On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6758-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Messano and LeWinn.
Plaintiff Celina Rodriguez's foot was fractured when the doors to an elevator in her apartment building closed on her. When the accident occurred, plaintiff was a client of defendant Midpoint Healthcare Services and accompanied by defendant Justina Velasquez, a State-certified home health aide employed by Midpoint. Rodriquez filed a complaint alleging: negligence by Midpoint in its hiring, retaining, training and supervision of Velasquez (count one); negligence by Velasquez and Midpoint in failing to provide assistance while she entered the elevator (count two); negligence by Velasquez in failing to provide care after the accident (count three); and wanton and willful conduct on the part of Midpoint and Velasquez (count four).
Summary judgment was entered in favor of Midpoint on count one and Midpoint and Velasquez (collectively, defendants) on count three. Counts two and four were tried to the jury but dismissed on defendants' motion for judgment at the close of plaintiff's case, which was not decided until the close of all of the evidence. Plaintiff appeals from those orders.*fn1
Plaintiff was born in 1943. Due to arthritic degeneration, her right knee was replaced in 1999 and her left knee was replaced in October 2002. Following both operations, plaintiff regained her ability to walk, gradually progressing from a wheel chair to walking with crutches, then with a walker, then with a cane and eventually without the assistance of any device.
In 2003, plaintiff moved to her apartment, which is on the fifth floor of the Villa Victoria building, and retained the services of Midpoint. Midpoint provided home health aides who assisted with bathing, shopping, cooking and light housework. Velasquez was the last in a series of aides supplied by Midpoint; she was assigned to work from 9:30 a.m. until 12:30 p.m.
Although plaintiff could walk without a cane by May or June 2003, in October 2003 she was still unsteady on her feet and holding her aide for support when she walked. According to Velasquez, she always walked with plaintiff and made sure that she did not fall; she took "a lot of precautions" because plaintiff's "legs were never, never okay" during the time that Velasquez "watched her."
On the morning of October 28, 2003, plaintiff's plans were to get a flu shot and go shopping. She and Velasquez left her apartment together, but when plaintiff stopped to lock her door, Velasquez went ahead to the elevator. Plaintiff walked down the hall to the elevator on her own by holding on to a railing on the wall. When plaintiff reached the elevator, Velasquez was inside the open elevator, leaning against its rear wall and holding a water bottle.
Plaintiff put her left foot into the elevator and grabbed the rail on its interior side-wall. Suddenly the doors closed on her. Her arm was hit and her right foot was caught between the doors. Plaintiff held the rail to avoid falling; her grip was so tight that her ring cut into her finger and bent. Plaintiff managed to free her right foot, the doors closed and the elevator descended. During the entire incident, Velasquez lent no assistance; she remained in the same position, leaning against its wall. In the past, plaintiff had noticed that the doors closed quickly, producing a sound like two cans banging together when they shut. Velasquez, at her deposition, said that the doors of the elevator closed too fast for a person who had physical problems and acknowledged that the doors struck plaintiff after Velasquez released the "door open" button on the elevator. By the time of trial, however, Velasquez did not recall seeing the doors hit plaintiff.
When the women reached the lobby, plaintiff sat down. She felt an "itching, burning pain" and removed her shoe and sock to check her foot. She saw only a "dent" on the right side and a "little pink mark." "She didn't think it was anything. [She] just thought it was a little scratch." Perceiving no reason for concern, she put her shoe and sock back on and proceeded to do what she had planned. She went to Villa Victoria's community room, where she got a flu shot, and then to her car with Velasquez, holding on to Velasquez as she walked to the car. Plaintiff was able to drive to the grocery store. Velasquez helped her while she collected her groceries and loaded them into the car.
By the time those tasks were completed, Velasquez's shift was at its end. Velasquez asked to be let out of the car at a spot closer to her home than plaintiff's, and plaintiff complied. Plaintiff admitted that she never told Velasquez that she was injured or needed medical attention.
Upon returning to Villa Victoria, plaintiff used a portable cart to bring her groceries up in the elevator and into her apartment. She ...