ROSE BENGEL VS. HOLIDAY CITY AT BERKELEY FIRST AID SQUAD, INC. (L-0192-18, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-0530-19T2
ROSE BENGEL and HENRY F.
BENGEL,
Plaintiffs-Appellants,
v.
HOLIDAY CITY AT BERKELEY
FIRST AID SQUAD INC.,
GEORGE PHILLIPS,
MARIELLA KOBUS, and
LORRAINE MORRONE,
Defendants-Respondents,
and
BERKELEY TOWNSHIP,
Defendants.
____________________________
Argued October 26, 2020 – Decided December 11, 2020
Before Judges Sabatino and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-0192-18.
Fred J. Gelb argued the cause for appellants (Fred J.
Gelb and Jeff Thakker, attorneys; Jeff Thakker, of
counsel; Fred J. Gelb, on the briefs.)
Suzanne M. Marasco argued the cause for respondents
(Hill Wallack LLP, attorneys; Suzanne M. Marasco, of
counsel and on the brief, Michael K. Fortunato, on the
brief).
PER CURIAM
Plaintiffs Rose and Henry Bengel appeal from the August 21, 2019 Law
Division order granting summary judgment dismissal of their personal injury
complaint against defendants Holiday City at Berkeley First Aid Squad, Inc.,
and three volunteer squad members, George Phillips, Mariella Kobus, and
Lorraine Morrone, all first responders.1 The motion judge ruled that defendants,
who responded to plaintiffs' call for medical assistance, were immune from
liability pursuant to statute. Having considered the arguments and applicable
law in light of the record, we affirm.
The action stemmed from injuries allegedly sustained when Phillips,
Kobus, and Morrone responded to the Bengel's home on a 9-1-1 call for medical
1
The Township of Berkeley was also named as a defendant in the complaint.
However, on March 1, 2019, the Township was granted summary judgment
dismissal, and that dismissal is not challenged in this appeal.
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2
assistance and transported Rose, 2 then eighty-five-years-old, to the hospital.
The relevant facts, viewed in the light most favorable to plaintiffs, as the
summary judgment standard requires, Angland v. Mountain Creek Resort, Inc.,
213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520,
523 (1995)), reveal that on February 1, 2016, when Phillips, Kobus, and
Morrone arrived at the Bengel home, they were advised by a home health aide
that Rose had "pink eye, thrush, and was wheezing" since recently arriving home
from a nursing home. At the time, Rose was non-ambulatory and confined to a
wheelchair, having suffered from muscular dystrophy for decades.
After assessing Rose's medical condition, the first responders began to
transfer Rose from her motorized wheelchair to a stretcher in order to transport
her to the hospital. To that end, Phillips went behind Rose to lift her onto the
stretcher, while Kobus picked up Rose's feet. Together, the two lifted Rose and
placed her on the stretcher in a seated position. While on the stretcher, Kobus
took Rose's vitals, which included an assessment of her oxygen level, pulse, and
blood pressure. Thereafter, the first responders transported Rose via ambulance
to the emergency room at Community Medical Center in Toms River.
2
We refer to the Bengels by their first names to avoid any confusion caused by
their common surname and intend no disrespect.
A-0530-19T2
3
On January 26, 2018, plaintiffs filed a six-count complaint alleging
negligence and carelessness on the part of defendants by failing "to use
reasonable care to lift, remove[,] and transport . . . Rose . . . to the hospital."
Specifically, according to the complaint, "by . . . lifting [Rose] up from under
her arms instead of lifting her in her harness" when they transferred Rose from
"her wheel chair onto [the] gurney[,]" the first responders inflicted permanent
injuries on Rose. In their interrogatory answers, plaintiffs described the injuries
as a "[t]orn rotator cuff" in the "left arm."
During his deposition, Henry Bengel, Jr., Rose's son, testified that he was
at his parents' home when the first responders arrived. He specified that it was
a nurse, rather than an aide, who had called for an ambulance, but he did not
know the nurse's name and could not identify her. Henry also stated that because
of his mother's resistance to going to the hospital, the nurse went outside to make
the call. However, he believed the nurse had already left the residence when the
ambulance arrived. As a result, he, rather than the nurse, interacted with the
first responders upon their arrival.
Henry further testified that when the first responders transferred Rose to
the stretcher, Phillips lifted Rose "under her arms from the back of the
[wheelchair,]" while Kobus "had [her] hands around [Rose's] [lower] legs."
A-0530-19T2
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Henry stated as Phillips and Kobus simultaneously lifted Rose, Rose "let out a
loud scream," prompting Henry to tell the first responders, "[y]ou're hurting
her." After Rose was placed on the stretcher, she told Henry the first responders
had hurt "her left arm." Henry stated none of the first responders expressed any
emotion after his mother screamed and failed to mention the injury to the
emergency room personnel. Henry testified that after his mother was admitted
to the hospital, he, in fact, informed "the emergency room [personnel] to check
[Rose's] shoulder because she was injured coming in with the [first responders]."
During his deposition, Henry was specifically questioned about the "call
sheet" completed by the first responders on February 1, 2016 and provided to
the hospital when they delivered Rose to the emergency room. The call sheet
recorded the information pertinent to the encounter, including the patient's
medical condition. In the section entitled "Assessment/Treatment &
Procedures," the call sheet stated: "Son states: Home health aid[e] stated patient
has pink eye, thrush, wheezing since coming hom[e] yesterday from [r]ehab.
Pain in left arm. Benicar only med this morning. Discharged yesterday from
nursing home since Dec 15." Henry was adamant that prior to the injury
inflicted by the first responders, Rose "had no pain in her left arm" and denied
telling the first responders otherwise.
A-0530-19T2
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After subsequent diagnostic testing revealed "an acute rotator cuff tear"
in the left shoulder, Rose's doctor told Henry that although "the muscle was
ripped from the bone," he did not "recommend surgery . . . because of [Rose's]
age and . . . sugar levels." As a result, Rose was treated with physical therapy
and pain medications. Henry testified his mother was unable to use her "[l]eft
hand and . . . arm" after being injured on February 1st. According to Henry,
although Rose's use of her left hand and arm were limited prior to the injury, the
limitations became worse after the incident.3 Rose confirmed during her
deposition that the first responder "hurt [her] . . . [left] arm" when "he pick[ed
her] up," and that she was able to use her left arm before the injury.4
Kobus, Phillips, and Morrone provided a different account from Henry
during their respective depositions. According to Kobus and Phillips, when they
transferred Rose from her wheelchair to the stretcher, Phillips "wrapped his arms
around [Rose's] abdomen" while Kobus "took her feet." Together, they "gently
lifted" Rose and "sat her on the stretcher." Neither Kobus nor Phillips heard
Rose scream. Further, both Kobus and Phillips testified that when they arrived
3
Henry was also interviewed by an insurance company representative on May
13, 2016, during which he provided answers that were generally consistent with
his deposition testimony.
4
Rose passed away on May 7, 2019, from unrelated causes.
A-0530-19T2
6
at the residence, the aide was beside Rose and provided them with all the
information about Rose's condition. Morrone recorded the information provided
by the aide in the call sheet that was turned over to the hospital when they arrived
at the emergency room. The first responders also testified that although the
9-1-1 dispatch for Rose's call reported an "[e]lderly female with general
weakness[,]" all calls were considered emergencies.
Plaintiffs provided an expert report prepared by W. Francis Kennard,
M.D. Based on his review of Rose's medical records as well as the depositions
taken in the case, 5 Dr. Kennard opined that the "[c]ause" of Rose's shoulder
injury was "traumatic injury such as lifting superimposed upon chronic
tendinosis/tendinitis of the rotator cuff." Plaintiffs also supplied an expert report
prepared by Michael Ryan, an experienced critical care emergency medical
technician (EMT) and certified instructor coordinator for the New York
Department of Health, Bureau of Emergency Medical Services.
Based on his review of the depositions, Ryan opined:
The Holiday City at Berkley First Aid Squad is not
properly trained to handle [9-1-1] emergencies. Basic
EMT training, a minimum standard in pre-hospital care,
far exceeds what these Squad members were provided.
The victim was not thoroughly assessed prior to
5
Rose's husband was also deposed. However, the record on appeal does not
contain a copy of his deposition.
A-0530-19T2
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transfer and as a result suffered an injury while being
moved to the ambulance stretcher. This was an act of
negligence by the Squad members based on my
experience as a technician and an instructor.
Defendants moved for summary judgment on the ground that they had
statutory immunity against claims of negligence. During oral argument
conducted on August 16, 2019, plaintiffs' counsel asserted that statutory
immunity did not apply because "[i]t was [not] an emergent situation."
According to counsel, although defendants went to the Bengel residence with
"lights" and "sirens on[,]" when they left the house, there were "no sirens" and
"no lights . . . . because it wasn't an emergency." Counsel also argued that "[i]n
order for immunity to apply, defendants must demonstrate that the care they
provided was rendered in good faith[,]" but there were "some serious issues" as
to whether "the care [defendants] provided [was] rendered in good faith."
In an August 21, 2019 order, the judge granted defendants' motion and
dismissed the complaint with prejudice. In an accompanying written decision,
the judge first noted that "Holiday City at Berkeley First Aid Squad Inc. is one
of the four volunteer first aid squads in Berkeley Township," and Phillips,
Kobus, and Morrone "were members of the First Aid Squad and certified to
provide Basic Life Support services as first responders." Applying N.J.S.A.
2A:53A-13, N.J.S.A. 2A:53A-13.1, and N.J.S.A. 26:2K-29, immunizing
A-0530-19T2
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volunteer rescue squads and members from civil liability when providing
emergency public first aid or intermediate life support services in good faith, the
judge determined that defendants were entitled to immunity as a matter of law
and there were no genuine issues of material fact that dictated otherwise.
The judge explained:
Here, [p]laintiffs allege that an injury occurred while
two of the rescue squad members lifted . . . Rose Bengel
from her motorized wheelchair onto a stretcher. At the
time of the alleged injury, the First Aid Squad
[d]efendants were engaged in public first aid rescue
services as they were specifically responding to a
9-1-1 medical emergency call. Plaintiffs' contention
that [Rose's] condition may not have been life
threatening does not make the call that the First Aid
Squad [d]efendants were responding to non-emergent.
In support, the judge stated that "[a]ll [9-1-1] calls to which the First Aid Squad
responds are considered a medical emergency and are treated as such."
The judge acknowledged that under the statutes, "if a volunteer first aid
squad member were to engage in intentional misconduct while providing public
first aid services, the individual would not be entitled to immunity per the
statutes." However, according to the judge, "no evidence has been set forth
demonstrating that any such alleged injury was caused with intent or with bad
faith[,]" and "[t]he opinion of [p]laintiff[s'] expert that . . . defendant volunteer
A-0530-19T2
9
first aid squad and members were 'negligent' does not change the outcome." This
appeal followed.
We review "a grant of summary judgment de novo" Sashihara v. Nobel
Learning Communities, Inc., 461 N.J. Super. 195, 205 (App. Div. 2019), and
apply "the same standard governing the trial court." Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 405 (2014). That standard is well-settled.
[I]f the evidence of record—the pleadings, depositions,
answers to interrogatories, and affidavits—"together
with all legitimate inferences therefrom favoring the
non-moving party, would require submission of the
issue to the trier of fact," then the trial court must deny
the motion. On the other hand, when no genuine issue
of material fact is at issue and the moving party is
entitled to a judgment as a matter of law, summary
judgment must be granted.
[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344,
366 (2016) (citations omitted) (quoting R. 4:46-2(c)).]
At the summary judgment stage, the opposing party must produce
evidence that creates a genuine issue of material fact, and "conclusory and self -
serving assertions . . . are insufficient to overcome the motion." Puder v.
Buechel, 183 N.J. 428, 440-41 (2005). "If there exists a single, unavoidable
resolution of the alleged disputed issue of fact, that issue should be considered
insufficient to constitute a 'genuine' issue of material fact for purposes of Rule
4:46-2." Brill, 142 N.J. at 540. Further, if "the evidence is utterly one-sided[,]"
A-0530-19T2
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a trial court has the authority to "decide that a party should prevail as a matter
of law." Gilhooley v. Cnty. of Union, 164 N.J. 533, 545 (2000) (citing Brill,
142 N.J. at 540).
In our review, if there is no genuine issue of material fact, we must "decide
whether the trial court correctly interpreted the law." DepoLink Ct. Rep. &
Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013)
(citation omitted). We review "issues of law de novo and accord no deference
to the trial judge's legal conclusions." Vizzoni v. B.M.D., 459 N.J. Super. 554,
567 (App. Div. 2019) (citing Nicholas v. Mynster, 213 N.J. 463, 478 (2013)).
With these principles in mind, we begin by examining the language of the
immunity statutes at issue. "Through several statutes, the Legislature has
granted qualified immunity to a wide range of persons who provide medical
assistance in emergency situations." Frields v. St. Joseph's Hosp. & Med. Ctr.,
305 N.J. Super. 244, 247 (App. Div. 1997). Pertinent to this appeal, v olunteer
rescue squad members are immunized from civil liability under N.J.S.A.
2A:53A-13, which provides:
No member of a volunteer fire company, which
provides emergency public first aid and rescue services
or services for the control and extinguishment of fires,
or both, and no authorized active volunteer first aid or
rescue squad worker who is not a member of the
volunteer fire company within which the first aid or
A-0530-19T2
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rescue squad may have been created, doing public first
aid or rescue duty, shall be liable in any civil action to
respond in damages as a result of his acts of
commission or omission arising out of and in the course
of his rendering in good faith any such services, or
arising out of and in the course of participation in any
authorized drill, but such immunity from liability shall
not extend to the operation of any motor vehicle in
connection with the rendering of any such services.
Nothing herein shall be deemed to grant any such
immunity to any person causing damage by his willful
or wanton act of commission or omission.
As entities, volunteer rescue squads enjoy similar immunity under the
companion statute, N.J.S.A. 2A:53A-13.1, which provides:
No volunteer fire company or volunteer first aid, rescue
or emergency squad, civil defense unit, incorporated or
unincorporated, which provides services for the control
and extinguishment of fires or emergency public first
aid and rescue services, or both, shall be liable in any
civil action to respond in damages as a result of any acts
of commission or omission arising out of and in the
course of the rendition in good faith of any such
services, or arising out of and in the course of
participation in any authorized drill, by any member of
the volunteer fire company or the volunteer first aid,
rescue or emergency squad, or civil defense unit, and in
the case of a volunteer fire company within which a
first aid or rescue squad has been created, by any
authorized active volunteer first aid or rescue squad
worker therefor, notwithstanding that he is not a
member of the volunteer fire company. No such
immunity from liability shall extend to the operation of
any motor vehicle in connection with the rendering of
any such services.
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Individual volunteer first aid squad members also have a separate and
independent basis for immunity under N.J.S.A. 26:2K-29, which provides:
No EMT-intermediate, licensed physician, hospital or
its board of trustees, officers and members of the
medical staff, nurses or other employees of the hospital,
or officers and members of a first aid, ambulance or
rescue squad shall be liable for any civil damages as the
result of an act or the omission of an act committed
while in training for or in the rendering of intermediate
life support services in good faith and in accordance
with this act.
N.J.S.A. 26:2K-29 immunizes for negligence medical personnel who "act
in an objectively reasonable manner[,]" Frields, 305 N.J. Super. at 249, in
actually rendering life support services. De Tarquino v. City of Jersey City, 352
N.J. Super. 450, 456 (App. Div. 2002). N.J.S.A. 26:2K-21(i) defines
"intermediate life support services" as "an intermediate level of pre-hospital,
inter-hospital, and emergency service care which includes basic life support
functions . . . and other techniques and procedures authorized by the
commissioner[.]" N.J.S.A. 26:2K-21(b) defines "[b]asic life support" which are
included in "[i]ntermediate life support services," as "a basic level of pre-
hospital care which includes patient stabilization . . . and other techniques and
procedures authorized by the commissioner." N.J.A.C. 8:40A-10.1(b)
delineates the "scope of practice for an EMT-Basic[,]" approved by the
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Commissioner of Health, and lists "[p]atient assessment, including vital signs
and ongoing evaluation[,]" and "[p]atient lifting and moving techniques [,]"
among the authorized techniques and procedures. N.J.A.C. 8:40A-10.1(b)(1)
and (10).
Here, it is undisputed that defendants, a volunteer first aid squad and its
members, qualify for immunity under the statutes. Therefore, the dispositive
inquiry is whether they acted in good faith. Indeed, "[t]he immunities
granted . . . under N.J.S.A. 2A:53A-13 and -13.1 are broader in scope than those
generally provided under the Tort Claims Act because a plaintiff must
demonstrate an absence of good faith or intentional conduct." Lauder v.
Teaneck Volunteer Ambulance Corps., 368 N.J. Super. 320, 327 (App. Div.
2004).
Good faith is not defined in any of the immunity statutes. However,
"'[g]ood faith' has been defined as 'honesty of purpose and integrity of conduct
without knowledge, either actual or sufficient to demand inquiry, that the
conduct is wrong.'" Frields, 305 N.J. Super. at 248 (quoting Marley v. Borough
of Palmyra, 193 N.J. Super. 271, 294 (Law Div.1983)). In Frields, we explained
that:
The issue of whether a person acted in good faith is
often a question of fact which should be decided at a
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plenary hearing. Summary judgment, however, is
appropriate when the employee demonstrates that
his/her actions "were objectively reasonable or that [he]
performed them with subjective good faith." This test
recognizes that even a person who acted negligently is
entitled to a qualified immunity, if he acted in an
objectively reasonable manner.
[Ibid. (citation omitted) (quoting Canico v. Hurtado,
144 N.J. 361, 365 (1996)).]
N.J.S.A. 2A:53A-13 contains an additional "disclaimer for 'willful or
wanton' actions" that does not appear in N.J.S.A. 2A:53A-13.1. Stollenwerk v.
Twp. of Mullica, 316 N.J. Super. 379, 381 (App. Div. 1998).
To establish a willful or wanton injury it is
necessary to show that one with knowledge
of existing conditions, and conscious from
such knowledge that injury will likely or
probably result from his conduct, and with
reckless indifference to the consequences,
consciously and intentionally does some
wrongful act or omits to discharge some
duty which produces the injurious result.
Those conditions must be demonstrated; they cannot
merely be alleged:
Willfulness and wantonness are
conclusions to be drawn from a given set of
facts and circumstances. When in the light
of common experience and judicial
precedents the facts and circumstances
alleged clearly do not constitute such
conduct, the mere fact that plaintiffs
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characterize them as willful or wanton is
not sufficient to create a triable issue.
[Id. at 382 (quoting Egan v. Erie R.R. Co., 29 N.J. 243,
254-255 (1959)).]
"To warrant that characterization, the act or the omission to discharge a duty
must be intentional, and coupled with a consciousness, actual or imputed, of a
high degree of probability that harm . . . will ensue." Id. at 383 (quoting Krauth
v. Israel Geller, 31 N.J. 270, 277 (1960)).
Applying these principles to plaintiffs' proofs, including plaintiffs' expert
opinions that defendant squad members were negligent in lifting Rose and the
lifting caused Rose's shoulder injury, and drawing all reasonable inferences in
plaintiffs' favor, we are satisfied that plaintiffs' proofs "do[] not strip
[defendants] of their immunity." Frields, 305 N.J. Super. at 248.
On appeal, plaintiffs appear to have abandoned their prior claim that
defendants were not responding to a medical emergency to qualify for immunity.
Referring to the contact sheet prepared and submitted by the first responders
when they delivered Rose to the emergency room, plaintiffs now allege for the
first time on appeal that defendants' "attempt[] to cover . . . up" their negligence
by "fabricat[ing] a report of a prior nursing home arm injury" "transcends bad
faith and enters the realm of willful misconduct."
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Even assuming that plaintiffs' newly minted allegation of bad faith was
properly before us, the claim has no merit. Nothing in these circumstances
justifies such a characterization of defendants' actions. Plaintiffs' assertion that
defendants' paperwork containing a conflicting account of what occurred at the
Bengel home bespeaks falsification and, in turn, the absence of good faith in
providing first aid to Rose, constitutes rank speculation. "[C]onclusory and self-
serving assertions by one of the parties are insufficient to overcome [a summary
judgment] motion." Sullivan v. Port Auth. of N.Y. & N.J., 449 N.J. Super. 276,
283 (App. Div. 2017) (first alteration in original) (quoting Puder, 183 N.J. at
440-41 (2005)). "Competent opposition requires 'competent evidential material'
beyond mere 'speculation' and 'fanciful arguments.'" Hoffman v.
Asseenontv.com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) (quoting
Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563
(App. Div. 2005)).
There is nothing in the statute or case law to indicate that poor
recordkeeping strips a first responder of immunity. The "good faith" element in
the statutes concerns the treatment provided at the scene, not how well records
are prepared after the fact. See De Tarquino v. City of Jersey City, 352 N.J.
Super. 450, 456 (App. Div. 2002) (holding that the immunity provided under
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N.J.S.A. 26:2K-29 "for 'the rendering of intermediate life support services'" does
not "include immunity for negligence in the preparation of a report regarding
those services" (quoting N.J.S.A. 26:2K-29)). Because plaintiffs failed to
present competent evidential material which creates a genuine issue of material
fact regarding the absence of good faith on the part of defendants in providing
first aid to Rose, summary judgment in favor of defendants based on statutory
immunity was appropriate.
Plaintiffs also challenge certain procedural aspects of the adjudication of
the summary judgment motion, arguing that the judge abused his discretion by
failing to grant "a one-cycle adjournment" so that counsel could "sufficiently
recover" from an unspecified "illness." We recount the timeline of events for
context. On July 10, 2019, following the June 12, 2019 discovery end date,
plaintiffs moved to extend discovery.6 On July 19, 2019, defendants filed a
motion for summary judgment. On July 31, 2019, while defendants' summary
judgment motion was still pending, the judge entered an order granting
plaintiffs' motion, extending discovery until August 11, 2019, and rescheduling
the arbitration date to August 22, 2019. The July 31 order noted that the
6
Plaintiffs had previously been granted an extension of discovery from March
14 to June 12, 2019, by order dated March 15, 2019.
A-0530-19T2
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extension was granted based on "exceptional circumstances" demonstrated by
plaintiffs' counsel in a certification averring that his failure to supply expert
reports and depose the previously unidentified nurse was due in part to his
mother's passing on July 7, 2019, after a four-month illness.
Prior to the August 16, 2019 return date for defendants' summary
judgment motion, in an August 8, 2019 letter to the court, plaintiffs' counsel
"request[ed]" that defendants' "[m]otion for [s]ummary [j]udgment be dismissed
as . . . premature" because he had just served expert reports on defendants and
completed the deposition of the nurse. Counsel also indicated that he had
"contacted [his] adversary . . . requesting a two[-]week adjournment . . . as [he
had] been ill since July 21, 2019[,]" but his adversary "could not consent as she
had to hear back from her client." Counsel therefore requested the court to
dismiss the summary judgment motion as premature "or in the alternative"
"adjourn" the motion "to August 30, 2019." The judge did not acquiesce to
either of counsel's requests. 7
Trial courts have considerable discretion when ruling on adjournment
applications. Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003).
7
The record on appeal does not contain a copy of the order denying plaintiffs'
request for an adjournment.
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[T]here are two conditions which must exist to warrant
an appellate court in nullifying a ruling of the trial court
made in the exercise of a conceded discretion. The first
is that the judicial action must have been clearly
unreasonable in the light of the accompanying and
surrounding circumstances, and the second condition is
that the ruling must have resulted prejudicially to the
rights of the party complaining.
[Smith v. Smith, 17 N.J. Super. 128, 132-33 (App. Div.
1951).]
"Essentially it is the manifest denial of justice to a party that constitutes
an abuse of discretion." Id. at 133. See also State v. Miller, 216 N.J. 40, 47
(2013) ("[A] trial court's abuse of discretion in denying an adjournment request
does not require reversal absent a showing of prejudice."). Here, considering
the manner and surrounding circumstances under which the request was made,
we discern no abuse of discretion in the denial of the adjournment, particularly
since plaintiffs have not shown how they were prejudiced.
Plaintiffs further contend that because neither party strictly complied with
the procedural requirements of Rule 4:46-2(a) and (b), the judge viewed the
evidence in the light most favorable to defendants, contrary to the Brill standard.
In support, plaintiffs point to the judge's recitation of the factual background ,
wherein the judge accepted defendants' version of the facts notwithstanding
plaintiffs' conflicting account.
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Under Rule 4:46-2(a), . . . a party moving for summary
judgment is required to submit a "statement of material
facts," which must "set forth in separately numbered
paragraphs a concise statement of each material fact as
to which the movant contends there is no genuine issue
together with a citation to the portion of the motion
record establishing the fact or demonstrating that it is
uncontroverted." Rule 4:46-2(b) requires a party
opposing a motion for summary judgment to "file a
responding statement either admitting or disputing each
of the facts in the movant's statement." Rule 4:46-2(b)
provides that "all material facts in the movant's
statement which are sufficiently supported will be
deemed admitted for purposes of the motion only,
unless specifically disputed by citation conforming to
the requirements of paragraph (a) demonstrating the
existence of a genuine issue as to the fact." These
requirements for the filing of statements of material
facts by parties to a motion for summary judgment are
designed to "focus . . . attention on the areas of actual
dispute" and "facilitate the court's review" of the
motion. Pressler [& Verniero], [Current N.J. Court
Rules, cmt. 1.1 on R. 4:46-2 (2003)].
[Claypotch v. Heller, Inc., 360 N.J. Super. 472, 488
(App. Div. 2003).]
Here, defendants filed a statement of material facts to support their
summary judgment motion as required by Rule 4:46-2(a). In opposition,
plaintiffs filed a non-compliant responding statement, which permitted
defendants' facts to be deemed admitted for purposes of the motion under Rule
4:46-2(b). We acknowledge that in his factual findings, the judge omitted facts
that were in dispute. Notably, contrary to plaintiffs' account, the judge found
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that in transferring Rose from her wheelchair to the stretcher, "Phillips . . .
wrapped his arms around [Rose's] mid-section" and Kobus and Phillips "gently
placed [Rose] on the stretcher." However, in adjudicating the motion, the judge
also accepted plaintiffs' expert opinion that defendants were negligent in
transferring Rose to the stretcher. In any event, plaintiffs have once again failed
to demonstrate prejudice given our de novo review of the judge's decision and
our determination that the disputed facts were not material to defendants'
entitlement to statutory immunity as a matter of law. The immunity simply
cannot be surmounted where, as here, defendants' conduct was at worst merely
negligent.
Affirmed.
A-0530-19T2
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