On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-1937-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Yannotti.
Plaintiffs Nancy Goldberg and Marshall Goldberg*fn1 appeal from a February 13, 2007 order of the Law Division that involuntarily dismissed their negligence claim against defendant At Home Medical following the close of their proofs at trial. See R. 4:37-2(b). We reverse.
The trial evidence showed that in 2002, plaintiff began working as a hospice nurse for the Somerset Hills Visiting Nurse Association (VNA) in Bernardsville. Her duties included caring for terminally ill patients in their homes.
On March 10 or March 12, 2003,*fn2 plaintiff visited the home of Frank Nunez, a bedridden patient who lived in Martinsville. Nunez was seventy-eight years old, five feet eight inches tall, and weighed more than three hundred pounds; he suffered from lymphedema, the "swelling of the body due to fluid retention." Plaintiff's duties with respect to Nunez's care included maintaining his catheter; monitoring his skin, lungs, and vital signs; and changing the sheets on his bed. Located in Nunez's home were a hospital bed, an overhead trapeze, a bedside stand, a "Hoyer lift," and a bedside commode. Hoyer is a brand of patient lift manufactured by Sunrise Medical, and which At Home Medical supplied to Nunez. Plaintiff testified that At Home Medical's delivery technician, Miguel "Mike" Caceres, had instructed Nunez's daughter, Sandy, on how to use that particular Hoyer lift. When plaintiff went to Nunez's home, she reviewed the instructions with Sandy, and "[Sandy] showed [plaintiff] that she knew how to work [the lift]."
The VNA had a policy that a nurse must be present whenever a patient had to get out of bed for mechanical repairs to the bed. Plaintiff was sent to Nunez's home because Caceres had to replace the motor on Nunez's hospital bed, which required him to take the bed apart.
Before plaintiff used the lift to remove Nunez from the bed, she tested it by "pump[ing] it up" and "releas[ing] it." She and Caceres then rolled Nunez over, she put the Hoyer lift's sling underneath Nunez, and they rolled Nunez back over the sling. Then she and Caceres used the lift to pump Nunez as high as the lift would elevate him, and they slid the lift three feet away from the bed so Caceres could replace the motor. After Caceres completed work on the bed, which took about twenty-five minutes, plaintiff and Caceres moved Nunez back over the bed while he was still in the lift.
Plaintiff testified that when Caceres tried to lower Nunez back to the bed, the bed did not work. Although she and Caceres raised the bed underneath Nunez as high as it would go, Nunez remained six to eight inches above the bed.
By that time, the straps holding Nunez were cutting into his legs because he suffered from edema. Plaintiff determined, however, not to call the emergency squad, believing that because of Nunez's edema, they should not wait for the emergency squad to get there. She testified that, at Caceres's suggestion, she and Caceres decided to cut the straps to the sling holding Nunez above the bed, using a box cutter belonging to Caceres.
She and Caceres positioned themselves on the sides of the bed. She held her hand under Nunez's back while he cut the bottom strap supporting Nunez's legs. Then Caceres cut the top strap holding Nunez on his side. Caceres handed the box cutter to plaintiff, who first cut the leg strap, and then cut the upper strap with her right hand while her left hand was under Nunez. Plaintiff testified that Nunez then fell onto her left hand, and that she "felt a pop in [her] back on the right side," and a "tenderness in her right buttock."
Plaintiff intended to read portions of Caceres's deposition testimony as part of her case. Instead of having plaintiff read the deposition to the jury, for purposes of the Rule 4:37-2(b) motion, with the consent of the parties, the court considered the following testimony from the deposition transcript.
Caceres testified that when he arrived at Nunez's home to repair the bed, plaintiff already had Nunez elevated in the lift and out of the bed. He testified that cutting the straps was plaintiff's suggestion, and after raising the bed, the distance between Nunez and the bed was only one inch. Using a steak knife from Nunez's kitchen, plaintiff cut each of the straps. Caceres was positioned on the same side of the bed as was plaintiff. As plaintiff cut each strap, he would grab the strap and lower Nunez to the bed. They only cut the two straps at Nunez's feet, and they lifted the other two straps out of the Hoyer lift.
Nunez was not harmed during the incident. As a result of her injury, plaintiff only worked sporadically. She received physical therapy and spinal injections of pain medication and ...