MARY C. GILVARY VS. GERALD M. CERZA (L-0188-15, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0746-17T3
MARY C. GILVARY,
Plaintiff-Appellant,
v.
GERALD M. CERZA,
CHRISTINA A. CERZA and
C.Z.,1 parent of minor child C.Z.,
Defendants-Respondents.
________________________________
Submitted September 13, 2018 – Decided September 28, 2018
Before Judges Hoffman and Suter.
On appeal from Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-0188-15.
Mary C. Gilvary, appellant pro se.
Lamb Kretzer, LLC, attorneys for respondents (Robert
D. Kretzer, on the brief).
PER CURIAM
1
Now known as Christina A. Cerza.
Plaintiff Mary Gilvary appeals from a Law Division order granting
summary judgment to defendants Gerald M. Cerza and Christina A. Cerza. 2 In
2015, plaintiff filed suit against defendants, seeking damages for a permanent
and disabling back injury she allegedly sustained while caring for Christina's
teenage daughter (C.Z.) in defendants' home. For the reasons that follow, we
vacate and remand.
I.
Viewed in the light most favorable to plaintiff, Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995), these are the relevant facts. According
to defendants, a congenital condition left C.Z. "severely disabled and in need of
daily care." She requires a ventilator and gastrointestinal tube to survive; her
condition renders her physically unable to care for herself or assist in any of her
daily needs and necessities. Defendants acknowledge that C.Z. requires
caretakers "to move, transfer position and reposition her to and from her bed, to
and from her bathroom[,] and to and from her wheelchair." In addition, because
of her total dependence on a ventilator, C.Z. requires daily skilled nursing care.
According to plaintiff, defendants' health insurance company paid for the cost
2
Intending no lack of respect, we refer to defendants by their first names for
clarity and ease of reference.
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of the required skilled nursing care. At all times relevant, C.Z. weighed
approximately eighty-nine pounds.
C.Z. resides with defendants in their home in Somerset County. Plaintiff's
complaint describes defendants' residence as
a large one[-]family home that has been extensively
renovated to accommodate [C.Z.]. These renovations
include[,] but are not limited to[,] an elevator that
services this [three-]floor home so that [C.Z.] can be
moved to all levels of this home by elevator while she
is confined to her power [w]heelchair.
For approximately seven weeks, plaintiff worked in defendants' home as
a pediatric home health nurse through Bayada Pediatric Home Healthcare, Inc.
(Bayada). On December 18, 2012, plaintiff met with Christina who approved
plaintiff to serve as a "fill in" 3 nurse for twelve-hour overnight shifts. According
to plaintiff, this meant she would report for duty at defendants' home at 7 p.m.,
and care for C.Z. until relieved by another nurse, who would arrive at 7 a.m. the
following morning. Plaintiff first provided care for C.Z. on December 21, 2012.
During her shifts, plaintiff acted as the patient's sole caretaker, as the
defendants would be "resting, relaxing, or sleeping." According to plaintiff, her
duties included transferring C.Z. to her bed, changing her into her sleeping
3
Christina described the position to plaintiff as a "fill-in" so that C.Z.'s "other
nurses and caretakers could receive time off."
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clothes, adjusting her sitting or sleeping position to insure her ventilator tube
worked properly, and administering medication via her gastrointestinal tube and
a nebulizer.
Even though defendants installed an elevator in their home to facilitate
C.Z.'s safe movement, defendants did not possess a Hoyer Lift.4 The record
reflects no dispute regarding plaintiff's claim that a Hoyer Lift makes the lifting
and transfer of a disabled patient safer for both the patient and the caregiver.
After plaintiff began working for defendants, she questioned Christina regarding
the absence of a Hoyer Lift in defendants' home. Christina responded, "We don't
have one or need one"; however, Gerald disagreed, stating, "Yes, we need to get
one." Christina replied, "No, I don't want one in the house."
As plaintiff continued to work shifts for defendants, she continued to
complain to Christina "at the end of every shift" about the need for – and
potential dangers of not having – a Hoyer Lift. After initially ignoring plaintiff's
complaints, Christina eventually admitted a Hoyer Lift was "necessary and
4
A Hoyer Lift, or sling lift, is a floor crane used to transfer a patient between
two surfaces (e.g., a bed and a wheelchair) using a sling. See Santos v. Sunrise
Med., Inc., 351 F.3d 587, 589 and n.1 (1st Cir. 2003). The device allows a
caregiver to move a patient without the need for the caregiver to lift the patient
physically.
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4
required" for her daughter's care. Christina then promised plaintiff she would
obtain one "immediately[,] before her [c]hild was injured."
On the overnight shift of January 27, Christina informed plaintiff that she
was in the process of obtaining a Hoyer Lift. Plaintiff informed Christina that
she could not continue to care for C.Z. without a Hoyer Lift and that defendants
should "look for a replacement [n]urse" if they did not intend to obtain one.
On February 3, plaintiff arrived for her shift but again noticed defendants
had failed to secure a Hoyer Lift. According to plaintiff, she did not leave –
despite the continued absence of a Hoyer Lift – because once she "started her
shift, she was obligated by law to stay with her patient." The following morning,
plaintiff confronted defendants, who assured her they had ordered a Hoyer Lift
but claimed its delivery was delayed. Defendants again acknowledged the need
for a lift and the potential dangers of not having one.
According to plaintiff, when she arrived for her overnight shift on
February 10, she learned that Christina had already gone out for the evening.
By the time plaintiff determined the Hoyer Lift still had not been obtained, she
had already begun her shift, leaving her no choice, in her view, but to remain
and care for her patient, C.Z. The next morning (during the same shift), at
approximately 6:30 a.m., plaintiff alleges she attempted to "lift and position"
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C.Z. In doing so, plaintiff contends she "severely injured her lower back."
During January and February, plaintiff worked a total of eleven shifts for
defendants. The February 10 shift was her last.
Defendants do not challenge plaintiff's assertions that they admitted they
needed a Hoyer Lift and assured plaintiff they would obtain one. Instead,
Christina's answers to interrogatories appears to challenge, at least in part,
plaintiff's account of what occurred during her final shift caring for C.Z.:
On February 10, 2013[,] at approximately 8 [p.m.], I
personally transferred my daughter [C.Z.] from her
wheelchair to her bed. At no time whatsoever did the
plaintiff ever transfer my daughter from her wheelchair
to her bed or from her bed to her wheelchair. I always
did the transfer when the plaintiff was working. After
prayers on February 10, 2013, I went to bed. The
following morning I went to [C.Z.'s] room and the
plaintiff claim[ed] she hurt her back when she
repositioned [C.Z.] at some point in the night.
Plaintiff initially received physical therapy for her back injury, without
success. She describes the injury to her lower back as "inoperable, permanent,
and career ending." She now receives Social Security benefits.
On February 10, 2015, plaintiff filed her complaint, asserting a negligence
claim against defendants for their failure to provide the promised Hoyer Lift.
Following discovery, defendants moved for summary judgment. On August 4,
2017, the court granted summary judgment to defendants and dismissed
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plaintiff's complaint. Because Bayada sent plaintiff to defendants' home
specifically to care for C.Z., the motion judge accepted defendants' argument
that plaintiff could not sue for injuries caused by the exact work she came to
perform. Additionally, the judge concluded that plaintiff needed an expert
witness to explain the risks and benefits of the Hoyer Lift, viewing the subject
as beyond the ken of the average juror. This appeal followed.
II.
We review a trial court's grant of summary judgment de novo. Cypress
Point Condo. Ass'n v. Adria Towers, LLC, 226 N.J. 403, 414 (2016). "[The]
trial court's interpretation of the law and the legal consequences that flow from
established facts are not entitled to any special deference." Manalapan Realty,
LP v. Twp. Comm., 140 N.J. 366, 378 (1995). Summary judgment may be
granted when the evidence before the trial court on the motion, viewed in a light
most favorable to the non-moving party, indicates there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of
law. R. 4:46-2(c); see also Brill, 142 N.J. at 540. In reviewing an order granting
or denying summary judgment, we employ the same standard as the trial court.
Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012).
A-0746-17T3
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The trial court's "function is not . . . to weigh the evidence and determine
the truth . . . but to determine whether there is a genuine issue for trial." Brill,
142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986)). To make the determination, the trial judge must "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 factfinder
to resolve the alleged disputed issue in favor of the non-moving party." Ibid.The judge must assume the non-moving party's version of the facts as true and
give that party the benefit of all favorable inferences available in the record. Id.
at 536.
A.
We first address the judge's determination that plaintiff could not sue for
injuries caused by the exact work she came to perform. "[N]egligence is conduct
which falls below the standard established by law for the protection of others
against unreasonable risk of harm." Restatement (Second) of Torts § 282 (Am.
Law Inst. 1965). When a person fails to take reasonable precautions to prevent
causing harm to another, that person acts negligently. Id. § 284.
To determine whether a defendant's conduct is
negligent, we consider what a "prudent [person]" would
have done in the defendant's circumstances. Weinberg
v. Dinger, 106 N.J. 469, 484 (1987). In addition to
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showing that a defendant failed to act with reasonable
care, a plaintiff must show that a defendant owed the
injured party a duty of care. Kelly v. Gwinnell, 96 N.J.
538, 548 (1984). Traditionally, courts have determined
the circumstances under which a defendant owes a legal
duty to another. Carvalho v. Toll Bros. & Developers,
143 N.J. 565, 572 (1996). Similarly, the scope of the
duty owed is a matter of law. Kelly, supra, 96 N.J. at
552.
[Pfenninger v. Hunterdon Cent., 167 N.J. 230, 240
(2001).]
The formulation of a duty of care and its imposition derive from
considerations of public policy and fairness to the litigants. Hopkins v. Fox &
Lazo Realtors, 132 N.J. 426, 439 (1993).
Whether a person owes a duty of reasonable care
toward another turns on whether the imposition of such
a duty satisfies an abiding sense of basic fairness under
all of the circumstances in light of considerations of
public policy. [Goldberg v. Hous. Auth. of Newark, 38
N.J. 578, 583 (1962).] That inquiry involves
identifying, weighing, and balancing several factors —
the relationship of the parties, the nature of the
attendant risk, the opportunity and ability to exercise
care, and the public interest in the proposed solution.
Ibid. The analysis is both very fact-specific and
principled; it must lead to solutions that properly and
fairly resolve the specific case and generate intelligible
and sensible rules to govern future conduct.
[Hopkins, 132 N.J. at 439.]
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In determining whether a duty of care was owed to an injured person, a
judge must consider "the relationship of the parties, the nature of the risk – that
is, its foreseeability and severity – and the impact the imposition of a duty would
have on public policy." Dunphy v. Gregor, 136 N.J. 99, 108 (1994) (citing
Goldberg, 38 N.J. at 583).
According to plaintiff, a registered nurse, C.Z.'s weight of eighty-nine
pounds, "was far above the [fifty-pound] limit for a single nurse to lift and
transfer," thus requiring a Hoyer Lift. Nothing in the summary judgment record
challenges plaintiff's assertion regarding the fifty-pound limit. In fact, it
appears that the National Institute for Occupational Safety and Health (NIOSH)
recommends a lower thirty-five pound maximum weight limit for use in patient-
handling tasks. 5 See generally Alloway v. Bradlees, Inc., 157 N.J. 221, 236
5
In 1994, NIOSH published the "Revised NIOSH Lifting Equation—an ergonomics
assessment tool that can be used to calculate the recommended weight limit for two-
handed manual-lifting tasks." Thomas R. Waters, When Is It Safe to Manually Lift
a Patient?, 107(8) A.J.N. 53, 53 (2007). http://www.asphp.org/wp-
content/uploads/2011/05/When_Is_It_Safe_To_Manually_Lift_A_Patient.pdf.
This equation "can be used to calculate a recommended weight limit for a limited
range of patient-handling tasks in which the patient is cooperative and unlikely to
move suddenly during the task." Ibid. While the publication benchmarked twenty-
three kilograms (about 51 pounds) as the "maximum weight to be lifted under ideal
conditions[,]" id. at 54 (citation omitted), "[i]n general, the revised equation yields a
recommended [thirty-five pound] maximum weight limit for use in patient-handling
tasks," and "[w]hen weight to be lifted exceeds this limit, assistive devices should
be used." Id. at 53.
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(1999) (finding applicable in workplace injury case "the well-established
principle that the violation of a legislated standard of conduct may be regarded
as evidence of negligence if the plaintiff was a member of the class for whose
benefit the standard was established").
Pursuant to N.J.R.E. 201(a):
Law which may be judicially noticed includes the
decisional, constitutional and public statutory law,
rules of court, and private legislative acts and
resolutions of the United States, this state, and every
other state, territory and jurisdiction of the United
States as well as ordinances, regulations and
determinations of all governmental subdivisions and
agencies thereof.
On appeal, in our discretion, we "may take judicial notice of any matter
specified in [N.J.R.E.] 201, whether or not judicially noticed by the [trial]
judge." N.J.R.E. 202(b); Marchak v. Claridge Commons, Inc., 261 N.J. Super.
126, 131-32 (App. Div. 1992) ("Of course, we may take judicial notice of
statutes, regulations and case law, whether or not presented to the motion judge
. . . in deciding legal issues."), aff'd, 134 N.J. 275 (1993).
Exercising our discretionary authority, we take judicial notice of the
NIOSH guidelines. Since C.Z. weighed significantly greater than applicable
NIOSH recommended weight limit for lifting without assistive devices, the risk
of plaintiff sustaining an injury while caring for C.Z. without some assistance
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with patient transfer was both foreseeable and likely to have severe
consequences. The foreseeability of this risk "is the indispensable cornerstone
of any formulation of a duty of care. . . ." Dunphy, 136 N.J. at 108. Further, we
discern no adverse impact on any public policy by the imposition of a duty here.
Both of these factors support imposing a duty of care on defendants. Ibid. Thus,
the relationship of the parties requires careful consideration.
"As a general rule, a landowner has a non-delegable duty to use reasonable
care to protect invitees against known or reasonably discoverable dangers."
Rigatti v. Reddy, 318 N.J. Super. 537, 541 (App. Div. 1999) (quoting Kane v.
Hartz Mountain Indus., 278 N.J. Super. 129, 140 (App. Div. 1994), aff'd o.b.,
143 N.J. 141 (1996)). "This general rule operates to protect individuals
performing work on the premises of the landowner, most commonly independent
contractors and their employees." Ibid. (citations omitted). A landowner cannot
escape this duty even if the independent contractor was also negligent. Sanna
v. Nat'l Sponge Co., 209 N.J. Super. 60, 66–67 (App. Div. 1986).
The landowner's duty includes the obligation of making
a reasonable inspection to discover defective and
hazardous conditions. [Zentz v. Toop, 92 N.J. Super.
105, 111 (App. Div.), aff'd, 50 N.J. 250 (1966).] The
obligation upon the landowner of either making the
condition of his premises reasonably safe or giving
adequate warning imposes upon him the duty to furnish
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such safeguards as may reasonably be necessary. See
[id.] at 113.
[Sanna, 209 N.J. Super. at 66.]
A well-settled exception to this rule was applied by the trial judge in
dismissing plaintiff's case – that is, "[T]he duty to provide a reasonably safe
working place for employees of an independent contractor does not relate to
known hazards which are part of or incidental to the very work the contractor
was hired to perform." Muhammad v. N.J. Transit, 176 N.J. 185, 199 (2003)
(quoting Wolczak v. Nat'l Elec. Prod. Corp., 66 N.J. Super. 64, 75 (App. Div.
1961)).
A landowner "[]is under no duty to protect an employee
of an independent contractor from the very hazard
created by the doing of the contract work.[]"
[Muhammad, 176 N.J.] at 198 (quoting Gibilterra v.
Rosemawr Homes, 19 N.J. 166, 170 (1955)). This
exception to the landowner's general duty exists
because "[t]he landowner may assume that the worker,
or his superiors, are possessed of sufficient skill to
recognize the degree of danger involved and to adjust
their methods of work accordingly." Id. at 199 (quoting
Wolczak, supra, 66 N.J. Super. at 75).
[Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 407
(2006).]
However, this exception applies only when "the landowner does not retain
control over the means and methods of the execution of the project." Ibid.A-0746-17T3
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(quoting Muhammad, 176 N.J. at 198); see also Jarrell v. Kaul, 223 N.J. 294,
316–17 (2015) (citing Majestic Realty Assocs. v. Toti Contracting Co., 30 N.J.
425, 430–31 (1959)) ("[A] person who engages an independent contractor . . . .
will be held liable if he or she . . . retains control of the manner and means by
which the work will be performed . . . .").
The record before us contains clear evidence that defendants retained
control over the means and methods of plaintiff's performance of her duties that
required the movement and transfer of C.Z. We therefore conclude defendants
retained a sufficient level of control over plaintiff's work – at least in regard to
patient handling and transfer – that defendants had a duty to provide plaintiff a
reasonably safe place to work. A jury is required to determine whether
defendants breached their duty, and if so, whether their breach was a proximate
cause of plaintiff's back injury. Sanna, 209 N.J. Super. at 66.
B.
We next address the judge's determination that plaintiff could not sustain
her burden of proof to establish that defendants violated a duty to her without
expert testimony. In determining whether a plaintiff must provide expert
testimony, a court must consider "whether the matter to be dealt with is so
esoteric that jurors of common judgment and experience cannot form a valid
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judgment as to whether the conduct of the [defendant] was reasonable." Davis
v. Brickman Landscaping, Ltd., 219 N.J. 395, 407 (2014) (quoting Butler v.
Acme Mkts., Inc., 89 N.J. 270, 283 (1982)). In those instances, the jury would
have to "speculate without the aid of expert testimony." Torrey v. Schripps,
Inc., 342 N.J. Super. 419, 430 (App. Div. 2001) (citing Kelly v. Berlin, 300 N.J.
Super. 256, 268 (App. Div. 1997)).
Basic principles of negligence law routinely allow lay jurors to determine
if a defendant acted unreasonably. Model Jury Charge (Civil), 5.10A,
"Negligence and Ordinary Care" (approved before 1984). Basic notions of
reasonable behavior do not necessarily require an expert to testify regarding
standards of care, particularly where the case does not involve suit against a
licensed professional covered by the Affidavit of Merit statute. Jacobs v. Jersey
Cent. Power & Light Co., 452 N.J. Super. 494, 505 (App. Div. 2017).
To admit an expert's testimony, it must have some logical connection to
the disputed issue in the case. See N.J.R.E. 403; Muise v. GPU, Inc., 371 N.J.
Super. 13, 59–60 (App. Div. 2004). "Because the linchpin for the admission of
expert testimony is the perceived need to assist the jury, such expert testimony
is generally not admissible as to matters to be submitted not to the trier of fact
but to the court." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence,
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cmt. 1 on N.J.R.E. 702. Thus, "a matter of law to be determined by the court is
not the proper subject of expert testimony." Ibid.The ultimate issue in the case is whether defendants breached a duty owed
to plaintiff. "[T]he question of whether a duty exists is a matter of law properly
decided by the court, not the jury…." Strachan v. John F. Kennedy Mem'l Hosp.,
109 N.J. 523, 529 (1988). As discussed in Section A, the question for the jury
to answer will be whether defendants failed to provide plaintiff a reasonably
safe work place, and if so, whether that failure was a proximate cause of
plaintiff's lower back injury.
While we conclude plaintiff was not required to submit expert testimony
regarding the issue of whether defendants owed plaintiff a duty of care, we
acknowledge that "open issues of causation and damage are plainly amenable to
expert testimony." Estate of Spencer v. Gavin, 400 N.J. Super. 220, 255 (App.
Div. 2008). We therefore agree with the trial court with regard to the need for
plaintiff to present competent expert testimony to establish causation and
damages, i.e., a medical expert who will explain whether a Hoyer Lift was
appropriate to transfer this patient, the use of a Hoyer Lift, the means by which
it facilitates safe patient lifting and transfer, and how and why it would have
likely prevented plaintiff's back injury.
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We note that the motion judge's opinion acknowledges that plaintiff
requested an opportunity to obtain an expert witness regarding the Hoyer Lift;
however, the judge denied her request because trial was scheduled for the
following month.
We conclude the judge mistakenly exercised his discretion when he denied
plaintiff the opportunity to obtain an expert witness regarding the Hoyer Lift.
We arrive at this conclusion "bear[ing] in mind the judge's understanding at that
time of the applicable substantive law, and his mistaken perception that
[defendants] did not have a legal duty" to provide plaintiff a reasonably safe
place to work. Ibid. In light of our clarification in Section A of the legal
principles involved, as to the existence and scope of defendants' duty, we believe
the interests of justice require us to afford both plaintiff and defendants a
renewed opportunity on remand to marshal expert testimony on the use of a
Hoyer Lift in these circumstances and whether it would have likely prevented
plaintiff's injury, or at least reduced the severity of any potential injury. Such
expert testimony will enable the jury to competently address the issues of
liability, causation, and damages.
Within forty-five days of this decision, the Law Division shall conduct a
case management conference. Since it does not appear any parties were deposed
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in the case, and such depositions would likely prove beneficial to the parties in
securing expert testimony, the trial court shall permit the parties a limited time
to complete depositions of the parties, followed by a schedule for the production
of expert reports and then completion of expert witness depositions.
Vacated and remanded. We do not retain jurisdiction.
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