On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1668-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Alvarez.
Plaintiffs Edward J. Griffin, individually and as Administrator Ad Prosequendum for the Estate of Edward L. Griffin, and Philomena and Ralph Papa, husband and wife, appeal from the May 28, 2010 grant of summary judgment dismissing their complaint against defendants Bayshore Medical Center, Bayshore Community Hospital, and Bayshore Health Care and Rehabilitation Center, based on the Charitable Immunities Act, N.J.S.A. 2A:53A-7 to -13.1. The trial court also denied plaintiffs' request for leave to amend the complaint to include allegations of gross negligence, carelessness, and/or recklessness. For the reasons that follow, we affirm.
Plaintiffs filed their separate personal injury claims in one complaint. We were not supplied with a copy of the original complaint; however, an amended complaint dated April 30, 2009, was provided in plaintiffs' appendix. On April 26, 2010, when defendants filed their motion for summary judgment, plaintiffs filed a cross-motion for leave to file a second amended complaint.
In granting defendants' application and denying that of plaintiffs, Judge Cleary relied on the fact that defendant Bayshore Health Care Center, a nursing home or long-term care facility, "supplied a certificat[e] of incorporation and has certified that it is in good standing as a non-profit corporation." Judge Cleary thus concluded defendants had satisfied the charitable immunity test found in Hamel v. State, 321 N.J. Super. 67, 72 (App. Div. 1999). She also held that despite plaintiffs' request, gross negligence could not be established even if the time for discovery were extended. She further determined plaintiffs' motion to amend their complaint a second time should be denied because it was not filed within the relevant statute of limitations and that, in any event, charitable immunity principles barred these claims as well. As a result, she dismissed the complaint with prejudice.
Plaintiff Edward J. Griffin, as administrator ad prosequendum for the Estate of Edward L. Griffin, sought compensation for personal injuries suffered by decedent on October 16, 2007, when he tripped and fell on a one and one-half-inch protrusion on the sidewalk in front of Bayshore Nursing Home. Decedent, then ninety-one years old, was on his way in to the facility to visit his wife, who was convalescing in the home. He was accompanied by his son, now the administrator of his estate. Decedent appeared initially to be only minimally injured, but in fact fractured a bone, the "C2 vertebral body with fracture of the odontoid process." Later that day, decedent was admitted to the intensive care unit at Bayshore Hospital, where he remained until his death on November 6, 2007.
The second plaintiff in the complaint is Philomena Papa, who, on March 3, 2008, was visiting her husband in the same nursing home when she also tripped and fell over the same protrusion in the sidewalk. She sustained serious injuries, including a broken left kneecap and the fracture of the orbit of her eye. Papa was admitted to Bayshore Hospital and was discharged on March 14, 2008. She was eighty-six when she fell, and has relied upon a cane since the accident because of pain to her knee. Both decedent and Papa had visited the facility on prior occasions.
The nursing home, known as Bayshore Health Care Center, is a non-profit corporation. Plaintiffs claim that the for-profit Bayshore Rehabilitation Systems, Inc., may be a subsidiary of, or connected in some other fashion to, Bayshore Health Care Center. They assert that the for-profit status of Bayshore Rehabilitation Systems, Inc., casts doubt on the non-profit status of Bayshore Health Care Center.
This despite the fact that Karl H. Meinert, Senior Vice President of Corporate Services for Bayshore Community Healthcare Services, certified that Bayshore Rehabilitation Systems, Inc., is not affiliated with any of the entities comprising Bayshore Community Health Services. Bayshore Health Care Center is one of several providers known as Bayshore Community Health Services. In addition to not being affiliated with the nursing home, Bayshore Rehabilitation Systems, Inc. is located in a non-Bayshore Community Health Services-owned medical professional building, albeit on the same road as Bayshore Community Hospital. Although the certification does not explain the similarity in name, plaintiffs were unable to connect Bayshore Rehabilitation Systems, Inc., to the nursing home or its related corporate entities after extensive interrogatories and depositions.
Janos M. Angeli, Corporate Director of Facility Management and Planning at the nursing home, is responsible for maintenance of both buildings and grounds. He testified that he was never informed about any protrusion in the sidewalk. He learned about decedent's injuries in the fall of 2007, but asserted his subsequent visual inspection of the sidewalk revealed nothing that would "raise a major concern." He defined a "major concern" as major cracks or crumbling. When shown a photograph of the relevant sidewalk's condition, however, he admitted it would be a major concern. He also testified it was only after Papa tripped that the area was marked with caution tape. The sidewalk was not replaced until May 2, 2008, when he noticed it "heaved from the previous winter."
Michael J. Panzino, who had previously worked as a maintenance mechanic for the nursing home, certified reporting the protrusion in the sidewalk to Joe Altivala, the Director of Plant Operations, after decedent's fall, but before the incident with Papa, in December 2007. He never saw Altivala inspect the sidewalk.
Plaintiffs' engineer, William Poznak, P.E. & L.S., prepared a report stating the sidewalk was in an "unsafe condition" which "could  easily cause [persons] to trip and fall." He also opined the "condition had existed for quite some ...