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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...