On appeal from the Superior Court, Law Division, Monmouth County.
R. S. Cohen and Landau. The opinion of the court was delivered by R. S. Cohen, J.A.D.
Plaintiff Josephine Marsella fell on a walkway at defendant Monmouth Medical Center (MMC) after visiting her husband, a patient there. She sued for her damages; her husband also sued per quod. MMC's answer pleaded the statutory hospital immunity to a beneficiary's judgment over $10,000. N.J.S.A. 2A:53A-8. Plaintiffs then filed an amended complaint, naming formerly John Doe defendants. The amended answer omitted to plead the statutory immunity.
The case was tried to a jury. The court dismissed the claims against the individual defendants. The jury apportioned causative negligence 70% to MMC and 30% to Mrs. Marsella. It returned damage verdicts of $2,000 for medical expenses, $40,000 for plaintiff's injury, and $1,000 for plaintiff husband's per quod claim. Plaintiffs submitted a form of order for judgment against MMC for those amounts, reduced by the percentage of plaintiff's negligence, plus prejudgment interest. MMC objected
on the grounds of statutory immunity. The court agreed with MMC and entered judgment for both plaintiffs for $10,000 plus prejudgment interest. Plaintiffs then appealed. We modify the judgment and affirm it as modified.
Plaintiffs makes three arguments before us:
POINT I: CHARITABLE IMMUNITY AS [sic] AN AFFIRMATIVE DEFENSE WHICH MUST BE PLEADED AND PROVEN.
POINT II: PLAINTIFFS ARE ENTITLED TO THE INTEREST AND COSTS OF SUIT WITHOUT REGARD TO THE SO CALLED $10,000.00 LIMITATION ENUMERATED IN N.J.S.A. 2A:53A-8.
POINT III: THE COURT ERRED IN DISMISSING THE COMPLAINTS AGAINST PHIL FAMINLARY, DEPUTY CHIEF BARKSDALE, GEORGE HUSSEY, AND MR. ELLENTUCK AS A MATTER OF LAW.
We find all of the arguments to be clearly without merit. R. 2:11-3(e)(1)(E). We add only the following:
MMC's answer pleaded the statutory immunity. The amended answer, filed for the individual defendants, did not. It is plainly inferable from the trial colloquy between court and counsel that plaintiffs' attorney not only knew MMC asserted the statutory liability limit, but also had no factual dispute as to its applicability.
Plaintiffs' post-judgment position was that MMC waived its statutory rights by non-assertion in the amended answer and by failure to offer evidence at trial. We disagree. The immunity was initially asserted, and never abandoned. At the trial, plaintiffs asserted Rova Farms*fn1 rights expressly based on the assumption that MMC had immunity. Plaintiffs' position at trial invited MMC to believe the matter of immunity was undisputed. Only when plaintiffs submitted a form of judgment for the full verdict amounts did the matter come to a head. MMC's counsel objected, supplied a copy of the certificate of incorporation of MMC's ...