IMSUK LEE VS. LA QUINTA HOLDINGS, INC. (L-2909-16, PASSAIC COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3263-17T3
IMSUK LEE, individually, and
in her capacity as General
Administratrix and as Administratrix
Ad Prosequendum of the Estate of
Susie Choi, deceased, and SEONG
GIL CHOI,
Plaintiffs-Appellants,
v.
LA QUINTA HOLDINGS, INC.,
and LA QUINTA INN & SUITES,
Defendants-Respondents,
and
BLOOMFIELD COLLEGE,
Defendant.
______________________________
Submitted January 23, 2019 – Decided February 11, 2019
Before Judges Suter and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-2909-16.
Kim & Bae, PC, attorneys for appellants (Paul I.
Perkins and Leigh Smith, on the briefs).
Traub, Lieberman, Straus & Shrewsberry, LLP,
attorneys for respondents (Matthew Toto, on the brief).
PER CURIAM
In February 2015, twenty-three-year-old Susie Choi (decedent) tragically
passed away after drowning in defendant's pool. In this appeal, plaintiff Imsuk
Lee, the Administratrix Ad Prosequendum of her daughter Susie's estate,1
appeals from a Law Division order granting summary judgment dismissal of the
complaint she filed against defendant La Quinta Inn & Suites. 2 Having
considered the parties' arguments in light of the record and applicable legal
standards, we affirm.
I.
We derive the following facts from the summary judgment record, viewed
in the "light most favorable to plaintiff[], the non-movant[] . . . ." Schiavo v.
Marina Dist. Dev. Co., 442 N.J. Super 346, 366 (App. Div. 2015) (citing
1
Regrettably, decedent's father, plaintiff Seong Gil Choi, passed away after the
lawsuit was filed.
2
Plaintiff does not appeal the order granting summary judgment dismissal of
the complaint as to Bloomfield College. Decedent was an exchange student
housed at the hotel. All references to defendant refer to La Quinta Holdings,
Inc. and La Quinta Inn & Suites.
A-3263-17T3
2
Robinson v. Vivirito, 217 N.J. 199, 203 (2014)). On February 11, 2015, at
approximately 5:05 p.m., decedent was found at the bottom of defendant's
indoor pool by two hotel guests. Efforts undertaken to resuscitate her at the
scene were unsuccessful, and she was transported to St. Mary's Hospital in
Passaic. Upon arrival, she was evaluated and treated, but never regained
consciousness. She passed away two days later at the hospital. The only
medical record provided by plaintiff is a progress note that states, "Rescue [and]
brought here hypothermic. Probable vasovagal syncope 3 while in pool [two
degrees] to EtOH4/hot tub. Became hypothermic (while in pool) with
multiorg[an] failure." The death certificate stated the cause of death was
3
Vasovagal syncope is defined as "the common faint," which is "often triggered
by a combination of dehydration and upright posture. But it can also have an
emotional trigger such as seeing blood . . . ." Health Library, Syncope
(Fainting), John Hopkins Medicine, (Feb. 1, 2019, 3:06 p.m.),
https://www.hopkinsmedicine.org/healthlibrary/conditions/cardiovascular_dise
ases/syncope_fainting_22,Syncope(Fainting).
4
EtOH is the shortened medical abbreviation for "ethyl alcohol." Stedman's
Medical Dictionary 675 (28th ed. 2006). Further the second degree of
intoxication is somewhere between .03 and .12 blood alcohol level. This stage
will present symptoms of "[d]imunition of attention, judgment and control[,]
[b]egin[n]ing of sensory-motor impairment[,] [l]oss in finer performance tests."
Alcohol and the Human Body, Intoximeters (Jan. 31, 2019, 8:15 a.m.),
https://www.intox.com/physiology/.
A-3263-17T3
3
"[a]noxic encephalopathy complicating drowning." 5 The family chose not to
have an autopsy performed due to religious reasons.
Plaintiff alleges that defendant was negligent in failing to comply with
various aquatic safety standards. Following discovery, defendant filed for
summary judgment, arguing plaintiff failed to produce evidence in support of
her claims. After oral argument, the motion judge granted defendant's motion
and set forth his reasons on the record. The judge concluded that defendant did
not violate any aquatic standards relative to pool safety and that plaintiff's
expert, Dr. Thomas Griffiths, rendered net opinions.
On appeal, plaintiff argues that the judge erred in granting summary
judgment because there exist genuine issues of material fact as to whether
defendant acted negligently, by finding that Dr. Griffiths rendered net opinions,
by denying a res ipsa loquitur finding, and by placing undue weight on an
autopsy not having been performed.
5
Anoxia is defined as: "Absence or almost complete absence of oxygen from
inspired gases, arterial blood, or tissues." Stedman's Medical Dictionary 98
(28th ed. 2006). Encephalopathy is defined as: "Any disorder of the brain."
Stedman's Medical Dictionary 637 (28th ed. 2006). Anoxic encephalopathy
"occurs when there is a complete lack of blood flow to the brain." Jennifer E.
Fugate, et al., Anoxic-Ischemic Encephalopathy, Oxford Medicine Online (Jan.
31, 2019, 9:35 a.m.),
http://oxfordmedicine.com/view/10.1093/med/9780190244927.001.0001/med-
9780190244927-chapter-5.
A-3263-17T3
4
II.
We review a ruling on summary judgment de novo, applying the same
standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219
N.J. 395, 405 (2014). Thus, we consider "whether the competent evidential
materials presented, when viewed in the light most favorable to the non-moving
party, are sufficient to permit a rational [fact-finder] to resolve the alleged
disputed issue in favor of the non-moving party." Id. at 406 (quoting Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). "If there is no genuine
issue of material fact, we must then 'decide whether the trial court correctly
interpreted the law.'" DepoLink Court Reporting & Litig. Support Servs. v.
Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL
Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We review issues of
law de novo and accord no deference to the trial judge's conclusions on issues
of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
"To sustain a cause of action for negligence, a plaintiff must establish four
elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and
(4) actual damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo
v. Cty. of Essex, 196 N.J. 569, 585 (2008)). "It is generally plaintiff's burden to
prove not only that defendant was negligent, but also that defendant's negligence
A-3263-17T3
5
was a proximate cause of the injuries and damages suffered." O'Brien (Newark)
Cogeneration, Inc. v. Automatic Sprinkler Corp. of Am., 361 N.J. Super. 264,
274 (App. Div. 2003) (citing Paxton v. Misiuk, 34 N.J. 453, 463 (1961)).
We address plaintiff's argument that the judge erred in finding Griffiths's
reports constituted net opinions. Rule 702 permits expert testimony "if
scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue." N.J.R.E. 702. An
expert opinion may be based on "an opinion or inference . . . perceived by or
made known to the expert at or before the hearing." N.J.R.E. 703. Rule 703
mandates that [an] expert opinion be grounded in "facts
or data derived from (1) the expert's personal
observations, or (2) evidence admitted at trial, or (3)
data relied upon by the expert which is not necessarily
admissible in evidence but which is the type of data
normally relied upon by experts."
[Townsend, 221 N.J. at 53 (quoting Polzo, 196 N.J. at
583).]
The net opinion rule is a "corollary of [Rule] 703 . . . which forbids the
admission into evidence of an expert's conclusions that are not supported by
factual evidence or other data." Id. at 53-54 (quoting Polzo, 196 N.J. at 583).
An expert must provide the "'why and wherefore' that supports the opinion,
'rather than a mere conclusion.'" Borough of Saddle River v. 66 E. Allendale,
A-3263-17T3
6
LLC, 216 N.J. 115, 144 (2013) (quoting Pomerantz Paper v. New Cmty. Corp.,
207 N.J. 344, 372 (2011)). A net opinion, "unsupported by factual evidence, is
inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).
While noting that Griffiths was "one of the more foremost experts in this
area," the judge found that the expert's conclusions did not "bring any genuine
issue of material fact that the standard of care that's applicable to pool safety . .
. was violated by the conditions that existed at [defendant's hotel] at the time of
[decedent's] drowning." Griffiths opined that additional "layers of protection"
"must" be implemented to prevent aquatic emergencies. Defendant, he claims,
"could have" and "should have" included "layers of protection," such as: 1)
educating, warning, and enforcing the ban on solo swimming; 2) providing
"[a]ggressive and effective signage using warning shapes, warning colors, and
warning symbols"; 3) renovating the swimming pool so that it does not exceed
five feet in depth; 4) employing a pool attendant, who does not need to be a
certified lifeguard, to remain on the pool deck in case of an emergency to
perform rescues and resuscitations; 5) adding and extending surveillance
cameras; and 6) "[m]aintain[ing] a buoyant life-line on the surface of the
swimming pool at the breakpoint (five feet) with an accompanying black strip
A-3263-17T3
7
painted on the pool bottom under the life-line." The judge found that defendant
did not violate any standards of care. We agree.
An expert testifying "in negligence cases must establish the actual
standard of care, and may not simply declare their personal preferences or the
conduct they wish to encourage as being the standard." C.W. v. Cooper Health
Sys., 388 N.J. Super. 42, 64 (App. Div. 2006) (citing Fernandez v. Baruch, 52
N.J. 127, 131 (1968)). In his addendum, Griffiths admits that "no New Jersey
required administrative codes were violated by [defendant] in the drowning
incident of [decedent]." He further acknowledges that this State's swimming
pool code does not require buoyant life-lines or warning stripes at the bottom of
a pool.
Griffiths asserted that although New Jersey codes do not require a buoyant
float line, "the standard of care in aquatics indicates reasonably prudent pool
operators should utilize one." He further opined, "[j]ust because New Jersey
does not require these swimming pool safety devices, does not mean they are
not necessary . . . . " Griffiths also erroneously claims "that [S]tate health codes
written for swimming pool safety focus on water quality rather than water
safety," and "lead to the preventable drowning death of [decedent]." His reports
fail to provide the why's and wherefore's to support his opinion that defendant's
A-3263-17T3
8
alleged negligence proximately caused the accident, or how his
recommendations would have prevented this tragedy. Griffiths's opinion that
defendant should have implemented certain safety regulations is insufficient to
be considered that of an expert.
"[T]he admission or exclusion of expert testimony is committed to the
sound discretion of the trial court." Townsend, 221 N.J. at 52. An opinion is
inadmissible if an expert "cannot offer objective support for his or her opinions,
but testifies only to a view about a standard that is 'personal.'" Davis, 219 N.J.
at 410 (quoting Pomerantz, 207 N.J. at 372). Griffiths cites to the American
National Standard for public swimming pools, which provides:
the transitional point of the pool . . . to the shallow area
and from the shallow area to the deep area shall be
visibly set apart with a rope and float line, depth marks,
and a four inch minimum width row of floor tile,
painted line, or similar means of color contrasting with
the bottom.
Industry customs, however, "are not conclusive on the issue of the proper
standard of care; they are at most evidential of this standard." Id. at 411 (quoting
Wellenheider v. Rader, 49 N.J. 1, 7 (1967)). Defendant was in compliance with
all of the safety regulations imposed by this State.
N.J.S.A. 26:4A-5 states that "a specially exempt facility shall be exempt
from mandatory compliance with first aid personnel and lifeguard requirements
A-3263-17T3
9
of N.J.A.C. 8:26-5[.2][6] . . . ." A "specially exempt facility" includes "hotel[s]
. . . that restrict[s] the use of its pool to renters of the lodging units . . . their
invited guests, or day-use visitors . . . ." N.J.A.C. 8:26-1.3. Griffiths
acknowledged that defendant is a "specially exempt facility" and was not
required to hire a lifeguard. Yet, he insisted that the hotel should "place a pool
attendant on the pool deck[,]" to perform housekeeping duties when swimmers
are not in the pool. This is merely his personal opinion.
Moreover, Griffiths claimed that defendant should "educate, warn, and
enforce" its ban on solo swimming. N.J.S.A. 26:4A-6(a) requires exempt
facilities, which voluntarily do not hire a lifeguard, to post a sign "not less than
three feet by four feet," which states: "No lifeguard on duty. Persons under the
age of [sixteen] must be accompanied by an adult. No swimming alone." Ibid.
Hotel signs must also include: "[t]his pool . . . shall be closed when the owner
or manager is not on the premises." Ibid. This sign must be displayed at each
entrance of the swimming area, at the registration desk, and in each room used
for occupancy by hotel guests. Ibid. Griffiths asserts that these signs should
6
N.J.A.C. 8:26-5.2 requires "[a]t least one person currently certified in standard
first aid and professional level infant, child, and adult cardiopulmonary
resuscitation (CPR) . . . shall be on the premises, available, and readily
accessible when the swimming pool is in use."
A-3263-17T3
10
include "warning shapes, warning colors, and warning symbols." Defendant had
multiple signs posted with the required language, in the required places, in
compliance with N.J.S.A. 26:4A-6(a). The statute does not require specific
shapes, or coloring and does not require specially exempt facilities to enforce it.
As indicated in plaintiff's answers to interrogatories, decedent could read,
write, and understand the English language. Griffiths contends that hotel guests
do not read long lists on signs and that an average person will spend three to
five seconds reading a sign. He argues that signs must use warning shapes,
colors, and symbols to be "truly effective." Again, these are his personal
opinions.
Finally, Griffiths's suggestion that defendant should have filled the pool
no higher than five feet, and failed to install surveillance cameras to cover the
entire swimming pool area, are not required by New Jersey law or code.
Griffiths indicated that newly constructed swimming pools are built with a
maximum depth of five feet in order to reduce drowning, while older pools were
traditionally built with diving boards, requiring deeper waters. Because
defendant's pool did not have a diving board at the time of the accident, he
opined that the defendant should have only filled the pool up to five feet. He
further claims that since the pool was not visible from inside the hotel, there
A-3263-17T3
11
should have been surveillance cameras to monitor the entire swimming pool
area. He acknowledged that surveillance is not required by Federal or State law
or code.
We conclude that plaintiff's argument lacks merit. She failed to carry her
burden to produce evidence of facts to support her expert's opinions and the
judge properly found Dr. Griffiths rendered net opinions.
III.
Next we address plaintiff's argument that the judge failed to apply the
doctrine of res ipsa loquitur. A defendant's negligence may be proven through
the doctrine of res ipsa loquitur when: "(a) the occurrence itself ordinarily
bespeaks negligence; (b) the instrumentality was within the defendant's
exclusive control; and (c) there is no indication in the circumstances that the
injury was the result of the plaintiff's own voluntary act or neglect." Buckalew,
87 N.J. at 525 (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 251, 269
(1958)). The burden of proof is on the plaintiff to establish an inference of
negligence.
[T]he existence of a possibility of a defendant's
responsibility for a plaintiffs' injuries is insufficient to
impose liability. In the absence of direct evidence, it is
incumbent on the plaintiff to prove not only the
existence of such possible responsibility, but the
existence of such circumstances as would justify the
A-3263-17T3
12
inference . . . and would exclude the idea that it was due
to a cause with which the defendant was unconnected.
[Szalonotai v. Yazbo's Sports Café, 183 N.J. 386, 399
(2005) (quoting Hansen v. Eagle-Picker Lead Co., 8
N.J. 133, 141 (1951)).]
Plaintiff is unable to prove defendant was negligent, and conceded that it
"compl[ied] with the bare minimum required by law." Unfortunately, there is
no explanation as to the circumstances culminating in decedent's drowning and
demise, only conjecture. Thus, the judge properly determined that plaintiff
could not invoke the res ipsa loquitur doctrine.
IV.
In her final argument, plaintiff claims that the judge erred by considering
the fact that an autopsy was not performed because there was a "consensus"
among the medical professionals that the cause of death was drowning. We
disagree. Plaintiff argues that an autopsy would have been inconclusive because
of "therapy induced" changes resulting from decedent's hospitalization. In
further support of her contention, plaintiff claims that the death certificate,
police report, and the Passaic County Sheriff's Office Crime Scene Investigation
Report prove the cause of death was drowning.
The death certificate, signed by Dr. Eddy Lilavois, stated the cause of
death was, "anoxic encephalopathy complicating drowning[,]" and not simply
A-3263-17T3
13
drowning. The medical record states that decedent "probably" suffered
"vasovagal syncope." These opinions lack foundation and reasonable medical
probability. See Johnesee v. Stop & Shop Cos., 174 N.J. Super. 426, 431 (App.
Div. 1980) (requiring medical expert testimony to be stated "in terms of
reasonable medical certainty or probability" and not mere "possibility.")
We also reject plaintiff's argument that her expert, Dr. Scott LaPoint,
opined that decedent "did not sustain any trauma that would have caused loss of
consciousness . . . [and there were] no intoxicating substances that would have
contributed to the drowning . . . ." satisfies her evidentiary burden. The police
report states that a doctor "believed" decedent became disoriented while in the
hot tub, fainted, and fell into the pool. Dr. LaPoint's conclusions are based upon
pure speculation and are not grounded in fact.
In light of the applicable standards, we find no error in the court's decision
granting summary judgment.
Affirmed.
A-3263-17T3
14