NANCY GOLDBERG and MARSHALL GOLDBERG, wife et al. v. AT HOME MEDICAL, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3963-06T13963-06T1

NANCY GOLDBERG and MARSHALL

GOLDBERG, wife and husband,

Plaintiffs-Appellants,

v.

AT HOME MEDICAL, INC.,

Defendant-Respondent,

and

SUNRISE MEDICAL, INC.,

Defendant.

 

Argued January 15, 2008 - Decided

 
Before Judges Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-1937-04.

Daniel G.P. Marchese argued the cause for appellants (Morris, Downing & Sherred, attorneys; David L. Johnson, Paul G. Hunczak, Mr. Marchese and Douglas Gray, of counsel and on the brief).

Michael S. Bubb argued the cause for respondent (Bubb Grogan & Cocca, attorneys; Mr. Bubb, of counsel; Amanda L. Best, on the brief).

PER CURIAM

Plaintiffs Nancy Goldberg and Marshall Goldberg appeal from a February 13, 2007 order of the Law Division that involuntarily dismissed their negligence claim against defendant At Home Medical following the close of their proofs at trial. See R. 4:37-2(b). We reverse.

The trial evidence showed that in 2002, plaintiff began working as a hospice nurse for the Somerset Hills Visiting Nurse Association (VNA) in Bernardsville. Her duties included caring for terminally ill patients in their homes.

On March 10 or March 12, 2003, plaintiff visited the home of Frank Nunez, a bedridden patient who lived in Martinsville. Nunez was seventy-eight years old, five feet eight inches tall, and weighed more than three hundred pounds; he suffered from lymphedema, the "swelling of the body due to fluid retention." Plaintiff's duties with respect to Nunez's care included maintaining his catheter; monitoring his skin, lungs, and vital signs; and changing the sheets on his bed. Located in Nunez's home were a hospital bed, an overhead trapeze, a bedside stand, a "Hoyer lift," and a bedside commode. Hoyer is a brand of patient lift manufactured by Sunrise Medical, and which At Home Medical supplied to Nunez. Plaintiff testified that At Home Medical's delivery technician, Miguel "Mike" Caceres, had instructed Nunez's daughter, Sandy, on how to use that particular Hoyer lift. When plaintiff went to Nunez's home, she reviewed the instructions with Sandy, and "[Sandy] showed [plaintiff] that she knew how to work [the lift]."

The VNA had a policy that a nurse must be present whenever a patient had to get out of bed for mechanical repairs to the bed. Plaintiff was sent to Nunez's home because Caceres had to replace the motor on Nunez's hospital bed, which required him to take the bed apart.

Before plaintiff used the lift to remove Nunez from the bed, she tested it by "pump[ing] it up" and "releas[ing] it." She and Caceres then rolled Nunez over, she put the Hoyer lift's sling underneath Nunez, and they rolled Nunez back over the sling. Then she and Caceres used the lift to pump Nunez as high as the lift would elevate him, and they slid the lift three feet away from the bed so Caceres could replace the motor. After Caceres completed work on the bed, which took about twenty-five minutes, plaintiff and Caceres moved Nunez back over the bed while he was still in the lift.

Plaintiff testified that when Caceres tried to lower Nunez back to the bed, the bed did not work. Although she and Caceres raised the bed underneath Nunez as high as it would go, Nunez remained six to eight inches above the bed.

By that time, the straps holding Nunez were cutting into his legs because he suffered from edema. Plaintiff determined, however, not to call the emergency squad, believing that because of Nunez's edema, they should not wait for the emergency squad to get there. She testified that, at Caceres's suggestion, she and Caceres decided to cut the straps to the sling holding Nunez above the bed, using a box cutter belonging to Caceres.

She and Caceres positioned themselves on the sides of the bed. She held her hand under Nunez's back while he cut the bottom strap supporting Nunez's legs. Then Caceres cut the top strap holding Nunez on his side. Caceres handed the box cutter to plaintiff, who first cut the leg strap, and then cut the upper strap with her right hand while her left hand was under Nunez. Plaintiff testified that Nunez then fell onto her left hand, and that she "felt a pop in [her] back on the right side," and a "tenderness in her right buttock."

Plaintiff intended to read portions of Caceres's deposition testimony as part of her case. Instead of having plaintiff read the deposition to the jury, for purposes of the Rule 4:37-2(b) motion, with the consent of the parties, the court considered the following testimony from the deposition transcript.

Caceres testified that when he arrived at Nunez's home to repair the bed, plaintiff already had Nunez elevated in the lift and out of the bed. He testified that cutting the straps was plaintiff's suggestion, and after raising the bed, the distance between Nunez and the bed was only one inch. Using a steak knife from Nunez's kitchen, plaintiff cut each of the straps. Caceres was positioned on the same side of the bed as was plaintiff. As plaintiff cut each strap, he would grab the strap and lower Nunez to the bed. They only cut the two straps at Nunez's feet, and they lifted the other two straps out of the Hoyer lift.

Nunez was not harmed during the incident. As a result of her injury, plaintiff only worked sporadically. She received physical therapy and spinal injections of pain medication and cortisone. In April 2004, she underwent lumbar surgery.

Plaintiff filed a products liability action against Sunrise Medical. She also sued the supplier, At Home Medical, for whom Caceres was employed. The claims against At Home Medical were for products liability and for negligence. She asserted that At Home Medical was negligent in failing to properly maintain and service the Hoyer lift, breaching its duty of care to her. She also claimed that At Home Medical failed to properly supervise Caceres.

During discovery, Sunrise filed a motion to set a date certain for the identification of expert witnesses, and the judge ordered that by June 30, 2005, later extended to July 30, 2005, the parties identify experts and provide expert reports. The court subsequently denied plaintiff's motion to again extend the deadline.

At Home Medical and Sunrise filed motions for summary judgment grounded on, among other things, plaintiff's failure to obtain an expert to support her claim. At the first of two oral arguments on the motions, the trial judge continued the motions so that the depositions of Caceres, and At Home Medical's director of operations, Manny Chirico, could be taken to ascertain the extent of their knowledge of the circumstances and to determine if they were qualified to testify as experts. After oral argument on January 6, 2006, the judge granted summary judgment with respect to the products liability claims against each defendant, thus dismissing Sunrise from the case. The judge dismissed the products liability claims because he found the Hoyer lift to be a "complex instrumentality" requiring an expert to explain its intricacies to a jury. The judge also found that neither Caceres nor Chirico were experts with regard to the design or manufacture of the lift.

The court reasoned that plaintiff failed to put forth evidence of a defect in either the design or manufacture of the lift. It noted that the lift had not been produced and could not be located, and that it was never photographed, inspected, or tested. Plaintiff produced no expert to establish a product defect, and the deadline for producing an expert had passed. The court also dismissed the products liability claims because "[n]othing in the evidence indicate[d]" that plaintiff's injury was caused by the allegedly defective lift, but instead by the decision to cut the straps on the lift.

The judge denied At Home Medical's motion for summary judgment with respect to plaintiff's negligence claims. He stated that "plaintiff can rely on the doctrine of res ipsa loquitur to prove that the defendant was negligent in its maintenance or operation of the lift." But the judge qualified that statement. He said:

[P]laintiff must prove, one, the accident which produced the injury was one which does not happen without negligence on the part of defendant. Two, the instrumentality which caused the accident was under the exclusive control of the defendant. Three, the circumstances indicated that the event was not caused or contributed to by any act or neglect on the part of the injured person, relying on [Eaton v. Eaton, 119 N.J. 628, 639 (1990)].

The court found an issue of fact as to whether At Home Medical was "negligent in regards to the operation and/or maintenance of the lift." It also found an issue of material fact "as to whether the lift . . . was in [At Home Medical's] exclusive control." Finally, the court found an issue of fact as to whose decision it was to cut the straps, which was relevant to whether plaintiff contributed to her own injury. The court added that "the conclusion that lifts do not malfunction on their own . . . can be reached based on common knowledge without resort to expert testimony; thus, plaintiff does not need an expert to prove [At Home Medical's] negligence." The court also noted that "even if At Home [Medical] is not responsible for negligently operating and/or maintaining a lift, it may be responsible for the negligence of . . . Miguel Caceres, its technician, who cut the straps."

The claim against At Home Medical went to trial. Following the close of plaintiff's case, the court granted At Home Medical's motion for dismissal. The judge provided a number of reasons for his decision. He noted that the decision to cut the straps, even if made by Caceres, was an intervening force, unrelated to whether the Hoyer lift malfunctioned. The court found no evidence that it was At Home Medical's responsibility to repair or maintain the Hoyer lift, or that it caused the lift to malfunction.

The judge found that plaintiff failed to prove all of the elements necessary to entitle her to a res ipsa loquitur charge. He reasoned that plaintiff did not show that the instrumentality causing the accident was within the exclusive control of At Home Medical. The judge observed that the Hoyer lift had been in the Nunez home "for some time," that Nunez's daughter and Nunez's nurse operated it, and that res ipsa loquitur could not apply because plaintiff failed to show that the event was not caused or contributed to by "any act or negligen[ce] on the part of the injured person." The judge added that even if it was Caceres's idea to cut the straps, as plaintiff testified, plaintiff allowed the straps to be cut and participated in the cutting of the straps.

The court also stated that "there's no proof from an expert that the cutting of the straps in the fashion that it did and it was cut was negligence on the part of [Miguel] Caceres." The court found relevant that plaintiff did not join Caceres as an individual defendant, which would lead to the "question [of] whether [Caceres's] acts were within the scope of employment and under respondeat superior implicate At Home [Medical] or whether or not he went out of his role and [h]is job description, his job duties, and, therefore, he would have been personally liable." The judge held that respondeat superior "is not in the case."

Against this background, plaintiff's first argument is that she was entitled to a res ipsa loquitur inference, which would have precluded the trial court from dismissing the case. Plaintiff asserts that prior to trial the judge ruled that such an inference was applicable, and that her proofs were identical at both summary judgment and the motion for involuntary dismissal. Plaintiff relies on the law of the case doctrine, which is a discretionary doctrine that "requires judges to respect unreversed decisions made during the trial by the same court or a higher court regarding questions of law." Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988). "[P]rior decisions on identical legal issues in the same case should be followed unless the prior decision was clearly erroneous." Franklin Med. Assocs. v. Newark Pub. Sch., 362 N.J. Super. 494, 512 (App. Div. 2003). At Home Medical argues that at trial, plaintiff did not prove the facts that she alleged at the time of summary judgment.

The doctrine of res ipsa loquitur permits a jury to draw an inference of negligence from circumstantial evidence. Eaton v. Eaton, 119 N.J. 628, 637-38 (1990). For the doctrine to apply, a plaintiff must demonstrate: "'(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 plaintiff's own voluntary act or neglect.'" Jerista v. Murray, 185 N.J. 175, 192 (2005) (quoting Buckelew v. Grossbard, 87 N.J. 512, 525 (1981)).

Here, the trial judge ruled, in addressing At Home Medical's summary judgment motion, that disputed facts existed as to whether the lift was in At Home Medical's exclusive control, and whether plaintiff's injury was the result of her own voluntary act. The court's decision left open whether the doctrine of res ipsa loquitur would be applied after plaintiff presented her evidence at trial. Under these circumstances, the law of the case doctrine did not preclude the court from making a determination of whether res ipsa loquitur applied after plaintiff presented her case to the jury. That said, we also agree with the trial judge that substantively, plaintiff's proofs were insufficient to invoke the res ipsa inference.

At trial, plaintiff presented sufficient evidence to meet the first prong of the res ipsa test, whether "the occurrence itself ordinarily bespeaks negligence." Jerista, supra, 185 N.J. at 192. Plaintiff did not, however, present evidence to meet the second prong of the test, that "the instrumentality was within the defendant's exclusive control." Ibid. "The exclusive control prong does not require that a plaintiff exclude all other possible causes of an accident, only that it is more probable than not that defendant's negligence was a proximate cause of the mishap." Luciano v. Port Auth. Trans-Hudson Corp., 306 N.J. Super. 310, 313 (App. Div. 1997) (citing Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291-92 (1984)). "The sole question . . . is whether the present facts . . . permit a reasonable inference that defendant's control over the [instrumentality] was such that it would be responsible for any negligence connected with it." Id. at 314.

Here, this particular Hoyer lift was delivered to the Nunez home during the winter before the March 2003 incident, and though plaintiff could not remember the date of delivery, she admitted that the lift had been there for "at least a couple of weeks." She also testified that she explained to Nunez's daughter how the lift worked, and that prior to the incident, Nunez's daughter had put Nunez into the lift without assistance. Thus, the Hoyer lift had been in Nunez's home for at least a few weeks prior to this incident, and prior to its malfunction, it had been operated both by a visiting nurse and by Nunez's daughter. This evidence does not show that At Home Medical had sufficient control over the lift to make it more likely to have been negligent than any other person who operated the lift. While plaintiff was not required to exclude these other possibilities, she was required to show that it was more probable than not that At Home Medical was negligent. Merely showing that At Home Medical supplied the lift and did not remove it for repairs before this incident does not meet this standard.

We also conclude that plaintiff has not met the third prong of the res ipsa loquitur test, that "there is no indication in the circumstances that the injury was the result of plaintiff's own voluntary act or neglect." Jerista, supra, 185 N.J. at 192. A factual dispute as to whether a plaintiff's own voluntary act caused a resulting accident is sufficient for a court to decide not to charge the jury with res ipsa loquitur. Bahrle v. Exxon Corp., 279 N.J. Super. 5, 35 (App. Div. 1995), aff'd, 145 N.J. 144 (1996). Plaintiff decided not to call the emergency squad. It was either her idea, or she concurred with Cacares's idea, to cut the straps. She cut two of the straps on the lift suspending the patient, and she placed one of her arms under the three hundred pound patient when she cut the final strap. Thus, a jury could conclude that her "injury was the result of [her] own voluntary act or neglect." Jerista, supra, 185 N.J. at 192.

Consequently, we agree with the trial court that plaintiff was not entitled to a res ipsa loquitur inference. That does not, however, end the inquiry. Regardless of whether plaintiff was entitled to a res ipsa loquitur inference on the question of whether the lift malfunctioned, plaintiff's claim that At Home Medical was negligent, through the actions of its employee, Caceres, in cutting the straps, should have survived the motion for involuntary dismissal.

To establish negligence, a plaintiff must show: "(1) a duty of care owed by defendant to plaintiff; (2) a breach of that duty by defendant; and (3) an injury to plaintiff proximately caused by defendant's breach." Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997); see also Hoke v. Pioneer State Bank, 167 N.J. Super. 410, 414 (App. Div.), certif. denied, 81 N.J. 290 (1979). Here, plaintiff had the burden of establishing the standard of reasonable care applicable to a person in Caceres's position at the time the lift malfunctioned; a violation of that standard; and a causal connection between the violation and plaintiff's injury. Hoke, supra, 167 N.J. Super. at 414.

At trial, the court found that At Home Medical, as supplier of the lift and as "the responsible party for [the] lift, owed a duty to plaintiff to adequately and properly supervise its employee, who was charged with the maintenance of, repair of the lift." The court found, however, that plaintiff failed to present evidence that the decision of Caceres to cut the straps with the box cutter, and his act of cutting the straps, could constitute negligence. We disagree with that conclusion.

"Whether a duty of care exists is a question of law that must be decided by the court." Jerkins ex rel. Jerkins v. Anderson, 191 N.J. 285, 294 (2007). That question is "one of fairness and policy that implicates many factors." Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996). These include the foreseeability of harm, 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." Id. at 572-73. Under the circumstances here, Caceres owed a duty to plaintiff. He and plaintiff were working together for the purpose of lifting the patient and replacing the bed motor. It was foreseeable that the patient or plaintiff could be injured by an improper act of Caceres in returning Nunez to the bed.

The next question then is whether the jury could reasonably infer from the trial evidence that Caceres breached that duty.

Negligence may be defined as a failure to exercise, in the given circumstances, that degree of care for the safety of others, which a person of ordinary prudence would exercise under similar circumstances. It may be the doing of an act which the ordinary prudent person would not have done, or the failure to do that which the ordinary prudent person would have done, under the circumstances then existing.

[Model Jury Charge (Civil), 5.10A, "Negligence and Ordinary Care" (approved before 1984).]

Under the facts here, whether Caceres was negligent was a question for the jury.

The judge dismissed plaintiff's claim against At Home Medical on a Rule 4:37-2(b) motion. In examining a motion for involuntary dismissal under Rule 4:37-2(b), we must "'examine the evidence, together with legitimate inferences which can be drawn therefrom, and determine whether the evidence could have sustained a judgment in favor of the party who opposed the motion.'" Barsotti v. Merced, 346 N.J. Super. 504, 512 (App. Div. 2002) (quoting Tannock v. N.J. Bell Tel. Co., 223 N.J. Super. 1, 6 (App. Div. 1988)). We will reverse an order of dismissal "if, accepting as true all evidence supporting the party opposing the motion and according her the benefit of all favorable inferences, reasonable minds could differ." Luczak v. Twp. of Evesham, 311 N.J. Super. 103, 108 (App. Div.) (citing Dolson v. Anastasia, 55 N.J. 2, 5 (1969)), certif. denied, 156 N.J. 407 (1998). When reviewing such dismissal motions we are not concerned with "the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson, supra, 55 N.J. at 5-6.

Applying this standard, the trial testimony showed that according to plaintiff, cutting the straps was Caceres's idea; that Caceres did, in fact, cut the straps, using his own box cutter. As a result, Nunez landed on plaintiff's arm and injured her back. It was for the jury, not the court, to decide whether Caceres acted as an ordinary prudent person would under the circumstances. Contrary to the trial judge's conclusion, expert testimony was not necessary to aid the jury in its decision. Although plaintiff may also have been negligent, that would not affect whether Caceres breached his duty of care to her.

The trial court also reasoned that plaintiff's failure to name Caceres as a defendant was a factor in its decision to dismiss plaintiff's claim. The judge concluded that the doctrine of respondeat superior was not applicable. We disagree.

"Under respondeat superior, an employer can be found liable for the negligence of an employee causing injuries to third parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment." Carter v. Reynolds, 175 N.J. 402, 408-09 (2003). To establish liability, a plaintiff must show "(1) that a master-servant relationship existed and (2) that the tortious act of the servant occurred within the scope of that employment." Id. at 409. Here, it is not disputed that Caceres was an employee of At Home Medical. The question is whether under the circumstances a jury could find that he was acting within the scope of his employment in assisting plaintiff by cutting the straps.

In determining whether conduct occurs in the scope of employment, New Jersey analyzes the facts under the Restatement (Second) of Agency. Id. at 411-12. The factors to be considered are whether:

"(a) [the conduct] is of the kind [the employee] is employed to perform;

(b) it occurs substantially within the authorized space and time limits;

(c) it is actuated, at least in part, by a purpose to serve the master,

. . . .

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master."

[Ibid. (quoting Restatement (Second) of Agency 228 (1958)).]

When viewing the facts in a light most favorable to plaintiff, a jury could conclude that Caceres was acting within the scope of his employment in deciding to cut the straps of the Hoyer lift and in physically cutting them. Although he was present to replace the motor on the bed, Caceres was trained in the operation of Hoyer lifts, and it was part of his job to instruct patients on their operation. No dispute exists that to fix the motor on the bed, the patient had to be removed from the bed. It was foreseeable that Cacares could be called upon to assist the nurse in returning the patient to the bed. Both the bed and the lift were furnished by Caceres's employer. A jury could conclude that Caceres's actions were "so . . . incidental to" his normal activities in repairing the motor on the bed that his conduct was within the scope of his employment. See Restatement (Second) of Agency 229(2) (1958). It was therefore a jury question as to whether Caceres was acting within the scope of his employment so as to impose liability on At Home Medical under the doctrine of respondeat superior.

 
In sum, we reverse the order involuntarily dismissing plaintiff's complaint and remand for further proceedings consistent with this opinion.

Marshall Goldberg has asserted a consortium claim. References to plaintiff are to Nancy Goldberg.

The record is not clear on which date the incident occurred.

Plaintiff has not appealed from that determination.

(continued)

(continued)

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A-3963-06T1

February 11, 2008