United States District Court, D. New Jersey
GRUBER LAW FIRM LLC By: Saul G. Gruber, Esq. Counsel for
AND WILLIAMS LLP By: Rafael Vergara, Esq. Robert Wright, Esq.
Jaime M. Merritt, Esq. Counsel for Defendants
L. HILLMAN, U.S.D.J.
a diversity 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
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
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.”).
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)
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)
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)
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).
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).
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, ...