SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1930- 22 Estate of ALICE TRAINOR, by and through LINDA LACERDA, as administrator of the Estate of ALICE TRAINOR, and LINDA LACERDA, individually and on behalf of all heirs of Estate of ALICE TRAINOR, Plaintiff-Appellant,

v. ACTIVE DAY OF BRICK, SENIOR CARE CENTERS OF AMERICA, INC., d/b/a ACTIVE DAY, ADSC HOLDINGS, INC., Defendant-Respondent.

_____ __________________________

Submitted March 12, 2024

– Decided April 3, 2024 Before Judges Enright and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L- 2138

- 21. Law Office of Patrick Trainor, LLC, attorneys for appellants (Patrick Trainor, on the briefs).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1930

- 22 Parker, McCay, PA, attorneys for respondent (J. Brooks DiDonato and Ashley A. Varghese, on the briefs ).
PER CURIAM Plaintiffs

— the Estate of Alice Trainor, by and through Linda L acerda as Administrator and Lacerda individually and on behal f of all heirs of the
Estate

— appeal from a January 20, 2023 order granting summ ary judgment to defendant, Active Day of Brick, Senior Day Care Cen ters of America, Inc., d/b/a Active Day, ADSC Holdings, Inc. We affirm. Decedent, Alice Trainor, was living with vascular d ementia while she was attending adult day health care services at def endant's Active Day of Brick's facility. On January 7, 2020, 89-year-old Alice began walking toward the bathroom at defendant's facility, when another participant in the day program attempted to help her. Kellie Piaskowski, defendant's activities manager, intervened, returned the other participant to her seat, and then assisted Alice in proceeding toward the bathroom. Piaskowski stated in her deposition: I was attempting to guide Alice to the bathroom. I had

my hand, like open palm on her back, and I had my other hand under her arm. Under like her elbow. L ike that. So I was attempting to like guide her.3 A- 1930

- 22 We had not taken

— you know, we were nowhere near the bathroom. We were in what is considered t he activities/dining room. Alice was kind of like shuffling her feet a little bit . . . . She tripped over her feet. They got kind of like bundled, kind of bunched up, and she fell flat down

. And she banged her face onto the floor. Alice was transported by ambulance to Ocean Medica l Center, where she was treated for a contusion on her forehead with a superficial stellate laceration, a contusion near her left eyebrow, an a brasion on the bridge of her nose, and tenderness in her right shoulder and cerv ical spine. She was treated and released to rest at home with her daughter. Af ter being seen by her primary physician, Alice received no further medica l treatment for her fall injuries and returned to Active Day about a week la ter. After a few weeks, Alice was found unresponsive at home and taken to t he hospital where her condition deteriorated. Alice was sent home for ho spice care on February 18 and passed away at home on March 15, 2020. The dea th certificate listed her cause of death as respiratory failure due to conges tive heart failure. Plaintiffs filed suit on August 19, 2021, raising claims of simple negligence. In particular, the complaint alleged t hat defendant had a duty to provide Alice with a safe environment but failed to do so, resulting in Alice's sustaining severe injuries to her face, head, and b ody. Other counts asserted4 A- 1930

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negligent hiring and negligent staffing of the faci lity. The Estate also asserted a survivor's claim and a claim for negligent inflic tion of emotional distress. Plaintiffs moved to amend the complaint to add a cl aim of wrongful death, but the motion was denied as untimely. Defe ndant moved for summary judgment, arguing plaintiffs' claims failed because they had no medical expert to support them. The trial judge granted summary j udgment on January 20, 2023, finding plaintiffs had not provided an expert medical opinion asserting any causal relation between the alleged negligence and the injuries Alice suffered. This appeal followed.
We review a ruling on summary judgment de novo, apply ing the same legal standard as the trial court. Conley v. Guerr ero, 228 N.J. 339, 346 (2017). Thus, we consider, as the trial judge did, "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of la w." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1 995)). Su mmary judgment must be granted "if the pleadings, depositions, ans wers to interrogatories[,] and admissions on file, together with the affidavit s, if any, show that there is no genuine issue as to any material fact challenged and that the moving party5 A- 1930

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is entitled to a judgment or order as a matter of l aw." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 1 99 (2016) (quoting R. 4:46 -2(c)). Plaintiffs argue the trial court erred in granting summary judgment to defendant. They argue defendant maintained a 30- to -1 ratio of patients to staff 1

— well in excess of the state-mandated ratio of 9- to -1 and the Medicaid required ratio of 5- to -1. Citing Tierney v. St. Michael's Med. Ctr., 214 N.J. Super. 27, 30 (App. Div. 1986), plaintiffs argue th at, because of the extreme imbalance between patients and caregivers, the find er of fact can rely on the theory of res ipsa loquitur to infer defendant's "l ack of due care" and, therefore, negligence. The trial judge rejected th e argument unequivocally, saying "[t]his is not . . . under any stretch of th e imagination, it's not res ipsa loquitur." Plaintiffs argue medical causality is not in questi on, and a jury does not need an expert to determine whether defendant's 30- to -1 patient- to -staff ratio was a gross deviation from the standard of care. W e disagree.

1 The ratio of patients to staff at defendant's facil ity at the time of Alice's accident is a fact in dispute, but it is immaterial to plaintiffs' claim, as will be discussed below.6 A- 1930

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"The fundamental elements of a negligence claim are a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, injury to the plaintiff proximately caused by the b reach, and damages. " Shields v. Ramslee Motors, 240 N.J. 479, 487 (2020) (quoting Robinson v. Vivirito, 217 N.J. 199, 208 (2014))

. "Ordinarily, negligence is . . . 'a fact which must be proved and which will never be presum ed,' . . . [but t]he doctrine of res ipsa loquitur, where applicable, is a method of circumstantially proving the existence of negligence." Myrlak v. Po rt Auth. of N.Y. & N.J. , 157 N.J. 84, 95 (1999) (quoting Meny v. Carlson, 6 N.J. 82, 91 (1950) and citing Tierney, 214 N.J. Super. at 30). "Res ipsa loquitur is not a theory of liability; rather it is an evidentiary rule that go verns the adequacy of evidence in some negligence cases." Ibid. This theory allows a finder of fact to infer the defendant's lack of due care only when the thre e elements of the doctrine have been satisfied: "(a) the occurrence itself or dinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that th e injury was the result of the plaintiff's own voluntary act or neglect." Ibid. (quoting Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 269, (1958)).7 A- 1930

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To satisfy res ipsa loquitur, then, plaintiffs woul d need to demonstrate that an 89-year-old falling while being assisted by a caregiver "itself ordinarily bespeaks negligence"; the environment was within "d efendant's exclusive control"; and "there is no indication in the circum stances that the injury was the result of [Alice's] own voluntary act or neglec t." See ibid. The first element is not readily met under this record and pl aintiffs' theory of the case. Plaintiffs assert an excessive ratio of patients to staff suggests Alice was not receiving sufficient attention at the time of her a ccident and attempt to dispute defendant's contention she was receiving staff assi stance before her fall. Regardless of the overall ratio of patients to staf f that may or may not have been present at the time of Alice's accident, howev er, there is no evidence in the record to support an inference contradicting Pi askowski's sworn testimony she was assisting Alice when she fell. Furthermore , the scenario suggested by plaintiffs, that of an 89-year-old falling while wa lking unassisted, does not "ordinarily bespeak[] negligence"; it is unlikely t hat, even with assistance, such an accident would "ordinarily bespeak[] neglig ence." On this record, the third element would be difficult to satisfy as well , for similar reasons. Finally, even when successfully proven, res ipsa lo quitur only fills a gap in plaintiffs' negligence case with respect to a br each of the duty of care, not8 A- 1930

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with respect to the causal relationship between a p urported breach and the injury suffered. The causal relationship is what t he trial judge correctly found wanting here, though: "[U]nder no circumstances [i s] it appropriate or permissible to allow a lay jury [to] make a determi nation as to medical damages suffered by [Alice] without the benefit of medical testimony." Here, the jury would have no fact-supported means of judg ing whether defendant's purported short-staffing or Piaskowski's helping of Alice was the proximate cause of Alice's injuries. Even if plaintiffs were able to satisfy all the elements of res ipsa loquitur, the deficiencies in their neg ligence claim would still not be cured. Thus, the trial judge correctly proclaimed, "under any stretch of the imagination, it's not res ipsa loquitur." Plaintiffs' second argument, that no affidavit of m erit is required, was not raised to the trial judge and, therefore, need not be addressed by us. See State v. Jones, 179 N.J. 377, 404 (2004). Moreover , the argument is irrelevant, as the trial judge never stated an affidavit of mer it was necessary. In faulting plaintiffs for failing to provide exper t testimony as to causation of Alice's injuries, the trial judge was not referring to a procedural requirement such as the affidavit of merit. See N. J.S.A. 2A:53A-27. The court, instead, found plaintiffs had failed to put sufficient evidence in the9 A- 1930

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record that would permit a reasonable jury to decid e the case in plaintiffs' favor. The trial judge concluded a lay jury is ins ufficiently knowledgeable of the specifics of elder care and assistance to compe tently determine whether any purported short-staffing or Piaskowski's helpin g Alice to the bathroom was the cause of Alice's injuries. Lacking expert test imony to that effect, the trial judge determined defendant must prevail as a matter of law. Affirmed.