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Mierzwa v. Hackensack University Medical Center


May 12, 2009


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0949-08.

Per curiam.


Submitted: February 25, 2009

Before Judges C.L. Miniman and Baxter.

Plaintiff Edward J. Mierzwa appeals from an order of August 15, 2008, denying his motion for reconsideration of three orders entered on July 3, 2008, and one order entered on July 18, 2008. He also appeals from the orders sought to be reconsidered and from another order entered on May 6, 2008. We affirm.

One of plaintiff's claims arises from a verbal altercation he had with a parking lot attendant, Phil McGovern, at an off-campus psychiatric treatment facility operated by defendant Hackensack University Medical Center. Plaintiff drove through the gate of the parking lot when it was raised for the car in front of him, triggering the verbal dispute. The parking lot attendant was employed by an independent contractor, not by defendant. In the first count of his complaint, plaintiff sued defendant for "emotional distress" allegedly caused by this verbal dispute.

Plaintiff's other claim arises from defendant's attempts to secure payment from plaintiff for insurance copayments he owed the hospital, which sent them for collection. Plaintiff sued, not to adjust the amounts due, but for damages allegedly arising from "extortion" and "emotional distress."

Plaintiff instituted his action in the Special Civil Part, but later moved for a transfer to the Law Division. The motion was returnable on the Special Civil Part trial date, but plaintiff did not appear and his complaint was dismissed on December 18, 2007. The motion was granted that same day; however, the dismissal was not vacated.

The matter, at that point in the Law Division, was scheduled for mandatory arbitration on May 6, 2008, but plaintiff again failed to appear. An order of dismissal for lack of prosecution was entered on that date and plaintiff appeals from that dismissal.

After this second dismissal, plaintiff filed three motions seeking reinstatement of his complaint, partial summary judgment on the first count, and partial summary judgment on the second count. Defendant cross-moved for dismissal with prejudice. Plaintiff's three motions were denied by orders entered on July 3, 2008, from all of which defendant appeals. Defendant's cross-motion was granted on July 18, 2008, and plaintiff's complaint was dismissed with prejudice.

Plaintiff then moved for reconsideration of the denial of his three motions and for sanctions against counsel for defendant. That motion was denied on August 15, 2008, and a written decision accompanied the order of dismissal. The judge concluded that plaintiff had "fail[ed] to make a cognizable claim upon which a reasonable fact[-]finder could compensate him." He explained that defendant had no liability on the first count for the conduct of the parking lot attendant, who was not a hospital employee. As to the second count, plaintiff had acknowledged that he owed money to the defendant. This timely appeal followed.

Plaintiff has presented us with a mélange of arguments based on claims of "case fixing," "civil rights abuses," conspiracy by personnel in the Civil Division Clerk's Office, "impeachment" of the judge, consumer fraud, and various other accusations against defense counsel. The issue, however, is only whether plaintiff has presented a cognizable claim for emotional distress. In order to do so, plaintiff must present evidence of conduct "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988) (quoting Restatement (Second) of Torts § 46 comment d (1965)). Moreover, "the emotional distress suffered by the plaintiff must be 'so severe that no reasonable man could be expected to endure it.'" Ibid. (quoting Restatement, supra, § 46 comment j). Of course, the claim must be based on defendant's conduct. Tarr v. Ciasulli, 181 N.J. 70, 77 (2004).

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by plaintiff are without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by the judge in his written opinion dated August 15, 2008.

In addition, we note that it is patently obvious here that defendant has no legal liability for the acts of persons employed by independent contractors, such as McGovern and collection agency employees. Furthermore, plaintiff has presented no evidence of conduct by defendant sufficient to trigger a cause of action under Buckley, supra, 111 N.J. at 366.



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