EDWARD J. GRIFFIN v. BAYSHORE MEDICAL CENTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5032-09T2

EDWARD J. GRIFFIN, individually,

and as Administrator Ad

Prosequendum for the Estate of

EDWARD L. GRIFFIN, and PHILOMENA

PAPA and RALPH PAPA, Husband

and Wife,

Plaintiffs-Appellants,

v.

BAYSHORE MEDICAL CENTER, BAYSHORE

COMMUNITY HOSPITAL, and BAYSHORE

HEALTH CARE AND REHABILITATION

CENTER,

Defendants-Respondents.

May 6, 2011

Argued January 18, 2011 - Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1668-09.

Rita M. Gribko argued the cause for appellants (Miller & Gaudio, P.C., attorneys; Frank S. Gaudio, on the briefs).

Michael E. McGann argued the cause for respondents (Ronan, Tuzzio & Giannone, attorneys; Mr. McGann, of counsel and on the brief; John M. Hockin, Jr., on the brief).

PER CURIAM

Plaintiffs Edward J. Griffin, individually and as Administrator Ad Prosequendum for the Estate of Edward L. Griffin, and Philomena and Ralph Papa, husband and wife, appeal from the May 28, 2010 grant of summary judgment dismissing their complaint against defendants Bayshore Medical Center, Bayshore Community Hospital, and Bayshore Health Care and Rehabilitation Center, based on the Charitable Immunities Act, N.J.S.A. 2A:53A-7 to -13.1. The trial court also denied plaintiffs' request for leave to amend the complaint to include allegations of gross negligence, carelessness, and/or recklessness. For the reasons that follow, we affirm.

Plaintiffs filed their separate personal injury claims in one complaint. We were not supplied with a copy of the original complaint; however, an amended complaint dated April 30, 2009, was provided in plaintiffs' appendix. On April 26, 2010, when defendants filed their motion for summary judgment, plaintiffs filed a cross-motion for leave to file a second amended complaint.

In granting defendants' application and denying that of plaintiffs, Judge Cleary relied on the fact that defendant Bayshore Health Care Center, a nursing home or long-term care facility, "supplied a certificat[e] of incorporation and has certified that it is in good standing as a non-profit corporation." Judge Cleary thus concluded defendants had satisfied the charitable immunity test found in Hamel v. State, 321 N.J. Super. 67, 72 (App. Div. 1999). She also held that despite plaintiffs' request, gross negligence could not be established even if the time for discovery were extended. She further determined plaintiffs' motion to amend their complaint a second time should be denied because it was not filed within the relevant statute of limitations and that, in any event, charitable immunity principles barred these claims as well. As a result, she dismissed the complaint with prejudice.

Plaintiff Edward J. Griffin, as administrator ad prosequendum for the Estate of Edward L. Griffin, sought compensation for personal injuries suffered by decedent on October 16, 2007, when he tripped and fell on a one and one-half-inch protrusion on the sidewalk in front of Bayshore Nursing Home. Decedent, then ninety-one years old, was on his way in to the facility to visit his wife, who was convalescing in the home. He was accompanied by his son, now the administrator of his estate. Decedent appeared initially to be only minimally injured, but in fact fractured a bone, the "C2 vertebral body with fracture of the odontoid process." Later that day, decedent was admitted to the intensive care unit at Bayshore Hospital, where he remained until his death on November 6, 2007.

The second plaintiff in the complaint is Philomena Papa, who, on March 3, 2008, was visiting her husband in the same nursing home when she also tripped and fell over the same protrusion in the sidewalk. She sustained serious injuries, including a broken left kneecap and the fracture of the orbit of her eye. Papa was admitted to Bayshore Hospital and was discharged on March 14, 2008. She was eighty-six when she fell, and has relied upon a cane since the accident because of pain to her knee. Both decedent and Papa had visited the facility on prior occasions.

The nursing home, known as Bayshore Health Care Center, is a non-profit corporation. Plaintiffs claim that the for-profit Bayshore Rehabilitation Systems, Inc., may be a subsidiary of, or connected in some other fashion to, Bayshore Health Care Center. They assert that the for-profit status of Bayshore Rehabilitation Systems, Inc., casts doubt on the non-profit status of Bayshore Health Care Center.

This despite the fact that Karl H. Meinert, Senior Vice President of Corporate Services for Bayshore Community Healthcare Services, certified that Bayshore Rehabilitation Systems, Inc., is not affiliated with any of the entities comprising Bayshore Community Health Services. Bayshore Health Care Center is one of several providers known as Bayshore Community Health Services. In addition to not being affiliated with the nursing home, Bayshore Rehabilitation Systems, Inc. is located in a non-Bayshore Community Health Services-owned medical professional building, albeit on the same road as Bayshore Community Hospital. Although the certification does not explain the similarity in name, plaintiffs were unable to connect Bayshore Rehabilitation Systems, Inc., to the nursing home or its related corporate entities after extensive interrogatories and depositions.

Janos M. Angeli, Corporate Director of Facility Management and Planning at the nursing home, is responsible for maintenance of both buildings and grounds. He testified that he was never informed about any protrusion in the sidewalk. He learned about decedent's injuries in the fall of 2007, but asserted his subsequent visual inspection of the sidewalk revealed nothing that would "raise a major concern." He defined a "major concern" as major cracks or crumbling. When shown a photograph of the relevant sidewalk's condition, however, he admitted it would be a major concern. He also testified it was only after Papa tripped that the area was marked with caution tape. The sidewalk was not replaced until May 2, 2008, when he noticed it "heaved from the previous winter."

Michael J. Panzino, who had previously worked as a maintenance mechanic for the nursing home, certified reporting the protrusion in the sidewalk to Joe Altivala, the Director of Plant Operations, after decedent's fall, but before the incident with Papa, in December 2007. He never saw Altivala inspect the sidewalk.

Plaintiffs' engineer, William Poznak, P.E. & L.S., prepared a report stating the sidewalk was in an "unsafe condition" which "could [] easily cause [persons] to trip and fall." He also opined the "condition had existed for quite some time . . . [as] evidenced by the excessively worn raised edge."

On May 15, 2010, some thirteen days before summary judgment was granted, plaintiffs obtained a court order compelling the production of defendant's risk manager, Carolina Nowaczyk, for deposition. Like Meinert, Nowaczyk certified Bayshore Health Care Center is a non-profit, tax-exempt organization created for the charitable purpose of serving as a long-term care facility, or nursing home. Her certification does not relate to her responsibilities as risk manager; she signed interrogatories as defendant's corporate representative.

We review the grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We ask "whether the competent evidential materials presented, when viewed in a light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged dispute issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), see also R. 4:46-2(c).

a.

Plaintiffs first contend the trial court erred in granting summary judgment because there was a genuine issue as to whether Bayshore Health Care Center was a charitable organization entitled to the protection conferred by N.J.S.A. 2A:53A-7(a), which reads:

[n]o nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes or its trustees, directors, officers, employees, agents, servants or volunteers shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation . . . .

[N.J.S.A. 2A:53A-7(a).]

In applying this Act, courts generally examine "whether the entity: (1) was formed for nonprofit purposes; (2) is organized exclusively for religious, charitable, or educational purposes; and (3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works." Hamel, supra, 321 N.J. Super. at 72.

In this case, plaintiffs assert that summary judgment should have been denied because additional discovery would have enabled them to prove that Bayshore Health Care Center was indeed a for-profit organization not shielded from liability pursuant to the Charitable Immunities Act. Although it is true there is a for-profit entity with a similar name located on the same street, at the point when summary judgment was granted, some thirteen months after the filing of the first amended complaint, after a no doubt diligent search, plaintiffs were unable to establish any connection between Bayshore Health Care Center and the for-profit Bayshore Rehabilitation Services. There was no reason to believe additional time would have enabled them to produce proofs they have been unable to obtain to date.

It is true the trial judge issued an order approximately two weeks prior to the summary judgment hearing allowing for Nowaczyk's deposition; however, plaintiffs do not suggest, much less detail, the information the risk manager would provide in support of any of their claims. A general assertion that a party needs more discovery will not defeat an otherwise meritorious summary judgment motion. See Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977).

Moreover, all the documents they obtained, and which defendant produced, confirm the nursing home's not-for-profit charitable purposes. There was no genuine issue of material fact on the question of the nursing home's status. Given that plaintiff was unable to challenge the nursing home's status as a not-for-profit entity operating for charitable purposes, the trial court properly decided the charitable immunity issue as a question of law. See Roberts v. Timber Birch-Broadmoore Athletic Ass'n, 371 N.J. Super. 189, 197 (App. Div. 2004).

b.

Plaintiffs' second contention is that the existence of the for-profit facility on the same street as Bayshore Community Hospital, bearing a similar name, raises doubts about the charitable non-profit purposes of Bayshore Health Care Center. We do not agree. The existence of a separate for-profit corporation in and of itself does not make Bayshore Health Care Center other than a charitable entity. The nursing home's certificate of incorporation provides that it is indeed a non-profit corporation offering medical care to the public within the meaning of I.R.C. 501(c)(3). The mere existence of a similarly named for-profit corporation is simply not sufficient proof to create a genuine issue of material fact. To conclude otherwise would be to engage in impermissible speculation.

c.

Plaintiffs also contend they were not "beneficiaries" under the Charitable Immunities Act. We agree with the trial court that they were clearly beneficiaries within the statute's purview. The purpose of the facility was to provide nursing home care, and plaintiffs' sole reason for being there was to visit family members who were residents. Visitors to hospitals and nursing homes are in fact considered beneficiaries of charitable works. See Gray v. St. Cecilia's School, 217 N.J. Super. 492, 494-95 (App. Div. 1987). This is not a situation in which the injured victim's presence was unrelated to the provision of services. See Harrington v. Clara Maass Hosp., 208 N.J. Super. 365, 368 (App. Div. 1996) (remanding for further proceedings where victim only shown to have been present when ex-boyfriend dropped off disabled patient for scheduled treatment). Factually and legally, these plaintiffs were beneficiaries within the meaning of the Charitable Immunity Act. Gray, supra, 217 N.J. Super. at 494-95 (observing question is whether the injured person was, "at the time of the accident, to some degree within the benefaction of the charity," construed "broadly" to effectuate legislative intent).

Plaintiffs attempt to distinguish Edward J. Griffin by characterizing his claim as one for wrongful death and extrapolating from that characterization that the Charitable Immunity Act does not apply. In actuality, both Edward L. and Edward J. Griffin were beneficiaries of charitable work as they were visiting a patient, their wife and mother respectively. Furthermore, there is no exemption for wrongful death actions. Orzech v. Fairleigh Dickinson Univ., 411 N.J. Super. 198, 210-11 (App. Div. 2009), certif. denied, 201 N.J. 443 (2010). Statutory immunity protects Bayshore Health Care Center from this precise sort of liability.

d.

Plaintiffs next urge that, even if the Charitable Immunity Act applies, the court should extend Bayshore's liability to a $250,000 cap pursuant to N.J.S.A. 2A:53-8. That statute provides that "any non-profit corporation . . . organized exclusively for hospital purposes shall be liable . . . to an amount not exceeding $250,000 . . . ." Ibid. Plaintiffs' rationale is that, if they were beneficiaries of the charitable purposes because their loved ones were receiving care at the nursing home, this somehow triggers the statutory language referencing hospitals. The argument does not bear extensive discussion. R. 2:11-3(e)(1)(E). It is clear from the certificate of incorporation and the name of the facility that it is not a hospital but a nursing home. Plaintiffs do not proffer any legal justification for extending this statutory provision to a nursing home.

e.

Plaintiffs further argue that they should have been permitted to amend their complaint to allege gross negligence, thereby avoiding the protection afforded to Bayshore Health Care Center by virtue of the Charitable Immunity Act. We agree with the general principle that charitable immunity will not be granted where there is proof that the charitable organization or agent thereof was acting willfully, wantonly, or was grossly negligent at the time of the commission or omission of the act that led to the plaintiffs' alleged injury. Hardwicke v. Am. Boychoir Sch., 368 N.J. Super. 71, 98 (App. Div. 2004), aff d as modified, 188 N.J. 69 (2006).

This distinction is, obviously, very important. Gross negligence refers to behavior which constitutes "indifference to consequences." Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987) (internal quotation omitted). Plaintiffs contend the failure to fix the sidewalk after being noticed of the first accident constitutes gross negligence on the part of defendant. We do not agree.

Even plaintiffs' expert does not opine that defendant committed an act or acts of gross negligence. This is not surprising because gross negligence requires substantial proof beyond simple negligence. It requires "wanton or reckless disregard for the safety of others." In re Kerlin, 151 N.J. Super. 179, 185 (App. Div. 1977) (internal quotation omitted). Plaintiffs' assertion that, after notice, defendants had an absolute duty to correct the condition that caused Griffin's fall does not establish gross negligence. The sidewalk protrusion in question was approximately an inch and one-half.

In a similar fashion, plaintiffs argue that the status of the sidewalk and the failure to repair the condition constitutes an act of recklessness. Although certainly the Charitable Immunity Act would no more protect defendant from acts of recklessness than it would gross negligence, the failure to repair the sidewalk simply does not constitute an act of recklessness. "Recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others." Schick v. Ferolito, 167 N.J. 7, 20 (2001). The decision not to repair the sidewalk after notification of the first fall does not raise the specter that defendants' choice was made with the knowledge that it would create a serious hazard to others. Ibid. The condition in question simply is not one which creates so serious a hazard as to establish either gross negligence or recklessness on the part of defendants.