should nevertheless tread lightly before pushing the common law
to the recognition of such a new cause of action. In this regard, we must weigh
what we have found to be the Legislature's presumably conscious decision not
to recognize this new cause of action. That circumstance counsels in favor of a
more modest approach.
Analytically, our courts will recognize an implied private cause of action
emanating from legislation by employing a three-part test that asks:
whether the plaintiff is "one of the class for whose
especial benefit the statute was enacted"; whether there
is any evidence that the Legislature intended to create a
private cause of action under the statute; and whether
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implication of a private cause of action in this case
would be "consistent with the underlying purposes of
the legislative scheme."
[State Comm'n of Investigation, 108 N.J. at 41 (quoting
Cort v. Ash, 422 U.S. 66, 78 (1975)); see also Jarrell,
223 N.J. at 307.]
In employing this test here, there is no doubt that decedent falls within the class
of individuals the bill of rights was intended to protect. It also seems likely that
the implication of a cause of action would be consistent with the reason the bill
of rights was enacted. It is the second part of the test, however, that calls into
doubt the soundness of our recognizing a private cause of action.
The Legislature is, as we have already said, presumed to be cognizant of
its existing related laws designed to protect the rights of the elderly and infirm.
But, unlike other circumstances where private causes of action have been
recognized despite legislative silence, the Legislature would be familiar with the
fact that someone like decedent would be entitled to press a negligence claim
against an assisted living residence which has failed to provide proper care.
Additionally, many of the rights delineated in the statutory bill of rights already
present judicially cognizable causes of action without the creation of a private
cause of action for all those enumerated. See, e.g., N.J.S.A. 26:2H-128(b)(16)
(the right to "be free from physical and mental abuse and neglect").
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To be sure, those individuals who are benefited by the statutory bill of
rights likely lack the ability to voice their concerns about their treatment and are
dependent on others for the very reason they reside in these types of facilities.
But we simply cannot ignore that the Legislature was appreciative of that fact
and chose not to expressly recognize a private cause of action despite its contrary
approach in enacting other similar legislation. In short, we find absent the
second part of the applicable three-part test, and in the final analysis, we reject
the argument that the common law should recognize a private cause of action in
this instance.4
4
It may be that the interest in our recognition of a private cause of action is
generated by the statutory authorization – accompanied in the other legislation
we have referred to – of fee-shifting in favor of prevailing plaintiffs. Even if
we were to recognize a private cause of action here, we could not take the further
step of declaring its incorporation of a prevailing plaintiff's right to an award of
fees. Our jurisprudence has long remained committed to the American rule that
litigants bear their own legal fees, Litton Indus., Inc. v. IMO Indus., Inc., 200
N.J. 372, 404 (2009), and the Supreme Court has recognized a "strong public
policy against shifting counsel fees," Innes v. Marzano-Lesnevich, 224 N.J. 584,
592 (2016). A party may be compelled to pay the legal fees of another only: in
those types of cases described by rule, R. 4:42-9(a); when the parties
contractually agree; in other cases falling with recognized and "carefully
limited" exceptions from the American rule, In re Estate of Vayda, 184 N.J. 115,
121 (2005); and when authorized by statute, R. 4:42-9(a)(8). While the Supreme
Court may expand the scope of these American rule exceptions – through either
its rule-making authority or by decisional law that expands the additional fonts
for such an award recognized in cases like Saffer v. Willoughby, 143 N.J. 256,
271 (1996) – other courts cannot.
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The common law may spread to places where the Legislature has not
ventured but not without great and careful consideration for the wisdom of the
extension, lest before long courts and legislative bodies find themselves on
divergent and conflicting paths. If today's judgment is overly cautious or
mistaken about the legislative intent, the Legislature is in the best position to
correct or alter our course. See Plastic Surgery Ctr., P.A. v. Malouf Chevrolet-
Cadillac, Inc., 241 N.J. 112, 113 (2020). Until then, we conclude there is no
private cause of action for the breach of the assisted living facility's bill of rights
contained in N.J.S.A. 26:2H-128(b).
IV
The order states that the grant of Care One's motion for partial summary
judgment is "subject to proof at trial." The meaning of this is revealed by the
judge's oral decision in which, in sum or substance, he distinguished between
assisted living residents who suffer from Alzheimer's, dementia or some other
similar malady, and those who do not. Those in the former class, in the judge's
view, possess a private cause of action; the latter does not. We disagree. There
is nothing in the legislation to reveal an intent to create separate classes of
assisted living residents.
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The judge's oral decision also suggests that if plaintiff can prove Care One
was operating something other than an assisted living residence, a jury could
consider and ultimately find a violation of the bill of rights applicable to that
other type of facility. We reject this position. Care One's facility is governed
by the license issued to it as an assisted living residence. Whether, during
decedent's stay there, Care One was operating something other than that should
be determined only by the Department of Health, which possesses special
expertise in these matters, not by either the trial judge or a jury. See Daaleman
v. Elizabethtown Gas Co., 77 N.J. 267, 269 n.1 (1978). In a circumstance like
this, a court must determine whether the agency has exclusive or primary
jurisdiction. Muise v. GPU, Inc., 322 N.J. Super. 140, 158-59 (App. Div. 2000).
When the claim itself falls within the agency's exclusive jurisdiction, it is subject
to dismissal because of the failure to exhaust administrative remedies. But,
when a court has jurisdiction over the claim and a pivotal aspect presents a
question falling within an agency's expertise, a court will retain jurisdiction, stay
the action, and allow for the agency's determination of that aspect. See generally
Curzi v. Raub, 415 N.J. Super. 1, 20-21 (App. Div. 2010).
In this case we need not decide whether it is exclusive or primary
jurisdiction that the Department of Health would possess over a claim that Care
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One acted other than as licensed because the claim should not proceed in either
event. If the former, dismissal would follow. And, although a finding of
primary jurisdiction would not require dismissal, we are satisfied it is too late
here to allow for a stay and a time-consuming detour into an administrative
proceeding.
Our reason for reaching this conclusion dovetails with Care One's last
argument in which it argued we should bar plaintiff's bill-of-rights claim
because it was not asserted until an extremely late point in the litigation, indeed,
well after plaintiff said in response to an earlier summary judgment motion that
no such claim had been asserted. Although we reject Care One's argument that
the claim is barred by the applicable statute of limitations, 5 plaintiff's delay in
its pursuit of such a claim justifies our conclusion that this nearly four-year-old
litigation should not be further delayed.
***
5
Care One's statute-of-limitations argument is without merit because the
original complaint was timely filed and a bill-of-rights claim would relate back
to the time of the original filing because it arises from the same transactions or
occurrences that gave rise to the allegations in the original complaint. See R.
4:9-3; Harr v. Allstate Ins. Co., 54 N.J. 287, 299-300 (1969).
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The trial court's December 2, 2020 order is reversed. We remand for
further proceedings consistent with this opinion but do not retain jurisdiction.
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