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Estate of Litwin v. Emeritus Corp.

United States District Court, D. New Jersey

July 12, 2017

ESTATE OF FRANCES LITWIN, et al., Plaintiffs,
v.
EMERITUS CORP., et al., Defendants.

          THE GRUBER LAW FIRM LLC By: Saul G. Gruber, Esq. Counsel for Plaintiffs

          WHITE AND WILLIAMS LLP By: Rafael Vergara, Esq. Robert Wright, Esq. Jaime M. Merritt, Esq. Counsel for Defendants

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This is a diversity[1] nursing home negligence suit. Presently before the Court is Defendants' unopposed Motion for Partial Summary Judgment as to Plaintiffs' claims for negligence per se (Count 2 of the Amended Complaint); punitive damages (Count 6); and violations of New Jersey regulations governing licensing of nursing home facilities (Count 7).

         For the reasons stated herein, the motion will be granted, leaving only Plaintiffs' claims for “general negligence, ” survival action, and wrongful death to be tried by a jury.[2]

         I.

         The following facts of record are deemed undisputed pursuant to Fed.R.Civ.P. 56(e); L. Civ. R. 56.1(a); and Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168 (3d Cir. 1990)(“a local rule [addressing unopposed motions for summary judgment] can and should be construed as effecting a waiver of the opponent's right to controvert the facts asserted by the moving party in the motion for summary judgment or the supporting material accompanying it.”).

         Plaintiff's decedent, Frances Litwin, was a resident of Emeritus at Voorhees nursing home when she suffered an unwitnessed fall in a common area of the facility. (Statement of Undisputed Facts, “SUF, ” ¶ 4; Answer to Interrogatory 1; Deposition of Robert Litwin, p. 80-81) Mrs. Litwin “smashed” her head, which caused “a subarachnoid hemorrhage, subdural hematoma, and an intraventricular hemorrhage which caused her death on June 4, 2013.” (Answer to Interrogatory 1)

         At the time of the fall, Mrs. Litwin was 79 years old, and had been diagnosed with Parkinson's Disease, degenerative joint disease, macular degeneration, osteoporosis, glaucoma, and dementia, among other things. (Defs' Ex. 6) She walked with the assistance of a walker. (Robert Litwin Dep. p. 71) Mrs. Litwin had a history of falls at the nursing home, with records indicating that she had fallen, or had been “observed on the floor, ” several other times in the months prior to the fall giving rise to this suit. (Id.; Robert Litwin Dep. p. 70)

         Plaintiffs contend that Defendants “fail[ed] to care, treat and supervise” Mrs. Litwin. (Answer to Interrogatory 2) Plaintiff Robert Litwin, Mrs. Litwin's son, testified at his deposition, “[w]hat made me think she didn't get reasonable care was that they told me specifically that there was no one supervising any of the residents in the common area when she fell and that she was on the floor from five minutes to a half an hour before someone noticed her.” (Robert Litwin Dep. p. 85)

         II.

         Summary judgment is appropriate where the Court is satisfied that “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' . . . demonstrate the absence of a genuine issue of material fact” and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)(citing Fed.R.Civ.P. 56).

         An issue is “genuine” if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. “In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.'” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(citing Anderson, 477 U.S. at 255).

         Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact.”); seealso Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, ‘the burden on the moving party may be discharged by ‘showing' --that is, ...


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