ESTATE OF MADELINE F. BURNETT v. WATER'S EDGE CONVALESCENT CENTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4970-06T24970-06T2

ESTATE OF MADELINE F. BURNETT,

by and through her Administratrix

ad Prosequendum, MARY J. KELLY,

Plaintiff-Appellant,

v.

WATER'S EDGE CONVALESCENT

CENTER and LLMD ASSOCIATES, INC.

d/b/a WATER'S EDGE NURSING AND

REHABILITATION CENTER,

Defendants-Respondents.

_____________________________________

 

Argued May 13, 2008 - Decided

Before Judges Cuff, Simonelli and King.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2896-04.

David R. Cohen argued the cause for appellant (Stark & Stark, attorneys; Mr. Cohen, of counsel; Brian P. Murphy, on the brief).

Walter F. Kawalec, III, argued the cause for respondents (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec, on the brief).

PER CURIAM

Plaintiff, Mary J. Kelly, representing the estate of Madeline F. Burnett (decedent or Burnett), appeals from the April 18, 2007 denial of a motion for reconsideration of an order of the Law Division of March 2, 2007 granting summary judgment to defendants Water's Edge Convalescent Center and LLMD Associates (collectively, Water's Edge). Burnett, an elderly woman, was a resident at the Water's Edge Nursing and Rehabilitation Center in Trenton for less than two years. The estate sued to recover damages for her fractured right heel area and for other physical injuries arising from her "abuse and neglect."

We conclude that the estate demonstrates a genuine issue of material fact on the right heel injury. We reverse and remand in part on that aspect of plaintiff's claim. On the other injury claims, we affirm the summary judgment for defendants.

This appeal arises out of the alleged mistreatment of decedent by the physicians, nurses, and employees of Water's Edge between the date she entered the facility (October 24, 2002) and the date, shortly before her death, she left the center (August 2, 2004). The two-count complaint filed by the estate on November 8, 2004 alleged that the employees of Water's Edge deviated from the requisite standard of care. The estate alleged that this breach of duty caused the decedent to suffer "a fractured right heel; decubitous pressure ulcers, unexplained severe right shoulder and chest swelling, bruising and inflammation, possibly indicating the presence of a dislocation or fracture, sepsis, numerous skin tears, lacerations, dehydration, infections, unsanitary living conditions and poor hygiene care." The estate sought compensation for decedent's economic and noneconomic injuries under both general negligence principles and the applicable statutory sections of the New Jersey Nursing Home Responsibilities and Rights of Residents Act, N.J.S.A. 30:13-1 to 30:13-17.

Decedent, age eighty-four, entered Water's Edge on October 24, 2002, with a significant medical history. She suffered from diabetes, hypertension, chronic obstructive pulmonary disease, congestive heart failure, mitral valve regurgitation, aortic valve insufficiency, osteoperosis, gout, a penicillin allergy, degenerative joint disease, and Parkinson's disease. She had received bilateral knee replacements, a Greenfield inferior vena cava filter, a pacemaker, and an open reduction internal fixation surgery to repair her right hip. Decedent's early stay at Water's Edge was interrupted by two trips to Capital Health System (CHS) for deep venous thrombosis clots and congestive heart failure. At the time of the first admission to CHS, decedent demonstrated a rash at the groin and buttock areas. When she again returned to CHS, she exhibited a stage I decubitus ulcer. Upon her return to Water's Edge, she was "full weight bearing with standard walker with minimal assistance." She had red marks on her heels and sacrum. Water's Edge then chose to implement an ambulation regimen.

The deposition of one of Water's Edge workers, Sue Holt, describes the difficulty with which decedent ambulated in late December 2002. Holt agreed that the use of one aide on each side of decedent to support her under the armpits, while a third aide pushed a wheelchair behind decedent, was a common practice at Water's Edge. She read an office note from December 31, 2002 which stated "[decedent] ambulated approximately eight feet, with great difficulty; became extremely fatigued and shaking, after eight feet. [Decedent] stated I can't go any more. It is clear to this worker that ambulation is very difficult for [decedent]." The Water's Edge "Restorative Nursing Flow Sheet" from this period supports this assessment of decedent's capabilities. However, contrary to the above note, the flow sheet indicates decedent did not receive restorative therapy on December 31.

The flow sheet suggests a marked improvement in decedent's strength in 2003. It shows that decedent was able to ambulate a distance of sixty feet on January 10, 2003. There was no restorative therapy on January 11 and 12; decedent refused to participate in therapy on January 13. This was because of the alleged occurrence of the central event in this appeal. Decedent complained to one of the nurses on the afternoon of January 13 that she was bumped on her right heel the day before by the wheelchair pushed behind her. The heel was swollen, bruised, and tender upon examination. The facility scheduled an x-ray. An employee called decedent's daughter, Mary Kelly, to tell her about the incident. This information was noted in decedent's progress notes.

Kelly testified during her deposition that someone from the facility informed her that "one of the aides had hit [decedent] in the back of the heel with the wheelchair." The employee allegedly stated "that it was an accident and somebody had run into her with a wheelchair." Decedent shared the same information with Kelly, but did not identify the aide.

The x-ray revealed an acute fracture of the posterior calcaneus with diastasis. An orthopedic consult on the following day revealed pain upon palpation and difficulty in motion, and an avulsion fracture involving decedent's Achilles tendon. The orthopedist placed a compress wrap on decedent's right foot. Decedent apparently informed a nurse practitioner of the incident as well. During the next week, decedent received pain medication but refrained from additional therapy.

Decedent resumed ambulation therapy on January 22, 2003 but the pain in her right heel continued and a stage II pressure ulcer developed. Water's Edge cared for the wound, which healed by the end of February. The heel fracture healed by the time of a March 17, 2003 radiographic examination, but decedent complained of minimal continued pain. In her expert report, Nurse Bonnie Tadrick concluded "[t]o within a reasonable degree of nursing certainty, the staff at Water's Edge Nursing Home failed to provide adequate supervision during restorative therapy and as a result Mrs. Burnett suffered a fractured right heel secondary to a wheelchair making contact with her right heel. . . . [S]he suffered a painful skin breakdown on her right heel; necessitating daily wound care for several weeks."

The expert report of Dr. John Kirby describes in great depth decedent's medical problems over the following one and one-half years. He noted decedent's limited mobility after the right heel fracture. She was hospitalized a number of times. She was treated for a urinary tract infection and upper respiratory tract infection on February 16, 2003 and the record reflected an old bruise over her left breast. She complained of right thigh and bilateral heel pain. She also exhibited pressure ulcers on both feet and a stage I sacral pressure ulcer.

A bone scan ordered on February 24, 2003 revealed an acute fracture of the twelfth thoracic vertebral body and fractures of the anterior ends of multiple ribs. Decedent suffered an acute right hemispheric stroke on March 23, 2003. The stroke left decedent with weakness on her left side and a weak voice. She presented a stage I right heel decubitus at the same time.

Shortly after the stay at Robert Wood Johnson Hospital (RWJ) for the stroke, decedent began to exhibit skin tears along both arms. The Water's Edge nurse progress notes called for the cleansing of the wounds, but did not refer to the etiology of the tears. The physician notes throughout 2003 continued to refer to decubitus pressure ulcers on decedent's sacrum and coccyx, and the development of skin tears on the arms, shins and toe. She was treated for pneumonia in September 2003. There was a physician's note reflecting "several areas of healing ecchymosis on lower extremity" on December 22, 2003.

Decedent was readmitted to RWJ in March 2004 with complaints of abdominal pain. The CT scan reflected a cystic left lower quadrant mass, sigmoid colon wall thickening, and diverticulosis. The Water's Edge physician note for the following month observed a skin tear on the wrist and "scattered areas of (<2 cm) ecchymosis." Decedent was treated at RWJ again at the end of April for dehydration and urosepsis. She exhibited stage II ulcers on her left buttock and sacrum, a stage I ulcer on her left elbow, and a stage III ulcer on her right buttock. These sores continued to plague decedent through 2004. It was at this time that the Water's Edge physician noted ecchymosis of the extremities at "various stages of healing."

Tadrick and Kirby referred to the observation around this time of swelling and bruising on decedent's upper torso and right shoulder. Tadrick noted a July 17, 2004 nursing assessment showing "a swollen and extensively bruised right shoulder area that was warm to the touch, indicating inflammation of the tissues." Decedent was sent to CHS, where the physician documented a large hematoma with moderate bruising. The physician noted "[o]ld areas of ecchymosis scattered over proximal humerus area and shoulder area." The latter observation raised in Tadrick "concern of the possibility of resident abuse."

The nursing staff documented swelling and bruising of decedent's right arm and, despite earlier signs of improvement, right shoulder in July 29 and July 30 entries. The staff and the nurse practitioner found a hard mass in decedent's upper chest consistent with a dislocation. Kelly was notified of decedent's movement to Mercer Medical Center, where the latter was diagnosed with urosepsis. Dr. Kirby states that decedent was treated at CHS, not Mercer, during the month of August. The CHS hospital notes observed several bruises on decedent's right forearm and breast, right leg, and lower right extremities. The hospital contacted social services "to rule out possible physical abuse." Dr. Kirby noted that decedent's platelet count and coagulation results were "all within the normal range." Tadrick noted that there were no medical records provided to determine the cause of the injuries, but stated that "[t]he appearance of unexplained bruising and swelling on a resident is a matter of great concern and the facility must investigate the possibility of resident abuse." Tadrick concluded that "[u]nexplained bruises, hematoma formation, and edema of her right upper thorax and shoulder area occurred during her residency at Water's Edge and raise a high index of suspicion of ill treatment by commission."

Dr. Kirby opined that "[t]he accident wherein Ms. Burnett's right heel was run over by a wheelchair could easily have been prevented if those attending her had been more cautious." He attributed the entirety of decedent's infections, dehydration and pneumonia to the immobility caused by the right heel fracture. He concluded as well that:

The number of skin tears and bruises that Ms. Burnett sustained while a resident at Water's Edge seems inordinately high. Uniformly, incident reports were not filed and, as far as I can ascertain from the copied records, no investigations of the etiologies of the various skin tears or bruises were performed. The paucity of information especially surrounding the extensive bruising found 8/04 and the marked axillary deformity/bruising 7/04 raise my suspicion about abuse and/or neglect of Ms. Burnett by the Water's Edge staff.

He concluded within a reasonable degree of medical certainty that Water's Edge's deviations from the requisite standard of care directly caused decedent to sustain "a fracture of the right heel, developed immobility associated decubitus ulcerations and pulmonary and urinary tract infections, and sustained repetitive bruises and skin tears."

Water's Edge presented the expert report of Dr. Raymond E. Cogen. He opined that the stroke, not the right heel fracture, was the cause of decedent's decline in health. He ridiculed Tadrick and Kirby's speculative reliance on decedent's statements to reach their conclusions about the right heel fracture. However, clearly Dr. Cogen's opinion misinterpreted the facts as well. For example, Dr. Cogen ascribed decedent's January 2003 complaint to her "dementia," even though she did not suffer from dementia until after the March 2003 stroke, and Dr. Cogen himself recognized that she was adequately oriented and could converse appropriately at the time of the right heel fracture.

As for the other medical problems, Dr. Cogen noted that decedent's care plan was adjusted after her stroke to account for her increased potential for "skin breakdown." He thought that "even when all appropriate care is provided, as in this case, pressure ulcers still occur in certain patients." He ascribed decedent's skin tears, bruising and swelling to her use of two anticoagulants, Coumadin and Plavix, and to her paperlike skin (senile purpura). He concluded that "[i]t is simply not possible to determine the institution at which each of these skin lesions occurred, but it is my opinion, within a reasonable degree of medical certainty that the skin tears, bruising and hematomas were the consequence of Plavix and paper thin skin and not any act or failure to act by [Water's Edge]."

To complete the summary judgment record, the estate presented select pages of the deposition of social worker Kathleen Yapp. Yapp had received no formal medical training. She was required to attend forty hours of continuing education to maintain her social work license, and undertake competency exams each year on the detection of geriatric abuse. Yapp testified that she interviewed decedent when the latter was admitted to the hospital in August 2004 with stage III decubitus ulcers. At that point, it was necessary to ask the State, through the Office of the Ombudsman for the Institutional Elderly, to review the case for abuse. Yapp testified that "any time either myself or the nurse went near Ms. Burnett, she was very fearful. And I actually put in quote, quotations, she was fearful of being physically examined." Decedent would "cringe" or "shrink back" as if she did not wish to be touched. Yapp stated that she did not receive a definitive response from the physician about the presence of abuse: the physician noted that decedent was nonverbal and had other comorbidities, but that the wound "could" suggest abuse. Yapp concluded that there was abuse in this case and submitted a report to that effect.

Decedent left Water's Edge on August 2, 2004. She died on October 1, 2004.

I

The judge heard Water's Edge's motion for summary judgment, and the estate's cross-motion for partial summary judgment on the right heel fracture, on March 2, 2007. Like the estate's written submissions on this appeal, the motion judge frequently moved back and forth between the fractured right heel issue and the allegations of abuse.

a. The fractured right heel

Water's Edge argued that there were no facts to support an alleged connection between its actions and decedent's right heel injury. This is because there was no evidence produced by either side to demonstrate that the injury occurred as decedent had explained it to others. The estate did not depose the resident nurses or other employees that aided decedent during her stay at Water's Edge. The sparse evidence in support of the estate's claim that an employee hit decedent's heel with a wheelchair consists of decedent's hearsay statements.

Given the uncertain nature of the evidence, the estate argued for the application of res ipsa loquitur. The estate relied on the fact that decedent could ambulate only with the assistance of one worker on each side and one worker walking behind her with the wheelchair in place. At one point, she required assistance to roll over in bed. As such, the estate argued that Water's Edge employees must have witnessed the accident during their alleged "substandard" care of decedent. It urged that "[t]he only reason [it] cannot prove exactly what happened is, because the defendant failed to properly record the incident."

According to Water's Edge, the provision of restorative therapy was the only situation in which the staff would remove decedent from her bed or aid her attempts to ambulate. The medical charts, however, contained no record of restorative therapy on January 12, 2003. The estate challenged the "conspicuous" absence of notes for that date, and the overall insufficiency of the charts. The estate pointed to incorrect therapy notations for three days on which decedent was not at Water's Edge. It argued as well that the nurses at the facility may have removed decedent from her bed every day, but not labeled the activity "restorative therapy" on the charts because they were not authorized to make entries on the charts. The estate, to put it bluntly, describes Water's Edge's records as a cover-up in violation of federal regulations.

The estate argued that it was "an issue of fact" that decedent suffered a traumatic fracture, and rejected the judge's suggestion that this fracture could have occurred as decedent herself moved her fragile body in or out of bed. Contrary to the showing by Water's Edge that there was no record of ambulation on January 12, 2003, the estate relied on decedent's hearsay to argue that "something happened on that date." The estate conceded there were other days on which Water's Edge made no entries on decedent's chart. Assuming a problem with the hearsay evidence under the "present sense impression" exception, the judge questioned the estate's intent to sway a jury with its conspiracy theory and to ask a jury "to hook together a lot of suggestions that the accident happened no other way."

b. The abuse allegations

Water's Edge argued that there was no factual basis to support the estate's experts' opinions that it deviated from the requisite standard of care, and that this breach resulted in the abuse and neglect of decedent. The judge noted Dr. Cogen's explanation that decedent's skin tears and bruising resulted from senile purpura and the use of Plavix, not from Water's Edge's neglect or abuse. In support of this conclusion, the judge cited an absence of allegations of abuse in the treatment records of other facilities. The judge recognized the suspicions of abuse harbored by Nurse Tadrick and Dr. Kirby, but explained that "neither of them can point to specific conduct or acts [by Water's Edge] which were abusive or neglectful." The judge also referred to the conflict between Yapp's finding of abuse and the agency's failure to find abuse. He explained that "there are really no proofs of any abuse, and [the claim is] speculative in nature and at the very least has the semblance of a net opinion."

c. The court's decision

The judge did not fully resolve the admissibility of decedent's hearsay statements, but noted his inclination to preclude them because they did not qualify as "contemporaneous" statements under N.J.R.E. 803(c)(1). He invited the parties to argue the issue on appeal if "the Appellate Division is desirous of anticipatory reversals or consideration." He concluded, nonetheless, that the grant of summary judgment did not depend on the admissibility of the hearsay statements. Even with the statements, "the same end" would result. The judge reiterated this conclusion at the hearing on the estate's motion for reconsideration. He stated that "there was no evidence that specifically indicated Water's Edge" was the responsible party. Based on the judge's finding that the estate's expert opinions lacked a factual basis, the negligence claims fell.

The standard of practice to which the defendant failed to adhere must be established generally by expert testimony, because a jury generally lacks [] special knowledge to determine the applicable standard of care. And if the plaintiff in a malpractice case such as this fails to present expert testimony, normally it's dismissed at the end of the plaintiff's case with the exception of pulling the wrong tooth or amputating the wrong leg, something that is quite obvious. And that's one of the exceptions.

One is the common knowledge exception, and I don't believe that this case falls within the common knowledge of the res ipsa loquitur situation which has been argued fervently with significance by Mr. Cohen. So in this case I determine that there is no evidence that the defendant was negligent or abusive in its treatment of Ms. Burnett.

And as to the heel fracture, the plaintiff's theory of negligence, as the defendant's agents were assisting Ms. Burnett with her walking, and plaintiff concludes that the aide following her in a wheelchair -- it would be his argument following her with a wheelchair negligently bumped into her heel causing her pain and difficulty walking. However, for there to be any weight to this theory, the plaintiff must be certain that Burnett was undergoing restorative therapy on January 12th, which the records demonstrate -- contradict that theory, and the records clearly show that she was off from restorative therapy on January 11th and 12th and went back to restorative therapy on the 13th. . . . To support that theory, Mr. Cohen, well, must, of course, rely on a hearsay statement of the decedent some two days later or a day later. . . .

As to the alleged abuse, defendant's expert . . . reported that Ms. Burnett had skin like paper, was taking Plavix, both of which result in bruising and skin tears. Plaintiff's experts simply point to the bruising and state there's suspicions, which is the speculative nature to which I address earlier, that Ms. Burnett was abused does not appear to either of them to actually conclude that she was abused, but the -- Mrs. Yapp -- and I'm unclear as to the nature of her portfolio in the scheme of things -- reported the bruising to the State investigation, and the investigation thereafter conducted resulted in a finding of no abuse.

Taking the evidence most -- in the way most favorable to the non-moving party, the plaintiff, the jury would have to partake in what I would consider major speculation to conclude defendant was negligent and/or abusive. They'd have to speculate as to how the plaintiff's heel was fractured, and, second, they'd have to speculate about how the defendant, if it was at all, was abusive.

The judge devoted additional attention to the res ipsa loquitur argument:

I -- to look -- to address the res ipsa loquitur argument, which I necessarily have to incorporate in the decision, in that instance the plaintiff must establish, (1) the occurrence is the one that ordinarily bespeaks negligence, which is something that human condition and Ms. Burnett's human condition cannot be considered by this Court as absolute, despite the 100 percent responsibility argued by plaintiff. The instrumentality causing the injury, i.e., the nursing home de facto, must have been within the defendant's exclusive control. And I draw a line there, only because I believe that there is a bodily element that is equally susceptible to speculation as is the theory of the instance of the happening of the event, particularly as it relates to the speculative nature and the control that the decedent had over her own body or lack of control, which, given my ambient intention to exclude the statement some two days later of the occasion of the happening, how it happened as a result of the statement of the decedent, which has its own evidentiary problems, further removes the absoluteness of the defendants from consideration and light speculation as to what, if any, bodily events might have occurred which would cause the kind of problems plaintiff -- the plaintiff's estate alleges was attributable to the Water's Edge. And there must be no indication that plaintiff's injury was in any way a result of her own voluntary act or neglect.

And that the bigger picture here is one of speculation. The plaintiff cannot make out a claim of res ipsa loquitur. There's no evidence to show how Ms. Burnett actually injured her heel. Plaintiff says that this is the defendant's fault for failing to properly record the incident, but there's nobody to know that there was an incident they failed to report other than the speculation to which I suggested must be employed. And plaintiff had an opportunity to depose employees of the Water's Edge. I'm not acquainted with anything that was developed from any of the employees or whether the depositions were simply abandoned, because there was no initial indication. But there was nothing supportive of that, that I have taken note of in the record.

There's no evidence that the instrumentality caused the injury. Perhaps a wheelchair was in the defendant's exclusive control as it came in contact with the heel. There are other circumstances which could with equal speculation occasion the injury suffered by Burnett. Res ipsa loquitur, it's a method based on inference, and even with the statement in it, it would still require the inference that I think is beyond the nature of res ipsa in this case.

The judge provided little guidance on the resolution of the decubitus ulcer and dehydration claims. Assuming that the right heel fracture caused decedent's immobility, and the immobility caused the ulcers, the judge chose to grant the entire motion for summary judgment in the interest of "judicial economy." He stated that the nature of bed sores "are not subject to this motion," but permitted the estate to "indicate that an issue was developed which the Court declined to address, and they -- if the Appellate Division declares that this should be a partial summary judgment or a full reversal, then God bless us, all, and if not, the same blessing would pertain."

The judge entered an appropriate order the same day, granting Water's Edge's motion for summary judgment and denying the estate's motion for partial summary judgment. The judge entertained the estate's motion for reconsideration on April 13, 2007. At the hearing, the estate argued that there were "three sources of information from three different places as to what happened": (1) the entry of decedent's complaint in the hospital chart; (2) Kelly's repetition of decedent's complaint to her; and (3) Kelly's testimony about the statement made to her by the hospital employee. The judge recognized that the admissibility of the first two examples depended on the reliability of decedent's complaint. The judge refused to apply the exception for present sense impressions, N.J.R.E. 803(c)(1); the exception for statements made to procure medical treatment, N.J.R.E. 803(c)(4); or the exception for statements of trustworthy deceased declarants, N.J.R.E. 804(b)(6). As to the last exception, the judge suggested that there was no "fundamental reliability" to decedent's statement and that the statement referred to therapy on a date in which the records reflected an absence of therapy. The judge entered an order denying the estate's motion for reconsideration on April 18, 2007.

We review de novo the trial court's decision to grant summary judgment. Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). Employing the same legal standard as the trial court, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), it is appropriate to enter summary judgment only when "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 is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). The entirety of the evidence must not be "'so one-sided that one party must prevail as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Liberty Lobby, supra, 477 U.S. at 248, 106 S. Ct. at 2510, 91 L. Ed. 2d at 211.

The moving party has the initial burden to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265, 274 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavit or otherwise, specific contradictory facts showing that there is a genuine issue for trial. Ibid.

This court's role is not to weigh the credibility of evidence, but rather to determine if there is a genuine issue for trial. Liberty Lobby, supra, 477 U.S. at 249, 106 S. Ct. at 2511, 91 L. Ed. 2d at 212. We leave the credibility determinations to the province of the fact finder. Brill, supra, 142 N.J. at 540.

II

Clearly, from the parties' submissions and the argument on the motion, the right heel fracture and injury took center stage in this dispute. The estate actually devotes little attention to the general allegations of abuse and neglect. It relies on "a history of unexplained bruises, hematoma formation, and edema of Decedent's right upper thorax and shoulder area which occurred during her residency at Water's Edge in support of the allegations of abuse." We agree with the motion judge that the estate failed to demonstrate a genuine issue of material fact on this point.

We begin with general negligence principles. Prior to a finding of negligence, we must be satisfied that Water's Edge owed a legal duty to decedent. Baen v. Farmers Mut. Fire Ins. Co. of Salem County, 318 N.J. Super. 260, 266 (App. Div. 1999). Here, there is no dispute that the law imposes a duty on nursing homes to care for its residents. The Nursing Home Responsibilities and Rights of Residents Act sets forth the responsibilities of nursing homes. N.J.S.A. 30:13-3. This includes the duty to "[e]nsur[e] compliance with all applicable State and Federal statutes and rules and regulations." N.J.S.A. 30:13-3h. The appropriate federal regulation prohibits the use of physical abuse or corporal punishment against a resident of a long-term care facility. 42 C.F.R. 483.13(b) (2008). This regulation requires a long-term care facility to develop written policies that prohibit mistreatment, neglect and abuse of the residents. It further requires that the results of internal investigations "must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken." 42 C.F.R. 483.13(c)(4). New Jersey law provides each resident of a nursing home with "the right to a safe and decent living environment and considerate and respectful care . . . including the right to expect and receive appropriate assessment, management and treatment of pain." N.J.S.A. 30:13-5j. The statute creates a private cause of action against a noncompliant nursing home. N.J.S.A. 30:13-4.2.

The estate must further show that Water's Edge's breach of legal duty was the proximate cause of decedent's injuries. Creanga v. Jardal, 185 N.J. 345, 354 (2005); Anderson v. Sammy Redd & Assocs., 278 N.J. Super. 50, 56 (App. Div. 1994), certif. denied, 139 N.J. 441 (1995). To establish a causal link between the defendant's alleged medical negligence and the plaintiff's injuries, it is usually necessary to introduce expert testimony. Creanga, supra, 185 N.J. at 354. We permit expert testimony "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. We require expert testimony "when the subject matter is so esoteric that jurors of common judgment and experience cannot form a valid judgment." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 702 (2008).

We do not require the production of expert testimony, however, when the common knowledge of the jury "is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts." Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999). This common knowledge exception applies in those rare cases in which "the mistake was obviously the result of negligence." Id. at 471.

We conclude that Water's Edge's proofs demonstrate an absence of a genuine issue of material fact on the allegations of generalized abuse. The record demonstrates that there are no eyewitnesses to any alleged abuse or neglect. There was no other evidence to support the claim that Water's Edge, and not some externality, deviated from the requisite standard of care to cause decedent's ecchymosis, hematomas, or dislocated shoulder. Dr. Cogen's expert report relied on the prior diagnosis of senile purpura and the prescription of an anticoagulant to conclude within a reasonable degree of medical certainty that the skin tears and bruising did not result from any misconduct by Water's Edge employees. Water's Edge relies as well on the absence of any official finding of abuse. This presentation demonstrates that the estate's abuse claim suffers from two fatal deficiencies. There is no evidence to conclude that Water's Edge breached its overall duty, and there is no evidence that a breach caused decedent's specific injuries.

To overcome this showing, the estate relies on the interpretation of the medical history by Nurse Tadrick and Dr. Kirby. Tadrick conceded that there were no medical records available to determine the cause of decedent's bruising and hematomas. She concluded nonetheless that the appearance of unexplained bruising, swelling, and edema on her right upper thorax and shoulder was "a matter of great concern" and that the evidence raised "a high index of suspicion of ill treatment by commission." The report did not express this finding within a reasonable degree of medical certainty.

Dr. Kirby catalogued the history of skin tears and bruising. He noted that the number of these incidents seemed "inordinately high." Despite the "paucity of information especially surrounding the extensive bruising," Dr. Kirby converted his suspicions of abuse into the conclusion that Water's Edge caused the injuries within a reasonable degree of medical certainty.

We agree with Water's Edge and the trial judge that this expert testimony does not satisfy the estate's burden to demonstrate a genuine issue of material fact for trial. It is clear that experts must explain the facts and assumptions upon which they base their ultimate medical conclusions. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). The Buckelew Court continued its explanation of an inadequate "net opinion":

The "net opinion" rule appears to be a mere restatement of the established rule that an expert's bare conclusions, unsupported by factual evidence, is inadmissible. It frequently focuses . . . on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom.

[Ibid.]

We will not permit expert opinion testimony to introduce speculation into the province of the fact finder "'if it appears the witness is not in possession of such facts as will enable him [or her] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture.'" Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 323 (App. Div.) (quoting Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 299 (App. Div.), certif. denied, 122 N.J. 333 (1990)), certif. denied, 146 N.J. 569 (1996).

Here, the experts agreed that there was no concrete medical evidence concerning the cause of decedent's injuries. To the best of their abilities, they could conclude only that they harbored suspicions of abuse or neglect. We agree with Water's Edge that there is no basis to rely, as Dr. Kirby did, on this bare "suspicion" to conclude "within a reasonable degree of medical certainty" that Water's Edge caused decedent's injuries. Even though Dr. Kirby noted that decedent's platelet levels were within the normal range, his medical conclusion failed to account for the diagnosis of senile purpura, and the combined effect of this diagnosis with the use of Plavix. It appears that his conclusion was pure conjecture. And, while it is true that the facts upon which the expert bases his or her opinion need not be admissible, the evidence must be "of a type reasonably relied upon by experts in the particular field." N.J.R.E. 703. The two experts cited Kelly's statements to the hospital about the suspected abuse of decedent by a certified nursing assistant. There is no extrinsic evidence in the record to support these hearsay assertions. We conclude that the expert's reliance on these statements provides an improper conduit for the introduction to the jury of otherwise inadmissible evidence. State v. Farthing, 331 N.J. Super. 58, 79 (App. Div.), certif. denied, 165 N.J. 530 (2000).

We also find the estate's reliance on Yapp's deposition testimony equally unavailing. There is no indication in the record that Yapp was qualified as an expert in the field of geriatric abuse. Yapp did not provide her opinion within a reasonable degree of medical certainty. There was no credence given to the absence of a finding of abuse or neglect by the state agencies charged with the investigation of Water's Edge. Yapp relied on the fact that decedent avoided the physical assistance overtures of hospital personnel, but there is no evidence that this avoidance resulted from the abuse by Water's Edge. It is clear from the record that decedent did not interact verbally with regularity after she suffered a stroke, and that there was a continued aversion to contact more than six weeks after decedent's discharge from Water's Edge. These facts do not render the observations irrelevant, but we do not find them sufficient to create a genuine issue of material fact.

The estate hopes to overcome the lack of credible expert opinion by likening this case to a "simple assault." It argues that there is no need to produce expert testimony to the effect that Water's Edge's failure to prevent the alleged abuse of decedent constituted a breach of its legal duty. We agree that the jury does not necessarily require expert testimony to assess the applicable standard of care in an abuse case. However, the estate must present evidence of some evidentiary link between the alleged injuries and a breach by Water's Edge. It must overcome the showing by Water's Edge that there was a medical reason for the bruising over large sections of decedent's body. We conclude that the cause of the extensive bruising and the skin tears does not fall within the common knowledge of the reasonable juror. It was necessary to present expert testimony on causation, and the absence of such evidence requires the grant of summary judgment to Water's Edge.

We add this comment. The estate does not argue for the application of res ipsa loquitur on the abuse allegations. The appearance of the marks on decedent's body do not "ordinarily bespeak negligence," for the medical reasons explained in Dr. Cogen's expert report. Without this assumption, there is no need to require Water's Edge to disprove its involvement in the injuries.

III

The final inquiry is whether the judge properly dismissed the estate's claim relating to the decedent's right lower leg area: the fractured heel (calcaneus) and the injury in the Achilles tendon area.

The estate devotes the bulk of its argument to decedent's right heel fracture, and the allegation that the injury was caused by the negligent use of a wheelchair during restorative therapy on January 12. The estate argues that the motion judge should have invoked the doctrine of res ipsa loquitur to shift the burden to Water's Edge to disprove an inference of negligence. The basis for the estate's opposition to the grant of summary judgment to Water's Edge on the right heel fracture is that Water's Edge was "solely responsible for the nursing and medical care/treatment" of decedent. The estate notes in a number of places that decedent could ambulate only with the assistance of one worker on each side and one worker behind her with the wheelchair in place. The estate argued to the judge that Water's Edge employees must have witnessed the accident during its care of decedent. The plaintiff urges that "[t]he only reason [it] cannot prove exactly what happened is, because the defendant failed to properly record the incident."

We conclude at the outset that Water's Edge probably satisfies its initial burden to prove there may be no genuine issue of material fact on the right heel fracture. It relies on the flow sheets to dispute any indication that decedent received restorative therapy on January 12, the alleged date of the accident. It argues that there is no direct evidence of an alleged negligent act by any one of its employees. The facility downplays the estate's claim that the system of inadequate reporting was used to cover up the negligence. It points to the other entries in the record to demonstrate its compliance with the statutory and regulatory mandates. However, the credibility of the records and accurate reporting still remains an issue.

Assuming Water's Edge satisfies its initial burden, we must assess whether plaintiff's rebuttal proofs create a "genuine" issue of material fact. The survival of the estate's claim, and the propriety of summary judgment, depends in large part on the admissibility of three items of hearsay evidence: (1) the entry of decedent's complaint about the wheelchair episode in the hospital chart; (2) Kelly's repetition of decedent's complaint to her; and (3) Kelly's repetition of a statement made to her by a hospital employee, to the effect that an aide hit decedent by accident. See El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 164 (App. Div. 2005) ("[S]ummary judgment motions must be supported by relevant and admissible evidence.").

The estate argues that these three statements are relevant to create an inference, in the absence of other evidence, that an employee of Water's Edge negligently caused decedent's right heel injury.

a. The first two statements

The estate argues that the judge should have considered decedent's initial complaint because it appears in an otherwise trustworthy hospital chart. It argues that the statement satisfies the exception for "a writing or other record . . . made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it." N.J.R.E. 803(c)(6).

As Water's Edge notes, however, the inclusion of decedent's hearsay statement into a business record does not necessarily validate the statement. The business record exception permits this court to consider, without the production of the hospital's keeper of records, the nonhearsay evidence within decedent's chart. It does not permit this court to consider the hearsay evidence imbedded in its four corners. See N.J.R.E. 805 ("A statement within the scope of an exception to Rule 802 shall not be inadmissible on the ground that it includes a statement made by another declarant which is offered to prove the truth of its contents if the included statement itself meets the requirements of an exception to Rule 802."). As such, it is necessary to consider whether decedent's statement (either to her daughter or the hospital) satisfies any hearsay exception on its own.

The estate argues that decedent's statement qualifies as a "present sense impression," admissible under N.J.R.E. 803(c)(1). The rule permits the admission of "[a] statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate." The estate, citing State v. D.R., 214 N.J. Super. 278 (App. Div. 1986), rev'd, 109 N.J. 348 (1988), argues that decedent's statement "is, by virtue of the fact that decedent still felt pain, temporarily and causally linked to the events itself and not simply a recounting of the event." We reject the argument. This court, in D.R., affirmed the introduction of a three-year-old sexual assault victim's statements to a psychologist, even though we concluded that "[i]t would strain the fabric of the hearsay rule" to admit the statements under the predecessor to N.J.R.E. 803(c)(1). Id. at 287-88. The Supreme Court refused to countenance this expansive treatment of the hearsay rule. For the same reasons, there is no basis to admit decedent's statement, given at least one day after the incident (not "immediately after"), to the hospital employees or to her daughter on this basis. The statement lacks the intrinsic reliability of a conventional present sense impression.

The estate argued, as part of the reconsideration motion, that it could admit decedent's statements under the hearsay exception for "[s]tatements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment." N.J.R.E. 803(c)(4). The estate does not press this claim on appeal, but we address it briefly.

The reliability of this type of statement derives from the assumption that the patient's "desire for relief furnishes an impelling incentive to truth telling." Bober v. Indep. Plating Corp., 28 N.J. 160, 170 (1958). It is likely that the patient will tell the truth when she is "more interested in obtaining a diagnosis and treatment culminating in a medical recovery than . . . in obtaining a favorable medical opinion culminating in a legal recovery." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 803(c)(4) (2008). As the language of the rule recognizes, however, the presumption of reliability fades when the patient begins to discuss the source of the complaint. "[T]he general New Jersey rule has been that statements as to the cause of physical symptoms are inadmissible hearsay." Ibid. Under this general approach, it would be permissible in this case to apprise the factfinder of decedent's complaint of right heel pain, but there would be no basis to permit the factfinder to consider decedent's claim that the source of the pain was the aide's negligent operation of a wheelchair. See Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991) (precluding plaintiff's statement to physician that she slipped on ice).

The application of the final hearsay exception requires careful scrutiny. The estate argues that decedent's complaint falls under the hearsay exception for "[t]rustworthy statements by deceased declarants." This type of testimony is admissible "if the statement was made in good faith upon declarant's personal knowledge in circumstances indicating that it is trustworthy." N.J.R.E. 804(b)(6). To be admissible under the rule, the statement must satisfy four conditions: "(1) the declarant must be dead; (2) the statement must have been made in good faith; (3) the statement must have been made upon the declarant's own personal knowledge; and (4) there must be a probability from the circumstances that the statement is trustworthy." DeVito v. Sheeran, 165 N.J. 167, 194 (2000) (citing Ayala v. Lincoln, 147 N.J. Super. 304, 307 (App. Div. 1977)).

It is clear that the trial court "must make particularized findings of good faith, personal knowledge and trustworthiness prior to the admission of evidence of this nature under this hearsay exception." Ibid. (citing Jeter v. Stevenson, 284 N.J. Super. 229, 233-34 (App. Div. 1995)). The motion judge here concluded that there was no "fundamental reliability" in decedent's complaint. We doubt the judge's evaluation of these particularized criteria, but given our resolution of the admissibility of the nursing home employee's alleged statement to Kelly, we find it unnecessary to scrutinize this issue on the cold motion papers alone. The trial judge may revisit this issue if plaintiff makes a proper offer of proof at trial, R. 1:7-3, about the decedent's statement to her.

We observe, however, that "'[t]he court need find only a probability that the statement is trustworthy from the flavor of the surrounding circumstances. The determination is a subjective one." DeVito, supra, 165 N.J. at 195 (quoting Beckwith v. Bethlehem Steel Corp., 185 N.J. Super. 50, 63 (Law Div. 1982)). Decedent made the alleged statements to her daughter and to one of Water's Edge's employees one day after the alleged incident. See Jastremski v. Gen. Motors Corp., 109 N.J. Super. 31, 36-38 (App. Div. 1970) (admitting as trustworthy the decedent's statement to his brother twenty-two hours after an automobile accident, noting the absence of an oath or cross-examination requirement). The statement in the case before us was entered into the nursing home's business records in the normal course of business. Cf. Jeter, supra, 284 N.J. Super. at 231-32 (noting the untrustworthiness of a letter containing decedent's uncorroborated, unsworn, unauthenticated declaration, when there was no evidence of the circumstances under which the statement was taken). A jury, and a judge for threshold admissibility purposes, could fairly conclude that the statement was not made for the purpose of litigation, but rather to convey sincerely decedent's complaint to the nursing staff. See DeVito, supra, 165 N.J. at 197 (noting that the self-serving nature of the decedent's declaration "is not dispositive of its admissibility, but rather goes to the weight to be given to the evidence"). But see Ramos v. Cmty. Coach, 229 N.J. Super. 452, 455, 458 (App. Div. 1989) (finding that the decedent's declaration that he hurt his wrist "getting off a bus about 1/2 hour ago" was insufficient to withstand summary judgment).

b. The third statement

The estate argues that the unknown hospital employee's statement to Kelly about the wheelchair accident constitutes a "statement against interest." Under N.J.R.E. 803(c)(25), the estate can introduce:

A statement which was at the time of its making so far contrary to the declarant's pecuniary, proprietary, or social interest, or so far tended to subject declarant to civil or criminal liability, or to render invalid declarant's claim against another, that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true.

The reliability of a statement against interest derives from the fact that "'by human nature, individuals will neither assert, concede, nor admit to facts that would affect them unfavorably.'" State v. Brown, 170 N.J. 138, 148-49 (2001) (quoting State v. White, 158 N.J. 230, 238 (1999)). To apply the exception, the statement must have been against the declarant's interest at the time of its utterance. State v. Norman, 151 N.J. 5, 31 (1997). There is no requirement, however, that the declarant be a party to the litigation. Speaks v. Jersey City Hous. Auth., 193 N.J. Super. 405, 412-13 (App. Div.), certif. denied, 97 N.J. 655 (1984).

Here, the judge erred in the failure to understand there were two ways to interpret Kelly's deposition testimony. The testimony repeated the nursing home employee's statement that "it was an accident and somebody had run into [decedent] with a wheelchair." Because the estate conceded that the nurse's entry of decedent's complaint preceded the phone call to Kelly, the court agreed with Water's Edge's argument that the phone call did not relay any statement against interest, only that the employee wished to share decedent's complaint with Kelly.

The estate argued that the employee's statement admitted the employee's negligence and did not simply share decedent's complaint. The judge recognized that "[w]e don't know that" and "we only can infer that" the statement was an admission rather than the repetition of decedent's complaint. The judge concluded nonetheless that the employee's statement "was generated by the complainant." The judge's approach failed to interpret the facts, and the reasonable inferences from those facts, in the light most favorable to plaintiff. Had the judge followed the conventional summary judgment standard, the judge would have realized that the hospital employee's statement qualified as a "statement against interest." There is no requirement that the declarant be a party in the litigation. The statement exposed Water's Edge to either civil liability or government investigation. We conclude a reasonable employee would not apologize to the family of the decedent or admit the negligent accident in this case without some basis in fact, an assurance of trustworthiness. On the present record, the statement against interest was admissible.

We reject two additional arguments against the testimony's admission. The judge refused to consider this statement because Kelly could not identify the hospital employee with whom she spoke. Clearly, from our case law, "employees or agents of a defendant need not be specifically identified in order for their statements to be binding upon their employer. All that is required is that it be established that an agency, employment or representative relationship was ongoing at the time the statements were made." Reisman v. Great Am. Recreation, Inc., 266 N.J. Super. 87, 100 (App. Div.), certif. denied, 134 N.J. 560 (1993). The recording of this official phone call into the facility's nursing notes recognizes that the call was made within the scope of the declarant's employment, about three hours after decedent's complaint.

Water's Edge argues in the alternative that this evidence is inadmissible because of its inherent unreliability. This court recognized the opportunity for a plaintiff to falsify an unknown out-of-court declarant's statement against interest in Reisman. This court concluded nonetheless that "this question focuses upon the credibility of the particular witness, and that, undoubtedly, is an issue which is best left to be resolved by the trier of fact." Id. at 101.

IV

Assuming that the judge misinterpreted the substance of Kelly's deposition testimony, and that the statement against interest should have been considered on the motion for summary judgment, it is necessary to consider that evidence's ability to create a genuine issue of material fact.

The estate also asks this court to apply the doctrine of res ipsa loquitur to find a genuine issue on the question of Water's Edge's negligence. This evidentiary principle

creates "an allowable inference of the defendant's want of due care" when the following conditions have been shown: "(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality [causing the injury] 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."

[Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984) (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)).]

"Whether an occurrence ordinarily bespeaks negligence is based on the probabilities in favor of negligence. Hence, res ipsa is available if it is more probable than not that the defendant has been negligent." Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 95 (1999). "In the absence of direct evidence, it is incumbent upon the plaintiff to prove not only the existence of such possible responsibility, but the existence of such circumstances as would justify the inference that the injury was caused by the wrongful act of the defendant and would exclude the idea that it was due to a cause with which the defendant was unconnected." Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 141 (1951) (citations and internal quotation marks omitted).

As noted above, it may be necessary, within the context of a res ipsa loquitur case, for the plaintiff to present expert testimony if the jury cannot determine, based on its common knowledge, that the occurrence of a particular event ordinarily bespeaks negligence. Jerista v. Murray, 185 N.J. 175, 200 (2005) (discussing Buckelew, supra, 87 N.J. at 525-28). Upon the introduction in such a case of the appropriate expert testimony, the testimony equips the jury with the tools to consider whether the happening of an occurrence creates a presumption of negligence within the particular profession. Ibid. "The doctrine of common knowledge permits exception to the general rule; when it is applied, expert testimony is not needed to establish the applicable standard of care. The trial of such a case is essentially no different from an ordinary negligence case." Chin, supra, 160 N.J. at 469 (citations and internal quotation marks omitted).

Water's Edge argues that this "medical malpractice" claim requires the introduction of expert testimony to demonstrate that a deviation from the medical field's standard of care caused decedent's right heel fracture. We disagree with Water's Edge's conceptualization of the issue.

We would agree with the facility's framing of the issue if the estate argued that the failure to perform a technical procedure in a particular manner constituted a breach of the requisite standard of care, and the jury lacked particularized knowledge of the procedure. See, e.g., Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 327 (1985) (requiring expert opinion because the jury could not infer chiropractic negligence from its reading of an x-ray); Schueler v. Strelinger, 43 N.J. 330, 345 (1964) (requiring expert testimony to the effect that the exercise of reasonable medical care called for an additional test). We do not believe, however, that the factfinder here would benefit from expert testimony about the professional standard required to aid the ambulation of an elderly patient. Pertinent is Lauder v. Teaneck Volunteer Ambulance Corps, 368 N.J. Super. 320, 325 (App. Div. 2004), in which an ambulance squad loosened the chest strap of an elderly man in route to the hospital. When the squad removed the patient from the ambulance, it failed to refasten the strap. Ibid. When the undercarriage of the gurney collapsed, the patient fell to the ground, hit his head on the pavement and died several days later from the fall.

The defendant in that case argued that the decedent's estate was required to present expert testimony to the effect that the failure to refasten the chest strap constituted a breach. Id. at 329. We rejected the argument, concluding that the jury could infer without expert testimony that the ambulance worker "could have and should have refastened the chest strap to prevent [the decedent] from falling sideways off the gurney when it collapsed." Ibid. Giving all favorable inferences to the estate, this court concluded that "[a] jury could likewise determine, without expert testimony, that [the decedent] would not have hit his head on the pavement if the chest strap had been fastened when the gurney collapsed." Id. at 329-30.

Assuming there is evidence, through the admissible hearsay of the Water's Edge employee or the decedent's declaration, of contact between decedent's heel and the wheelchair, we apply the same logic as Lauder to conclude that a reasonable jury could find under plaintiff's factual version that Water's Edge exercised control over the instrumentality at the time of the accident, that there was no fault on the part of decedent, and that the contact between the largely immobile decedent and the wheelchair represented a deviation from the standard of care.

The jury must sort out the credibility of the estate's claim, and the defense arguments, on the cause of the right heel injury. See Szalontai v. Yazbo's Sports Caf , 183 N.J. 386, 398 (2005). The judge must still decide when the proofs are concluded whether there is enough for submission to the jury in the face of motions to dismiss under Rule 4:37-2 and Rule 4:40-2. We cannot predict on this summary judgment appeal if the final proofs which emerge will be sufficient to present the case to the jury. See McGowan v. Borough of Eatontown, 151 N.J. Super. 440, 446 (App. Div. 1977).

We affirm the grant of summary judgment on the claim of generalized abusive and neglectful treatment. We reverse the grant of summary judgment on the claim of injury to the right lower extremity and the sequela of this injury.

Affirmed in part; reversed in part; remanded for trial.

 

We use "plaintiff" and "the Estate" interchangeably throughout this opinion.

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A-4970-06T2

July 25, 2008