February 22, 2011
RENCUI ZHANG, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF BAIYI WEI, DECEASED, PLAINTIFF-APPELLANT,
RIDGEWOOD YMCA, LAUREN MOORE AND ALYSSE FOUDY, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7488-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2011 - Decided
Before Judges Lisa and Alvarez.
Appellant, Rencui Zhang, brought a survivorship and wrongful death action against the Ridgewood YMCA, and its employees, Lauren Moore and Alysse Foudy, arising out of the death of her husband, Baiyi Wei. On February 19, 2010, the trial court granted defendants' motion for summary judgment and dismissed the complaint. The court found that because appellant had not presented competent medical expert evidence on the issue of cause of death her claim could not survive summary judgment. The court further found that the evidential materials could not support a finding of gross negligence, as required in this case under the Charitable Immunity Act (CIA), N.J.S.A. 2A:53A-7. Appellant argues that the court erred because she presented sufficient evidence in both respects to withstand summary judgment. We disagree with appellant and affirm.
On October 5, 2006, appellant and decedent, who were members of the YMCA, went to the facility to go swimming, as was their custom once or twice a week. Decedent was seventy-eight years old. He suffered from hypertension and insulin dependent diabetes. He had also been diagnosed several years prior to this incident with pleuritis and the possibility of cardiac pathology.
On October 5, 2006, Moore was on duty at the YMCA as the lifeguard and Foudy was on duty as the aquatic director. Appellant and decedent entered the pool but did not stay together. After about ten minutes, appellant lost sight of her husband, but saw the flotation device he had been using floating in the pool. According to her, she immediately called out to the lifeguard, who then blew her whistle and cleared the pool, but waited before taking further action.
Moore described the initial events somewhat differently. She contended that as she was making her usual repeated scans of the pool and its occupants she noticed that decedent appeared to be in distress. He was submerged and his face was distorted. Moore asked a woman in the pool whether the man next to her was alright, and the woman shrugged. At that point, Foudy approached the scene and asked whether everything was alright. Moore replied "no" and blew her whistle to clear the pool, while Foudy pressed an alarm to summon paramedics. According to Moore, one minute or less elapsed from the time she left her chair to the point that the alarm buzzer was pressed.
Moore said she then jumped into the pool and brought decedent's head above water. Foudy also entered the pool. This took no more than five to ten seconds. Moore and Foudy moved decedent to the side of the pool. Foudy directed Moore to retrieve the backboard so they could use it to lift decedent from the pool. Moore left to retrieve it, but before she returned, an unidentified man had assisted Foudy in lifting decedent from the pool and placing him on the deck. According to Moore, when decedent was removed from the pool, he was moving and struggling for breath.
Moore was licensed as a lifeguard and certified by the Red Cross in cardiopulmonary resuscitation (CPR). She was also trained in the use of an automatic external defibrillator (AED). Moore was five feet, four inches tall, and weighed about 115 pounds. She acknowledged that during her lifeguard training she was not able to lift an individual out of the pool weighing more than 180 pounds without assistance. Foudy was responsible for training and supervising lifeguards at the YMCA, in addition to her administrative duties. She too was certified in life guarding, CPR and AED use. She was also certified in oxygen administration and as a professional rescuer. Foudy was five feet tall and weighed about 109 pounds.
Immediately after removing decedent from the pool, Foudy was unable to detect a pulse. She began to perform chest compressions, while a colleague began to connect an AED to decedent. At that point, the paramedics arrived and took over decedent's care. The paramedics transported decedent to a local hospital, where he was pronounced dead. When he arrived at the hospital, he was in cardiac arrest and was unresponsive to various efforts to save his life. The cause of death noted in the hospital record was "sudden cardiac arrest." The death certificate specified the cause of death as "Cardiovascular Disease."
No autopsy was performed. Throughout the trial court litigation, until immediately before the hearing on defendants' summary judgment motion, appellant claimed that her husband had drowned in the pool. Appellant initially produced an expert report by Dr. Robert Sweeting, a physician at Bergen Regional Medical Center (BRMC). Based upon his review of decedent's medical records, Dr. Sweeting opined that it was "of even probability that [the] cause of death was secondary to drowning and possibly not of cardiac etiology as documented in his death certificate." (emphasis added). Dr. Sweeting further stated that "the true cause of [decedent's] death would have required an autopsy." Shortly before the discovery end date, defendants noticed appellant of their intention to depose Dr. Sweeting. Appellant responded that she had not retained Dr. Sweeting to be an expert and had no intention of calling him as a witness at trial. Based on that information, defendants filed their summary judgment motion.
On February 16, 2010, three days before the return date of the motion, appellant submitted a new report by Dr. Stephen H. Jacobs, a physician at BRMC, who had treated decedent between May 2003 and September 2006. Appellant now contended that defendant did not drown, but that his chance of survival after experiencing a medical episode was substantially decreased because of prolonged submersion in the pool. Dr. Jacobs noted in his report that he did not have complete medical records, was not aware of any symptoms that would explain the reason decedent went under the water, and that there had been no autopsy. Because of the gaps in available information, he cautioned that any statement on his part as to "the cause of [decedent] going underwater and not being able to arise by himself is completely conjectural." (emphasis added).
Nevertheless, Dr. Jacobs hypothesized several reasons why decedent may have collapsed in the pool, including myocardial infarction, insulin induced hypoglycemia, and stroke. He then relied on statistical data indicating that individuals suffering such episodes had a much lower survival rate if the episode occurred when submerged in water for a prolonged period. He then concluded that submersion in water was a substantial cause of decedent's death if his initial episode was from any of the hypothesized causes of his collapse.
In addition to arguing that appellant could not prove medical causation, defendants argued that she could not prove negligence, let alone gross negligence. Appellant argued that gross negligence could be found in either of two ways. First, she argued that Moore and Foudy were slow in responding. She said Moore did not respond for two to three minutes after the initial emergency was called to her attention, and it then took another five minutes to remove her husband from the pool. Second, appellant argued that because of Moore's small stature and her admitted inability to single-handedly remove an individual weighing more than 180 pounds from the pool, the YMCA was grossly negligent for hiring her, regularly assigning her to this duty, and allowing her to be the only lifeguard on duty. Decedent weighed about 200 pounds.
The trial court found that there was no excuse for the late submission of Dr. Jacobs' report, and that, under the court rules, it should not be considered. Alternatively, the judge considered the contents of the report, finding Dr. Jacobs' opinions inadequate to establish that the YMCA or its employees caused decedent's death. The judge also found that gross negligence could not be established.
On appeal, appellant argues that Dr. Jacobs' report should be considered notwithstanding its late submission, and that the report is sufficient to enable a jury to find medical causation. Appellant has narrowed the scope of her gross negligence argument, limiting it to the negligent hiring theory. For purposes of our analysis, we will consider the substance of Dr. Jacobs' report, although we have serious misgivings about whether it is worthy of consideration because of its late submission.
Summary judgment should be granted if the pleadings, depositions, answers to interrogatories and admissions, together with affidavits, "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The court must view the evidence in the light most favorable to the nonmoving party, together with all reasonable inferences in favor of that party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). The court must determine whether the competent evidence, thus viewed, is sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the nonmoving party, in which case judgment may not be entered against that party. Id. at 540. If the evidence is so one sided that one party must prevail as a matter of law because there exists a single, unavoidable resolution of the alleged factual dispute, then the trial court should not hesitate to grant summary judgment. Ibid. On appeal, our review is de novo, and we apply the same standard as the trial court in reviewing the grant or denial of summary judgment. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
There is no dispute before us regarding the applicability of the CIA. Although appellant disputed its applicability in the trial court, appellant now concedes that the YMCA and its employees are protected by the CIA. The issues before are therefore limited to medical causation and gross negligence. Further, as we previously stated, appellant has narrowed her gross negligence theory to negligent hiring.
We begin with gross negligence. The CIA does not grant immunity for injury caused by a "willful, wanton or grossly negligent act of commission or omission" of a charitable organization or its employees. N.J.S.A. 2A:53A-7c(1). Willful or wanton conduct is that "done with the knowledge that injury is likely to, or probably will, result. Because risks that are recklessly incurred are not considered unforeseen perils or accidents in the eyes of the law, actions taken with reckless disregard for the consequences also may be wanton or willful." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999) (citation omitted). In Foldi v. Jeffries, 93 N.J. 533, 549, (1983), the Supreme Court described the wanton and willful standard as an "intermediary position between simple negligence and the intentional infliction of harm."
Gross negligence is defined as "conduct that comes somewhere between 'simple' negligence and the intentional infliction of harm, or, 'willful misconduct.'" Ivy Hill Park Section III v. Smirnova, 362 N.J. Super. 421, 425 (L. Div. 2003) (citing Clarke v. Twp of Mount Laurel, 357 N.J. Super. 362 (App. Div. 2003)). Gross negligence requires "indifference to consequences," Banks v. Korman Assocs., 218 N.J. Super. 370, 373, (App. Div. 1987), and may be equated with willful or wanton conduct. See Stelluti v. Casapenn Enters., LLC, 408 N.J. Super. 435, 457 n.6 (App. Div. 2009), aff'd 203 N.J. 286 (2010).
Appellant contends that "under New Jersey case law two factors play heavily into the determination of whether conduct amounts to gross negligence: (a) whether the negligent act(s) extend over a lengthy period of time or were frequently repeated; and (b) the magnitude of harm risked by the [d]efendant's negligent conduct." (citing Foldi, supra, 93 N.J. 533, and Stelluti, supra, 408 N.J. Super. 435)). She argues that the YMCA was grossly negligent based upon the "negligent hiring and repetitive use of a lifeguard who was wholly physically incapable of rescuing anyone of any significant weight." She reasons that each shift Moore was scheduled to work constituted an instance of negligence on the part of the YMCA. Accordingly, the mere negligence of hiring Moore rose to the heightened level of gross negligence because of her regular scheduling and continued employment, and the risk posed by the use of a swimming pool.
In support of her argument, appellant relies on two cases. In Ivy Hill, supra, 362 N.J. Super. at 425, the Special Civil Part found that a tenant had been grossly negligent for placing a pot on the stove when he was so tired that he fell asleep. In Foldi, supra, 93 N.J. at 551, the Court, while interpreting the willful or wanton standard, noted that a mother did not act with willful or wanton disregard by letting her child wander off in her own backyard. The court noted that the result may have been different if the lapse in attention occurred near a railroad track. Ibid.
Neither of these examples is helpful in understanding how defendants' actions were negligent, much less grossly negligent. Moore was a trained, certified and licensed lifeguard. There is nothing in the record to suggest any industry standard that requires greater qualifications. Despite appellant's descriptions of her helplessness and lack of ability to rescue anyone of significant size, Moore entered the pool and pulled decedent's head out of the water. Further, it is immaterial whether Moore was capable of pulling decedent out of the water without assistance. Foudy and another person pulled him out. There is nothing in the record to suggest that decedent's head was allowed to be resubmerged at any time. Therefore, there is no causal link between this asserted negligence and the event to which it would be applied.
Unlike either of the factual situations that appellant suggests, defendants here were present, attentive, and made every effort to save decedent. Rather than falling asleep with the stove on, or allowing her wards to wander off resulting in injury, Moore was present and attentive to the needs of the swimming population. Although there is a dispute as to the quickness with which she noticed decedent's distress, there is no contention that Moore failed to respond to the emergency, or that Moore and Foudy failed to get the decedent's head out of the water and then get him out of the pool.
No rational factfinder could find that the YMCA was grossly negligent for hiring Moore and assigning her to regular duty alone at the pool. As stated, even if such negligence could be found, its sole basis would be her inability to lift a 200 pound person out of the pool without assistance, a circumstance which has no causal link to what occurred in this case. Accordingly, defendants were properly granted summary judgment under the CIA.
We also agree that Dr. Jacobs' report was insufficient to get appellant to a jury on the issue of medical causation. To be admissible, expert testimony must concern subject matter beyond the average juror's understanding, be sufficiently reliable, and be offered by a sufficiently qualified expert. DeHanes v. Rothman, 158 N.J. 90, 100 (1999) (quoting State v. Kelly, 97 N.J. 178, 208 (1984)). The expert must be able to explain the basis for his or her opinion. State v. Moore, 122 N.J. 420, 458--59 (1991). "Expert testimony should not be received if it appears the witness is not in possession of such facts as will enable him [or her] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture." Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 299 (App. Div.), certif. denied, 122 N.J. 133 (1990) (quoting Clearwater Corp. v. City of Lincoln, 277 N.W.2d 236, 241 (Neb. 1979)).
The "net opinion rule" provides that when an expert's opinion amounts to an unsupported conclusion it not admissible. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). Particularly as it relates to medical causation, an expert must be able to present the rationale for his or her conclusions. Jimenez, v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.) certif. denied, 145 N.J. 374 (1996).
Defendants argue that Dr. Jacobs never offered a medically certain opinion that decedent's death was caused by his submersion in the pool. Indeed, Dr. Jacobs' report basically stated that he was speculating as to possible causes of decedent's submersion in the pool, because he did not have full access to decedent's records, and because decedent's family refused an autopsy. Therefore, he merely compared survival rates of various conditions which decedent may have experienced with the survival rate of prolonged submersion under water.
Dr. Jacobs failed to connect these generic statistics to any of the relevant facts and circumstances in this case. He did not provide the required basis for his conclusion that submersion for some unspecified length of time was a factor, let alone a significant factor, in causing decedent's death. We agree with the trial court's rejection of Dr. Jacobs' report as lacking in substantive merit and being insufficient to support a finding that the death was caused or contributed to by prolonged submersion.
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