On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1231-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2007
Before Judges Lintner and Graves.
Plaintiff Lee Bertoncella, as executrix of her mother's estate and individually, appeals from a summary judgment order entered on April 28, 2006, dismissing her wrongful death and survivorship action against defendants Capital Health System, Thomas Chetney, and Suzanne Genthe. Plaintiff also appeals from orders entered on May 12, 2006, and June 23, 2006, which denied her reconsideration motions. After reviewing the record and applicable law in light of the arguments advanced on appeal, we are convinced there are genuine issues of material fact that should not have been resolved by the motion judge. Therefore, we reverse and remand for such further proceedings as may be required to dispose of the case.
On February 1, 2002, Joyce Kruse (Kruse) who was sixty- seven years old, called 9-1-1 for medical assistance. When the East Windsor Volunteer Rescue Squad (the rescue squad) arrived on the scene at approximately 9:16 p.m., it found Kruse was conscious and alert, but agitated and in severe back pain. While Kruse was being evaluated by the rescue squad, she "passed out for 5/10 seconds [and] began vomiting." The rescue squad called a Mobile Intensive Care Unit (MICU),*fn3 which was owned by Capital Health System, for assistance. The MICU that responded was operated by defendants Thomas Chetney and Suzanne Genthe, two "mobile intensive care paramedics"*fn4 employed by Capital Health System, who were trained and equipped to provide advanced life support (ALS)*fn5 services. The MICU arrived at the scene at approximately 9:26 p.m. After evaluating Kruse's medical status, the MICU crew determined she did not require ALS and Kruse was released to the rescue squad, which was only qualified and equipped to provide basic life support (BLS).*fn6
The rescue squad departed for the hospital at 9:30 p.m., and the rescue squad records state Kruse was "unresponsive" when she was rushed into the emergency room at approximately 9:50 p.m.
Unfortunately, efforts to resuscitate Kruse were unsuccessful, and she was pronounced dead at 10:14 p.m. The cause of death was "acute myocardial infarction."
Plaintiff concedes defendants cannot be sued under a theory of negligence because they are protected by "good faith" immunity under N.J.S.A. 26:2K-14*fn7 and N.J.S.A. 26:2K-29.*fn8
Rather, to defeat "good faith" immunity, plaintiff must make a showing that defendants "'did not act in an objectively reasonable manner.'" Lauder v. Teaneck Volunteer Ambulance Corps, 368 N.J. Super. 320, 329 (App. Div. 2004) (quoting Frields v. St. Joseph's Hosp. & Med. Ctr., 305 N.J. Super. 244, 249 (App. Div. 1997)).
While case law involving good faith immunity as it relates to N.J.S.A. 26:2K-14 and N.J.S.A. 26:2K-29 is sparse, analogous authority exists involving the qualified immunity afforded public employees by N.J.S.A. 59:3-3.*fn9 "Good faith immunity under section 3-3 has two alternate components. A public employee either must demonstrate objective reasonableness or that he behaved with subjective good faith." Alston v. City of Camden, 168 N.J. 170, 186 (2001) (internal quotations and citations omitted). The question whether good faith immunity applies is generally "a question of fact to be resolved at a plenary hearing. Summary judgment under section 3-3, however, is appropriate if public employees can establish that their acts were objectively reasonable or that they performed them with subjective good faith." Canico v. Hurtado, 144 N.J. 361, 365 (1996) (internal citation omitted); see also Stoeckel v. Twp. of Knowlton, 387 N.J. Super. 1, 19 (App. Div.) ("We have held that the question of 'good faith' under N.J.S.A. 59:3-3 is generally a fact question to be resolved by a jury."), certif. denied, 188 N.J. 489 (2006); Frields, supra, 305 N.J. Super. at 248 ("[W]hether a person acted in good faith is often a question of fact which should be decided at a plenary hearing. . . . [E]ven a person who acted negligently is entitled to a qualified immunity, if he acted in an objectively reasonable manner." (citations omitted)).
In this case, plaintiff alleges defendants are not entitled to summary judgment because they "were reckless, did not act in good faith, or [they] did not act in a reasonably objective manner." To support her claims, plaintiff initially relied on a written report from her expert, Dr. Scott Slagel dated January 24, 2006. Nevertheless, following oral argument on April 28, 2006, the motion judge concluded Dr. Slagel's report was "not sufficient" to defeat defendants' motion for summary judgment:
Plaintiff points to the expert report of Dr. Slagel in order to create a genuine issue of material fact as to whether these defendants acted in good faith. With regard to that report, I have examined it. I find that that report speaks in terms of mere negligence. The fact that the expert used terms such as lack of good faith or recklessness does not raise that report to a higher level. I find that the language in the report is mere conclusory language and not sufficient with regard to the motion for summary judgment.
As a result, the [c]court finds that the plaintiff is unable to demonstrate that these defendants failed to act in good faith or that the conduct of these ...