October 2, 2012
MARISA THOMAS HANLEY AND LAURENCE THOMAS, INDIVIDUALLY AND AS CO-ADMINISTRATORS AD PROSEQUENDUM FOR THE HEIRS-AT-LAW OF EDWIN ELLIS, DECEASED, AND AS CO-ADMINISTRATORS OF THE ESTATE OF EDWIN ELLIS, PLAINTIFFS-APPELLANTS,
COLLINGSWOOD MANOR AND UNITED METHODIST HOMES, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6207-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 25, 2012
Before Judges Cuff, Lihotz and St. John.
Plaintiffs Marisa Thomas Hanley and Laurence Thomas, individually and as co-administrators ad prosequendum for the heirs-at-law of Edwin Ellis, and as co-administrators of the estate, appeal from an order dated July 31, 2009 (amended September 29, 2009), granting in part, defendants Collingswood Manor's (CM) and United Methodist Homes' (UMH) motion for partial summary judgment. The motion judge determined that defendants are protected by the New Jersey Charitable Immunity Act (Act), N.J.S.A. 2A:53A-7. Because immunity granted by the Act is an affirmative defense, the burden of persuasion is placed on the non-profit organization seeking to invoke the defense. The matter proceeded to trial. The jury returned a verdict of no cause for action. On appeal, plaintiff argues the motion judge erred by ruling that defendant was immune from liability for negligence due to charitable immunity. Plaintiff also contends that evidential errors require a new trial.
Our examination into the soundness of the partial summary judgment order in question is hampered by the motion judge's failure to adequately explain her reasons for the decision. Therefore, in light of the record and applicable law, and following our review of the arguments advanced on appeal, we remand to the trial court for fact-sensitive findings and legal conclusions.
The record on appeal reveals the following facts and procedural history relevant to plaintiffs' complaint, pretrial motions of defendants, as well as the subsequent trial and post-trial motions and orders.
Eighty-one-year-old decedent Edwin Ellis was a resident at CM, a non-profit assisted living facility, licensed as a comprehensive personal care home (CPCH). CM is located in Collingswood and is owned, operated, and controlled by nonprofit corporation UMH. There is no relationship between the Board of UMH and the Board of the Methodist Church nor is there any legal affiliation between the parties. On February 14, 2007, decedent died after succumbing to injuries he sustained from falling in his bedroom on January 18, 2007. Ellis suffered a vertebral fracture, which left him hospitalized for the final month of his life. The fall was documented as the fourth time, since his April 2006 admission to CM, Ellis had fallen and sustained injuries.
Plaintiffs' complaint alleged defendants were liable for Ellis' death, as the CM staff knew Ellis was at risk of future falls, but negligently failed to use ordinary care commonly exercised by residential care facilities and failed to properly secure him in his wheelchair or supervise him in his bedroom.
They further alleged Ellis died as a result of defendants' gross negligence in failing to properly monitor and provide a safe environment for him, and failing to properly evaluate and institute proper fall prevention intervention despite his previous falls.
Defendants asserted the affirmative defense of charitable immunity under the Act, which would immunize them for simple negligence, but not intentional conduct, reckless and wanton conduct, or gross negligence.
Plaintiffs deposed the Vice President of Operations for UMH, Eleanor M. Kinsey-Skroski, who stated:
[Defendants'] philosophy is once a resident moves into any level of care, they're never asked to leave because they can't afford us any longer, unlike some assisted living providers or nursing homes which would say, we don't take Medicaid, and have the person move out to a Medicaid facility.
Once they move into our system, they can stay for the rest of their lives. If they spin (sic) down their funds honestly, so to speak, and they truly do run out of the funds that were originally there when we originally approved the admission, we will ask the fellowship fund, that part of our organization, to fund that person's care the difference between whatever Medicaid dollars they can get, municipal funding they can get, and the normal cost of their care is paid for by fellowship. It's made up by the fellowship fund.
Additionally, by affidavit she certified that:
1. I am the Vice President of Operations of United Methodist Homes.
2. United Methodist Homes is a non-profit corporation organized under the laws of New Jersey.
3. United Methodist Homes has been organized exclusively for religious and charitable purposes.
4. Collingswood Manor has been organized exclusively for religious and charitable purposes.
5. Collingswood Manor is a non-profit senior living facility located in Collingswood, New Jersey owned, and is operated and controlled by non-profit corporation United Methodist Homes.
6. Collingswood Manor is a "nursing home" under the Federal Nursing Home Reform Act (FNHRA) and its Amendments.
7. The mission statement of United Methodist is to provide quality and caring services to senior men and women in a Christian Community.
8. The vision statement of United Methodist Homes is to strive to be the finest faith based communities serving senior men and women. UMH is dedicated to enriching the quality of life for those we serve and those who serve.
9. Reverend Edwin Ellis, as a resident of the Collingswood Manor facility, was a beneficiary of the mission and purpose of United Methodist Homes and Collingswood Manor.
10. At all times relevant to this case, no less than 45 percent of residents at Collingswood Manor are Medicaid eligible.
11. Collingswood Manor accepts Medicaid eligible residents directly from the regions' hospitals.
12. Collingswood Manor and United Methodist Homes have the same Board of Directors.
13. It is the directive of the Board of United Methodist Homes that 15 percent of assisted living residents be indigent.
14. Since its founding in 1907, no resident of any United Methodist Homes facility has ever been discharged or asked to leave for his or her inability to pay the cost of care.
The affidavit does not provide any facts relative to defendants' funding, including receipts of charitable contributions, a charter, daily operations, relationships to other entities, and the extent to which the organization lessens a burden on the government. Additionally, although it states that it is the directive of the Board "that 15 percent of assisted living residents be indigent[,]" the record does not disclose the actual percentage. Similarly, the statement that, since 1907, no resident has been asked to leave as a result of inability to pay, is not supported in the record by any data evincing the number of indigent residents, if any, allowed to stay.
The motion judge granted partial summary judgment to defendants finding, "I'm satisfied that the [Kinsey-Skroski] affidavit, as well as [her] testimony [in the deposition], established that the Manor, as well as United Methodist Homes, falls within the immunities pursuant to N.J.S.A. 2A:53A-7."
Thereafter, the matter was tried before a jury, which returned a "no cause" verdict in favor of defendants. Since defendants were immunized for simple negligence, plaintiffs' burden at trial was to prove intentional conduct, reckless and wanton conduct, or gross negligence.
We review the trial court's grant of summary judgment under the standard of Rule 4:46-2, which warrants summary judgment if the court finds that there are no genuinely disputed issues of fact. Davis v. Devereux Found., 209 N.J. 269, 286 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). The court must consider whether the competent evidential materials presented, viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party. Brill, supra, 142 N.J. at 540. Review of an order granting summary judgment is de novo; the appellate court need not accept the trial court's findings of law. Aronberg v. Tolbert, 207 N.J. 587, 597 (2011); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Charitable immunity is an affirmative defense that generally must be pleaded and proved by the party relying on the defense. R. 4:5-4; Rendine v. Pantzer, 276 N.J. Super. 398, 435 (App. Div. 1994), aff'd, 141 N.J. 292 (1995); Italian Fisherman, Inc. v. Commercial Union Assurance Co., 215 N.J. Super. 278, 282 (App. Div.), certif. denied, 107 N.J. 152 (1987). The burden of persuasion is by a preponderance of the evidence standard. Rendine, supra, 276 N.J. Super. at 435; Pagano v. United Jersey Bank, 276 N.J. Super. 489, 500 (App. Div. 1994), aff'd, 143 N.J. 220 (1996). Here, defendants bear the burden since they seek to invoke the affirmative defense of charitable immunity. Abdallah v. Occupational Ctr. of Hudson Cnty., Inc., 351 N.J. Super. 280, 288 (App. Div. 2002). N.J.S.A. 2A:53A-7(a) provides:
No nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes or its trustees, directors, officers, employees, agents, servants or volunteers shall, except as is hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association; provided, however, that such immunity from liability shall not extend to any person who shall suffer damage from the negligence of such corporation, society, or association or of its agents or servants where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association.
In our review of the motion judge's grant of summary judgment to defendants, we are guided by the principle that the Act's grant of immunity is to be applied liberally.*fn1
To gain the protection of the Act, a statutorily enumerated institution seeking immunity must demonstrate that it "(1) was formed for non-profit purposes; (2) is organized exclusively for religious, charitable or educational purposes; and (3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works."
[Tonelli v. Bd. of Educ., 185 N.J. 438, 444-45 (2005) (quoting Hamel v. State, 321 N.J.
Super. 67, 72 (App. Div. 1999)).]
A determination of whether an entity is organized solely for charitable, religious or educational purposes is made on a case-by-case basis and requires a fact-sensitive inquiry which looks "beyond [an entity's] benevolent acts." Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333, 344; see also Presbyterian Homes of Synod v. Div. of Tax Appeals, 55 N.J. 275, 285 (1970) (noting that the "term 'charity' in a legal sense is a matter of description rather than a precise definition"). Courts have found the analysis simpler where an organization serves solely educational or religious purposes, because "the terms 'educational' and 'religious' do have plain meanings that are subject to literal reading." Abdallah, supra, 351 N.J. Super. at 284. Where an organization claims a "charitable" purpose, "[w]hat is required is an examination of the entity seeking to clothe itself in the veil of charitable immunity to discover its aims, its origins, and its method of operation in order to determine whether its dominant motive is charity or some other form of enterprise." Parker v. St. Stephen's Urban Dev. Corp., Inc., 243 N.J. Super. 317, 325 (App. Div. 1990).
Courts conducting this inquiry have looked to an organization's funding, charter, daily operations, relationships to other entities, and the extent to which an organization lessens a burden on the government. See Bieker v. Cmty. House of Moorestown, 169 N.J. 167, 171 (2001) ("activities designed to raise monies in support of a charitable organization's core purposes generally contribute to those purposes and do not change the essence of the entity itself") (internal quotation marks and citation omitted); Parker, supra, 243 N.J. Super. at 325-26 (denying charitable immunity to a community housing corporation created solely to act as a conduit for government funding and not to lessen a government burden or to achieve any charitable purpose); Bixenman v. Christ Episcopal Church Parish House, 166 N.J. Super. 148, 151-52 (App. Div. 1979) (finding that a church did not lose its charitable immunity by leasing the church premises for a nominal fee to a church of a different denomination); Beicht v. Am. Polish Veterans, 259 N.J. Super. 79, 82 (Law Div. 1992) (denying charitable immunity to a fraternal organization because "[f]raternal societies or those organizations whose purpose is to promote the welfare of their members are benevolent, but not charitable"); Kirby v. Columbian Inst., 101 N.J. Super. 205, 208-9 (Law Div. 1968) (denying charitable immunity to a fraternal organization whose aims included the purchase of lands upon which the organization was to "erect thereon a clubhouse or other buildings"); Gould v. Theresa Grotta Ctr., 83 N.J. Super. 169, 171-172 (Law Div. 1964) (deeming charitable a nursing home whose financial support came from funds made available from the Jewish Community Council of Essex County, patients' fees, the Theresa Grotta Center Service League since 1962, Blue Cross payment for those patients who come from Beth Israel Hospital, Essex County Welfare, and contributions that come in the name of the Center), aff'd o.b.,
89 N.J. Super. 253 (App. Div. 1965).
Where the government provides funding to an organization and/or is involved on some level in the organization's decision making, courts engage in this same fact-sensitive inquiry. Courts have noted that "'the fact that a [non-profit corporation] happens to receive some government support would not alter its nature as a charity for immunity purposes' if it performs charitable services and is 'essentially supported through charitable contributions.'" Morales v. New Jersey Acad. of Aquatic Scis., 302 N.J. Super. 50, 55 (App. Div. 1997), quoting Parker, supra, 243 N.J. Super. at 327-28 (finding that state support of an aquarium in the form of a yearly lease of the physical facility for one (1) dollar, state representation on the Board of Trustees and significant state control over operations and decisions did not alter the aquarium's status as a charitable organization where the aquarium retained basic control over operations and received "a substantial amount of charitable contributions");*fn2 see also Pelaez v. Rugby Labs., Inc., 264 N.J. Super. 450, 457 (Law Div. 1993), (granting charitable immunity to a drug rehabilitation center even though the center received over eighty (80) percent of its funding from government grants, finding that the center actively solicited private funds which "lessens the government burden of providing such funding").
We have previously held "that N.J.S.A. 2A:53A-7 was not intended to immunize eleemosynary organizations from claims by fee-paying nonmembers arising from commercial activities geared to generate profit for the organization's charitable purposes." Kasten v. YMCA, 173 N.J. Super. 1, 7 (App. Div. 1980). Thus, a fee-paying non-member plaintiff injured at a ski area operated by the YMCA could pursue her tort claim against the YMCA. Ibid. Similarly, a non-congregation member attending a bingo game at a synagogue could pursue her claim for injuries incurred when a table at which she was sitting collapsed. Book v. Aguth Achim Anchai of Freehold, 101 N.J. Super. 559, 563-64 (App. Div. 1968).
Here, the decision of the motion judge does not set forth findings evincing a fact-sensitive inquiry including for example an examination of defendants' funding, charter, daily operations, relationships to other entities, and extent to which they lessened any burden on the government, in support of their burden of persuasion in asserting the affirmative defense of charitable immunity. We also note, plaintiffs offered no evidence challenging defendants' contention that they are organized solely for charitable, religious or educational purposes. Based on the affidavit and testimony presented, as well as the court's determination that plaintiff was a beneficiary, the court held that charitable immunity applied to defendants.
We remand for the judge's elaboration of the basis for the grant of partial summary judgment. See R. 1:7-4; Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2005) (requiring an adequate explanation of basis for court's action); State v. Roper, 362 N.J. Super. 248, 252-53 (App. Div. 2003) ("[I]t is the trial court's responsibility in the first instance to address and render a reasoned opinion upon any question brought before it [.]").
We next address the plaintiffs' additional contentions of error.
Plaintiffs argue that the motion judge erred when she barred one of their two experts, Dr. John Kirby, from testifying as to liability and the standard of care because his report did not use the term gross negligence. Plaintiffs reading of the judge's decision is unduly constrained. Although the judge did raise that issue in the ruling, her decision in barring the testimony was grounded on the net opinion rule.
In assessing an expert opinion, the motion judge may properly determine that the opinion amounts to a "net opinion" without holding an in limine hearing on admissibility. Kemp v. State, 174 N.J. 412, 426-29 (2000). The admissibility of expert testimony is guided by Evidence Rules 702 and 703. "Our Rules have fixed, clear guidelines that govern the admissibility of expert opinions and against which trial courts must make their evaluations." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011). "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 702.
"[T]he rule sets forth three basic requirements for the admission of expert testimony: '(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.'" [State v. Townsend, 186 N.J. 473, 491 (2006) (quoting State v. Torres, 183 N.J. 554, 567-68 (2005)).]
Additionally, an expert's opinion or inference must be based on "facts or data in the particular case . . . perceived by or made known to the expert at or before the hearing."
N.J.R.E. 703. See also Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008) (holding an expert's opinion must be founded on "facts or data"). In this regard, an expert's opinion cannot present merely a bare conclusion unsupported by factual evidence.
"The burden of proving that the testimony satisfies those threshold requirements rests with the party proffering the testimony." Hisenaj, supra, 194 N.J. at 15. In reviewing the admissibility of a proposed expert's opinion, the "court must ensure that the proffered expert does not offer a mere net opinion." Pomerantz Paper, supra, 207 N.J. at 372.
"The net opinion rule has been succinctly defined as 'a prohibition against speculative testimony.'" Koruba v. Am. Honda Motor Co., 396 N.J. Super. 517, 525 (App. Div. 2007) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997)), certif. denied, 194 N.J. 272 (2008). Because an expert's opinion must be founded on facts or data, "the net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" Townsend, supra, 186 N.J. at 494 (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)).
Dr. Kirby's report reached the following conclusion:
Failure of the Collingswood Manor staff properly and fully to assess the cause of each of Mr. Ellis' falls, failure to act on these assessments, failure to conduct and act on a medication review with assessment of orthostatic blood pressures and blood pressure medication modification as needed, failure to provide a seat belt or lap buddy for Mr. Ellis' wheelchair, and failure to move Mr. Ellis to a place in the nursing home where nursing staff would hear his alarm and respond promptly (before a fall occurred) allowed for the fall 1/18/07 in which Mr. Ellis fractured his first cervical vertebra. This cervical spine injury directly caused Mr. Ellis' death 2/14/07. Treatment required in the interval between Mr. Ellis' fall 1/18/07 and his death 2/14/07 included intubation, mechanical ventilation, and feeding tube placement and was undoubtedly uncomfortable.
The failure of Collingswood Manor to institute measures to prevent Mr. Ellis' 1/18/07 fall deviated from generally accepted community standards of medical care and the standard required by Federal and New Jersey state regulations.
A net opinion is one that "present[s] solely a bald conclusion, without specifying the factual bases or the logical or scientific rationale that must undergird that opinion." Polzo v. Cnty. of Essex, 196 N.J. 569, 583-84 (2008) (footnote omitted). The rule "frequently focuses . . . on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). Dr. Kirby's conclusion sets forth his opinion as to inadequate care provided to Ellis but fails to explain the causal connection between the care, the injury and the damages.
We grant "substantial deference to the evidentiary rulings of a trial judge," Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 319 (2006), and will not disturb such rulings absent an abuse of discretion, Hisenaj, supra, 194 N.J. at 12. We discern no reason to disagree with the motion judge that Dr. Kirby's reports neglected to provide the requisite "why[s] and wherefore[s]" that our jurisprudence requires from an expert's opinion. Rosenberg, supra, 352 N.J. Super. at 401 (internal citation omitted).
Remanded to the Law Division for further proceedings consistent with this opinion. The motion judge shall render her reasoned decision within forty-five days. We retain jurisdiction.