On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4496-08.
The opinion of the court was delivered by: Sabatino, J.A.D.
Before Judges Reisner, Sabatino and Alvarez.
The opinion of the court was delivered by SABATINO, J.A.D.
On leave granted, we review an interlocutory order denying a motion for partial summary judgment filed by twenty-two defendants in this wrongful death and survival action. In their motion, defendants sought to have the claims against them dismissed pursuant to the Charitable Immunity Act ("the Act"), N.J.S.A. 2A:53A-7. The motion judge denied the application, based upon his perception that genuine issues of material fact existed concerning the moving defendants' entitlement to the statutory immunity.
Because we are satisfied that defendants are entitled to the protections of the Act as a matter of law, and that no material factual issues need to be resolved concerning their immunity from plaintiffs' claims of ordinary negligence, we reverse the trial court's order denying partial summary judgment. However, we remand for further proceedings with respect to plaintiffs' claims alleging gross negligence and more severe wrongdoing, which are not immunized under the Act.
This tragic case arises from the death of Stephen J. Komninos ("Stephen"), a developmentally disabled young man, who died in October 2007 after he choked on a bagel. At the time of his death, Stephen was a resident of a community group home in Cherry Hill operated by defendant Bancroft Neurohealth, Inc. ("Bancroft"). All of the co-defendants who join Bancroft in this appeal have either been employed by, or otherwise affiliated with, Bancroft. Plaintiffs are Stephen's parents, who brought the instant action as the administrators of his estate.
As is customary in reviewing appeals from summary judgment rulings, we consider the factual record in a light most favorable to plaintiffs as the non-moving parties. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).
Stephen was born in July 1985. About a year after his birth, Stephen was diagnosed with multiple disabling conditions. Those conditions included severe static encephalopathy, autism, mental retardation, impulse control disorder, and severe developmental delay with cognitive, motor, and language limitations.
Shortly before his ninth birthday, Stephen was admitted to Bancroft's community group home program. During his thirteen years as a residential student, Stephen successively resided in three of Bancroft's group homes. These group homes are described in the record as "family-style households shared by six to eight clients supervised and trained by a house manager and round the clock professional staff."
While residing in the group homes, Stephen worked in various jobs at the Bancroft School, which included attending the parking lot, shredding paper, and helping to prepare and sell bagels. Stephen was regularly transported to and from the school facilities in a group home van. Stephen transitioned to Bancroft's "Adult Services" program in July 2007, at the age of twenty-two. He continued to reside in Bancroft's group homes as part of its "Adult Residential" program.
Stephen's June 2007 individual habilitation plan ("IHP") specified, among other things, that "[t]he residential team will continue to support Stephen with access to the community and provide transportation and supervision as required." However, Stephen was not authorized under his IHP to hold money, as he required the assistance of staff with "[a]ll aspects of purchasing." Further, the IHP specified that Stephen required "arms length supervision in the community to ensure his safety."
Due to safety concerns, the IHP stated that "Stephen [was not to be given] the opportunity to be alone at this time during awake hours." As of the time of his last IHP in June 2007, Bancroft's staff noted that "Stephen should never be left unsupervised due to possible problem behaviors and for safety concerns." Staff further noted that Stephen had a "lack of safety awareness," that he needed "assistance with daily living skills," and that Stephen's life plan should include "[i]ncreasing his independence with his self-care and domestic skills[.]"
One of the itemized goals in Stephen's June 2007 IHP was making a small purchase from a convenience store. The IHP indicated that, as of that time, Stephen was able to "make a small purchase from a convenience store with 80% accuracy." According to his IHP, "[v]arious staff working with Stephen will be implementing this goal. The goal should be practiced at least one time per week or when Stephen requests to go to a convenience store."
In order to facilitate the achievement of its residents' individualized goals, Bancroft employed "program associates." Those associates were hired to provide supervision, guidance, and instruction, both in the group home settings and in community environments. On May 11, 2007, Bancroft hired defendant Adam Allibone as such a program associate. At the time of his hire, Allibone was eighteen years old. Allibone was the associate assigned to Stephen's care on October 4, 2007, the day of the fatal incident.
Although Allibone's statements about what transpired on October 4, 2007 leading up to Stephen's death have varied to some degree, those variations, for the reasons we explain later in this opinion, are legally inconsequential with respect to plaintiffs' negligence claims. This much is clear. In the early evening of October 4, 2007, Allibone drove Stephen in one of Bancroft's vans to a 7-Eleven convenience store in Stratford. Allibone and Stephen got out of the parked van and went inside the store. Stephen took a bagel, left the store, and returned to the van. Allibone paid for Stephen's bagel and, as reflected by a cash receipt, also purchased a cigar for himself. Moments later, while back in the van, Stephen bit down on the bagel and began to choke. Allibone attempted to render aid and stop the choking.
As Allibone tried to clear Stephen's airway, a bystander called 9-1-1. An ambulance arrived and Stephen was transported to Kennedy Memorial Hospital in Stratford, where he was placed on life support. Four days later, Stephen was declared brain dead, and his life support was terminated. He expired on October 8, 2007.
In September 2008, plaintiffs filed a complaint in the Law Division against Bancroft, Allibone, and various other defendants affiliated with Bancroft (collectively, "the Bancroft defendants"), as well as 7-Eleven, Inc., and three individuals affiliated with 7-Eleven (collectively "the 7-Eleven defendants").*fn1 The complaint was amended in February 2009 to expand the allegations and the named defendants.
As amended, the complaint principally alleged that each of the defendants acted in a "negligent and/or grossly negligent" manner that led to Stephen's death. As to defendant Allibone individually, the complaint alleged intentional conduct, in addition to negligent and/or grossly negligent acts or omissions. Plaintiffs asserted causes of action for wrongful death and survival. Plaintiffs further pleaded claims of negligent hiring, staffing and administration; intentional and negligent infliction of emotional distress; negligent emergency procedures and/or rescue; fraudulent concealment of evidence; and violations of certain statutes and regulations pertaining to developmentally disabled ...