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Demetria Garry As Guardian Ad Litem For Jaziyah Garry, A Minor, and Demetria Garry, Individually v. University of Medicine and Dentistry of New Jersey

April 6, 2011

DEMETRIA GARRY AS GUARDIAN AD LITEM FOR JAZIYAH GARRY, A MINOR, AND DEMETRIA GARRY, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, UNIVERSITY HOSPITAL,
UNIVERSITY HOSPITAL EMERGENCY MEDICAL SERVICES, DEFENDANTS-RESPONDENTS, AND NEWARK BETH ISRAEL HOSPITAL, DEFENDANT, AND UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, UNIVERSITY HOSPITAL, UNIVERSITY HOSPITAL EMERGENCY MEDICAL SERVICES, THIRD-PARTY PLAINTIFFS,
v.
ELENA KOSHKARELLA, R.N., AND LOVING CARE AGENCY, INC., THIRD-PARTY DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5854-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued January 13, 2011

Before Judges Fuentes, Gilroy and Nugent.

Plaintiff, Jaziyah Garry, a minor by her Guardian ad Litem Demetria Garry, and Demetria Garry, individually, appeal from the January 8, 2010 order that granted summary judgment to defendants University of Medicine and Dentistry of New Jersey (UMDNJ), University Hospital, and University Hospital Emergency Medical Services (collectively, the University Hospital defendants).*fn1 We affirm.

Viewed most favorably for plaintiffs, the motion record reveals the following. Jaziyah, born in August 2005, resided at home with Demetria in Newark. The child suffered from a congenital condition that required her to be maintained via a home ventilator with oxygen, a suction machine, and a feeding tube device in place. Demetria received in-home assistance in caring for her daughter from private-duty nurses through the Loving Care Agency, Inc. Elena Koshkarella, R.N., is a private duty nurse employed by the agency.

On June 2, 2007, Demetria requested emergency medical services for her daughter from the UMDNJ. The UMDNJ's ambulance and mobile intensive care unit (MICU) paramedics responded to the Garry home to transfer the child to Newark Beth Israel Medical Center.*fn2 The paramedics first exited the home, followed by Demetria who carried her daughter. Koshkarella next exited the home carrying the oxygen tank and ventilator equipment. Once outside the home, Demetria handed her daughter to one of the paramedics to place the child on a stretcher and then into the ambulance. Koshkarella handed the oxygen tank to another paramedic who placed the oxygen tank and ventilator onto the stretcher. Demetria and Koshkarella then entered the ambulance and accompanied the child to Newark Beth Israel Medical Center. En route to the hospital, the paramedics heard the oxygen tank hiss. Because the tank contained liquid oxygen and had been placed on or near the child's leg, Jaziyah suffered second-degree burns to her thigh and buttocks.

On July 27, 2009, plaintiffs filed an amended complaint against the University Hospital defendants and Newark Beth Israel Medical Center.*fn3 Plaintiffs asserted negligence against the University Hospital defendants for, among other things, failing to properly secure the oxygen tank during transport. Demetria also asserted a claim for emotional distress against the University Hospital defendants pursuant to Portee v. Jaffee, 84 N.J. 88 (1980). Lastly, plaintiffs asserted negligence against Newark Beth Israel Medical Center for failing to properly treat*fn4 Jaziyah.

On October 30, 2009, the University Hospital defendants filed a motion for summary judgment asserting qualified immunity pursuant to N.J.S.A. 26:2K-14. Plaintiffs opposed the motion asserting that they had not commenced discovery in the action, and that there was an issue of material fact as to whom placed the oxygen tank on or near the child's leg. On January 8, 2010, Judge Claude Coleman granted the motion determining that future discovery would not change the undisputed facts. The judge concluded that the paramedics had rendered advance life support services during transport in good faith and, therefore, were entitled to qualified immunity, pursuant to N.J.S.A. 26:2K-14. The court entered a memorializing order the same day.*fn5

On appeal, plaintiffs argue that the trial court erroneously: 1) granted summary judgment to the University Hospital defendants because there were material facts in dispute; 2) granted summary judgment before the close of discovery; and 3) concluded that the University Hospital defendants were entitled to immunity.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, 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); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler & Verniero, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2011). We employ the same standard that governs trial courts in reviewing summary judgment orders. Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J. Super. 563, 567 (App. Div. 2008).

In Point I of plaintiffs' brief, they argue that the trial court erroneously granted the motion for summary judgment, contending that there were material issues of fact in dispute as to whom had placed Jaziyah on the stretcher and who bore responsibility for reviewing the status of the oxygen equipment during transport to the hospital. Plaintiffs contend that contrary to the aforementioned facts, the University Hospital defendants had averred in their moving papers that Demetria had placed her daughter on the stretcher and had checked the placement of the oxygen tank while en route to Newark Beth Israel Medical Center. We disagree that such averments raise genuine issues of material fact requiring denial of the motion.

The University Hospital defendants conceded at oral argument that, for the purpose of the motion, the court should deem the facts as stated earlier in this opinion as true. The trial court did. Accordingly, no dispute of ...


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