ESTATE OF FRANKIE L GARNER v. SENIOR CARE CENTERS OF AMERICA INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ESTATE OF FRANKIE L. GARNER,

Plaintiff-Appellant,

v.

SENIOR CARE CENTERS OF AMERICA,

INC., d/b/a SENIOR CARE OF VINELAND,

Defendant-Respondent.

____________________________________________________________

January 15, 2014

Submitted January 7, 2014 Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-833-10.

Lipman, Antonelli, Batt, Gilson, Rothman & Capasso, attorneys for appellant (Gerald J. Batt, of counsel and on the brief).

Sweeney & Sheehan, attorneys for respondent (Neal A. Thakkar, on the brief).

PER CURIAM

Defendant Senior Care Centers of America, Inc. operates an adult care facility in Vineland. Frankie Garner, who was then eighty-four years old, was being cared for in the facility on August 18 or 19, 2008,1 when she stood up and then abruptly sat back down, either missing the chair or coming only in contact with the edge of the seat, causing her to fall to the floor. Her estate's action for damages was dismissed by way of summary judgment because the estate did not provide an expert report regarding the applicable standard of care or its breach, or an expert report connecting the injuries in question with the fall.

In four points, the estate argues: expert testimony was not required because the jury could base a verdict in the estate's favor on their common knowledge; expert testimony was not required because the doctrine of res ipsa loquitur is applicable in this case; medical records established that Ms. Garner's injuries were causally related to the fall; and an examination of the facts in the light most favorable to the estate required a denial of summary judgment. We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

Defendant operates an "adult day health services facility," as defined by N.J.A.C. 8:43F-1.2, and, as such, was subject to staffing regulations, including N.J.A.C. 8:43F-6.2, which mandated at least one full time staff member for every nine participants. The record here reveals that, at the time in question, the staff member supervising Ms. Garner was watching only three other participants. Notwithstanding defendant's compliance with the applicable regulation, the estate argues a jury could use its "common knowledge" in finding a deviation of the applicable standard of care. We disagree. Indeed, the estate alludes to nothing but a statement in defendant's advertisement that "family members experience peace of mind knowing their loved one is safe and well cared for during the day" to suggest defendant was negligent. The record, however, reveals defendant more than amply complied with the applicable state regulations and no expert has been identified by the estate to suggest defendant violated the applicable standard of care or that the staff member watching Ms. Garner at the time did not act appropriately.

In addition, the trial judge correctly found the doctrine of res ipsa loquitur inapplicable. To allow the jury to impose liability here, in the absence of expert testimony or facts suggesting negligence on defendant's part would, in essence, impose absolute liability for any mishap that might befall a participant. The application of res ipsa principles requires facts that suggest "it is more probable than not that the defendant has been negligent." Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 95-96 (1999). There is nothing about the circumstances regarding Ms. Garner's fall, when viewed in the light most favorable to the estate, that would suggest it is more probable than not that defendant had been negligent. Although defendant operates a facility that cares for the aged and infirmed, such facilities are not absolutely liable for all falls or injuries that occur on their premises. Davis v. Devereux Foundation, 209 N.J. 269, 291-92 (2012); see also Simpson v. Duffy, 19 N.J. Super. 339, 343 (App. Div. 1952) (holding that "[p]roof of a fall alone would not be adequate to create an inference of negligence or give rise to the application of the doctrine of res ipsa loquitur").

1The parties disagree on the date of the occurrence. That dispute, however, has no impact on the disposition of the appeal.