Before Judges Pressler, Parker and R. B. Coleman. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket Number L-2506-00.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiffs appeal from orders dismissing the complaint against each of the three defendants, Teaneck Volunteer Ambulance Corps (ambulance squad), Holy Name Hospital (Hospital) and Ferno-Washington, Inc. We affirm the dismissals of the claims against the ambulance squad and Ferno-Washington and reverse the dismissal of the complaint against the Hospital.
The basic facts giving rise to this cause of action are not in dispute. On April 2, 1998, the ambulance squad transported eighty-year-old Leroy Lauder to Holy Name Hospital because he was having difficulty breathing and was experiencing a "reduced level of consciousness." Brian Martin, a paramedic employed by the Hospital, was in the ambulance and attending to Lauder, who was strapped to a gurney. To facilitate Lauder's breathing during the transport, the paramedic removed the chest strap to place Lauder in a sitting position. The leg and lap straps remained fastened. Neither Martin nor anyone else refastened the chest strap and when Lauder was being removed from the ambulance, the undercarriage of the gurney collapsed, causing Lauder to fall and hit his head on the pavement.*fn1 Lauder died several days later from the injuries sustained in the fall.
Prior to trial, the ambulance squad and its members were granted summary judgment under N.J.S.A. 2A:53A-13, which provides immunity for members of volunteer first aid and rescue squads, and N.J.S.A. 2A:53A-13.1, which provides immunity for volunteer first aid or rescue squads.
The Hospital acknowledged that its employee, Martin, responded to plaintiff's home on April 2, 1998, and that he attended to plaintiff during transport to the Hospital. The Hospital claims, however, that the ambulance squad was responsible for moving plaintiff, and the squad members were responsible for checking the chest straps and folding legs on the stretcher to be certain they were in place. The Hospital claims that it was the ambulance squad members who lost control of the stretcher, causing plaintiff to fall and strike his head on the pavement.
On the day trial was scheduled to begin, the Hospital moved to dismiss on the grounds that plaintiffs had no expert on the proper conduct of either paramedics or ambulance personnel and had produced no evidence suggesting that Lauder's injuries would have been less severe if the chest strap had been fastened. The motion was granted.
On the same day, Ferno-Washington moved in limine, arguing that plaintiffs failed to provide an expert report indicating that there was a manufacturing or design defect and that plaintiffs could not proceed on a product liability claim without expert testimony. Ferno-Washington's motion was granted dismissing the complaint against it, as well. In this appeal, plaintiffs argue that the trial court was arbitrary, capricious and unreasonable in dismissing the claims against each of the defendants.
Plaintiffs contend that the ambulance squad is not a public entity as defined under the Tort Claims Act and should not be entitled to immunities. Independent of the Tort Claims Act, however, N.J.S.A. 2A:53A-13 and -13.1 specifically provide immunity to volunteer ambulance squads and their members from "damages as a result of any acts of commission or omission arising out of and in the course of the rendition in good faith of any such services.... No such immunity from liability shall extend to the operation of any motor vehicle in connection with the rendering of any such services." N.J.S.A. 2A:53A-13.
The ambulance squad responds that it is a public entity entitled to the defenses and immunities of the Tort Claims Act by virtue of Pallister v. Spotswood First Aid, 355 N.J. Super. 278 (App. Div. 2002), in which we reiterated our prior holding in Matter of Roy, 142 N.J. Super. 594, 599-601 (App. Div.) certif. denied, 71 N.J. 504 (1976), that volunteer ambulance squads are subject to the Tort Claims Act and that a complaint must be dismissed for lack of timely notice under the Act. Pallister, supra, 335 N.J. Super. at 280-81. In Pallister, we held that a plaintiff who was injured when the ambulance in which she was being transported was involved in an accident must satisfy substantial injury threshold under the Tort Claims Act.
Public entities are "liable [under the Tort Claims Act] for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances." N.J.S.A. 59:2-2a. The immunities granted to volunteer ambulance squads under N.J.S.A. 2A:53A-13 and -13.1 are broader in scope than those generally provided under the Tort Claims Act because a plaintiff must demonstrate an absence of good faith or intentional conduct. Here, the complaint against the volunteer ambulance squad sounds in negligence and does not allege intentional conduct, nor does plaintiff proffer any ...