Estate of Alice Trainor, Etc. v. Active Day of Brick, Etc. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1930-22
Estate of ALICE TRAINOR, by
and through LINDA LACERDA, as
administrator of the Estate of
ALICE TRAINOR, and LINDA
LACERDA, individually and on
behalf of all heirs of Estate of
ALICE TRAINOR,
Plaintiff-Appellant,
v.
ACTIVE DAY OF BRICK,
SENIOR CARE CENTERS OF
AMERICA, INC., d/b/a ACTIVE
DAY, ADSC HOLDINGS, INC.,
Defendant-Respondent.
_______________________________
Submitted March 12, 2024 – Decided April 3, 2024
Before Judges Enright and Whipple.
On appeal from the Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-2138-21.
Law Office of Patrick Trainor, LLC, attorneys for
appellants (Patrick Trainor, on the briefs).
Parker, McCay, PA, attorneys for respondent (J.
Brooks DiDonato and Ashley A. Varghese, on the
briefs).
PER CURIAM
Plaintiffs—the Estate of Alice Trainor, by and through Linda Lacerda as
Administrator and Lacerda individually and on behalf of all heirs of the
Estate— appeal from a January 20, 2023 order granting summary judgment to
defendant, Active Day of Brick, Senior Day Care Centers of America, Inc.,
d/b/a Active Day, ADSC Holdings, Inc. We affirm.
Decedent, Alice Trainor, was living with vascular dementia while she
was attending adult day health care services at defendant's Active Day of
Brick's facility. On January 7, 2020, 89-year-old Alice began walking toward
the bathroom at defendant's facility, when another participant in the day
program attempted to help her. Kellie Piaskowski, defendant's activities
manager, intervened, returned the other participant to her seat, and then
assisted Alice in proceeding toward the bathroom. Piaskowski stated in her
deposition:
I was attempting to guide Alice to the bathroom. I had
my hand, like open palm on her back, and I had my
other hand under her arm. Under like her elbow. Like
that. So I was attempting to like guide her.
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We had not taken—you know, we were nowhere
near the bathroom. We were in what is considered the
activities/dining room. Alice was kind of like
shuffling her feet a little bit . . . .
She tripped over her feet. They got kind of like
bundled, kind of bunched up, and she fell flat down.
And she banged her face onto the floor.
Alice was transported by ambulance to Ocean Medical Center, where she
was treated for a contusion on her forehead with a superficial stellate
laceration, a contusion near her left eyebrow, an abrasion on the bridge of her
nose, and tenderness in her right shoulder and cervical spine. She was treated
and released to rest at home with her daughter. After being seen by her
primary physician, Alice received no further medical treatment for her fall
injuries and returned to Active Day about a week later. After a few weeks,
Alice was found unresponsive at home and taken to the hospital where her
condition deteriorated. Alice was sent home for hospice care on February 18
and passed away at home on March 15, 2020. The death certificate listed her
cause of death as respiratory failure due to congestive heart failure.
Plaintiffs filed suit on August 19, 2021, raising claims of simple
negligence. In particular, the complaint alleged that defendant had a duty to
provide Alice with a safe environment but failed to do so, resulting in Alice's
sustaining severe injuries to her face, head, and body. Other counts asserted
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negligent hiring and negligent staffing of the facility. The Estate also asserted
a survivor's claim and a claim for negligent infliction of emotional distress.
Plaintiffs moved to amend the complaint to add a claim of wrongful
death, but the motion was denied as untimely. Defendant moved for summary
judgment, arguing plaintiffs' claims failed because they had no medical expert
to support them. The trial judge granted summary judgment on January 20,
2023, finding plaintiffs had not provided an expert medical opinion asserting
any causal relation between the alleged negligence and the injuries Alice
suffered. This appeal followed.
We review a ruling on summary judgment de novo, applying the same
legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017).
Thus, we consider, as the trial judge did, "whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one -
sided that one party must prevail as a matter of law." Liberty Surplus Ins.
Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Summary judgment
must be granted "if the pleadings, depositions, answers to interrogatories[,]
and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact challenged and that the moving party
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is entitled to a judgment or order as a matter of law." Templo Fuente De Vida
Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (quoting R.
4:46-2(c)).
Plaintiffs argue the trial court erred in granting summary judgment to
defendant. They argue defendant maintained a 30-to-1 ratio of patients to
staff1—well in excess of the state-mandated ratio of 9-to-1 and the Medicaid
required ratio of 5-to-1. Citing Tierney v. St. Michael's Med. Ctr., 214 N.J.
Super. 27, 30 (App. Div. 1986), plaintiffs argue that, because of the extreme
imbalance between patients and caregivers, the finder of fact can rely on the
theory of res ipsa loquitur to infer defendant's "lack of due care" and,
therefore, negligence. The trial judge rejected the argument unequivocally,
saying "[t]his is not . . . under any stretch of the imagination, it's not res ipsa
loquitur."
Plaintiffs argue medical causality is not in question, and a jury does not
need an expert to determine whether defendant's 30-to-1 patient-to-staff ratio
was a gross deviation from the standard of care. We disagree.
1
The ratio of patients to staff at defendant's facility at the time of Alice's
accident is a fact in dispute, but it is immaterial to plaintiffs' claim, as will be
discussed below.
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"The fundamental elements of a negligence claim are a duty of care
owed by the defendant to the plaintiff, a breach of that duty by the defendant,
injury to the plaintiff proximately caused by the breach, and damages."
Shields v. Ramslee Motors, 240 N.J. 479, 487 (2020) (quoting Robinson v.
Vivirito, 217 N.J. 199, 208 (2014)). "Ordinarily, negligence is . . . 'a fact
which must be proved and which will never be presumed,' . . . [but t]he
doctrine of res ipsa loquitur, where applicable, is a method of circumstantially
proving the existence of negligence." Myrlak v. Port Auth. of N.Y. & N.J.,
157 N.J. 84, 95 (1999) (quoting Meny v. Carlson, 6 N.J. 82, 91 (1950) and
citing Tierney, 214 N.J. Super. at 30). "Res ipsa loquitur is not a theory of
liability; rather it is an evidentiary rule that governs the adequacy of evidence
in some negligence cases." Ibid. This theory allows a finder of fact to infer
the defendant's lack of due care only when the three elements of the doctrine
have been satisfied: "(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." Ibid. (quoting Bornstein v.
Metropolitan Bottling Co., 26 N.J. 263, 269, (1958)).
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To satisfy res ipsa loquitur, then, plaintiffs would need to demonstrate
that an 89-year-old falling while being assisted by a caregiver "itself ordinarily
bespeaks negligence"; the environment was within "defendant's exclusive
control"; and "there is no indication in the circumstances that the injury was
the result of [Alice's] own voluntary act or neglect." See ibid. The first
element is not readily met under this record and plaintiffs' theory of the case.
Plaintiffs assert an excessive ratio of patients to staff suggests Alice was not
receiving sufficient attention at the time of her accident and attempt to dispute
defendant's contention she was receiving staff assistance before her fall.
Regardless of the overall ratio of patients to staff that may or may not have
been present at the time of Alice's accident, however, there is no evidence in
the record to support an inference contradicting Piaskowski's sworn testimony
she was assisting Alice when she fell. Furthermore, the scenario suggested by
plaintiffs, that of an 89-year-old falling while walking unassisted, does not
"ordinarily bespeak[] negligence"; it is unlikely that, even with assistance,
such an accident would "ordinarily bespeak[] negligence." On this record, the
third element would be difficult to satisfy as well, for similar reasons.
Finally, even when successfully proven, res ipsa loquitur only fills a gap
in plaintiffs' negligence case with respect to a breach of the duty of care, not
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with respect to the causal relationship between a purported breach and the
injury suffered. The causal relationship is what the trial judge correctly found
wanting here, though: "[U]nder no circumstances [is] it appropriate or
permissible to allow a lay jury [to] make a determination as to medical
damages suffered by [Alice] without the benefit of medical testimony." Here,
the jury would have no fact-supported means of judging whether defendant's
purported short-staffing or Piaskowski's helping of Alice was the proximate
cause of Alice's injuries. Even if plaintiffs were able to satisfy all the elements
of res ipsa loquitur, the deficiencies in their negligence claim would still not
be cured. Thus, the trial judge correctly proclaimed, "under any stretch of the
imagination, it's not res ipsa loquitur."
Plaintiffs' second argument, that no affidavit of merit is required, was
not raised to the trial judge and, therefore, need not be addressed by us. See
State v. Jones, 179 N.J. 377, 404 (2004). Moreover, the argument is irrelevant,
as the trial judge never stated an affidavit of merit was necessary.
In faulting plaintiffs for failing to provide expert testimony as to
causation of Alice's injuries, the trial judge was not referring to a procedural
requirement such as the affidavit of merit. See N.J.S.A. 2A:53A-27. The
court, instead, found plaintiffs had failed to put sufficient evidence in the
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record that would permit a reasonable jury to decide the case in plaintiffs'
favor. The trial judge concluded a lay jury is insufficiently knowledgeable of
the specifics of elder care and assistance to competently determine whether
any purported short-staffing or Piaskowski's helping Alice to the bathroom was
the cause of Alice's injuries. Lacking expert testimony to that effect, the trial
judge determined defendant must prevail as a matter of law.
Affirmed.
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